CARNETT S POWELL, Applicant

LABOR READY INC, Employer

LUMBERMENS MUTUAL CASUALTY CO, Insurer

The applicant submitted a petition for commission review alleging error in the administrative law judge's Findings and Order issued in this matter on August 23, 2002. Labor Ready, Inc. and Lumbermen's Mutual Casualty Company (respondents) submitted an answer to the petition and briefs were submitted by the parties. At issue are whether the applicant sustained an injury arising out of and in the course of his employment with the employer, and if so, nature and extent of disability and liability for medical expense. An average weekly wage of $270 was conceded.

The commission has carefully reviewed the entire in this matter and hereby reverses the administrative law judge's Findings and Order. The commission makes the following:

On Thursday, January 17, 2002, the applicant completed an application for employment with the employer, a temporary help agency. Exhibits submitted by the respondents indicate that the employment application procedure included signing a consent to drug/alcohol testing, signing an agreement not to release confidential information about the employer, completing a W-4, signing an acknowledgement that when accepting a work assignment the applicant was an employee of the employer and not of the employer's customer, and completion of a safety training program which included a 20-question test. Individuals who completed the employment application process, such as the applicant had done, were required to report to the employer's premises (dispatch hall) on any day in which they wished to work. Such individuals were required to sign in with the employer's receptionist indicating his/her availability for work that day, and then wait to see if he/she would be assigned. The employer's door opened at 7 a.m. Work assignments were not guaranteed, and were not necessarily on a first-come- first-served basis. If an individual had a particular skill needed by the employer's customer, that individual might be chosen even though he/she had signed in later than others. Assignments were on a day-to-day basis. The employment application materials indicated that at the end of the day each employee was "deemed to have quit" until reporting again to the dispatch hall and being given another work assignment.

The applicant received his first work assignment from the employer on Monday, January 21, 2002. The employer also assigned him to employment the following Tuesday through Thursday, and the record is unclear both as to whether he reported for assignment on Friday, January 25, 2002, and as to whether if he did report that day he was actually assigned to work. On Monday, January 28, 2002, the applicant arrived at the employer's premises at 5:15 a.m. to get a good spot in line. There were seven people in line in front of him, but before the door was opened, an individual named A. Thomas cut in at the front of the line. The applicant said to him that he should get in line like everyone else, but Thomas ignored him and signed in with the receptionist. After the applicant signed in, Thomas threatened him by asking him to step outside, but the applicant told him he had no time for such nonsense and ignored the threat. At approximately 7:05 a.m., Thomas approached the applicant from the side and struck him in the jaw, knocking him to the floor. He sustained a concussion as well as a comminuted fracture and dislocation of his left shoulder.

The applicant established an express contract of hire with the employer beginning with his first work assignment on January 21, 2002. He had completed a detailed employment application process and received work in accordance with the procedure established by the employer. The employer's written policy, to the effect that at the end of each workday the applicant was deemed to have quit, has no legal effect for purposes of worker's compensation. Private agreements cannot alter the rights afforded under a statutory compensation act. (1)   An individual's employment status under Wisconsin's Worker Compensation Act presents a factual/legal question for the commission to determine pursuant to the intent of the statutes. (2)

Accordingly, the commission must determine what the applicant's employment status was at the end of each workday for the temporary help agency; and more particularly, what his employment status was between his last actual work assignment and the moment he was injured on the employer's premises. Stated more broadly, at what point does an individual's employment relationship with a temporary help agency end, once it has been established by formal hiring and an actual work assignment? The commission has not had occasion to address this particular issue in any worker's compensation case. However, it has addressed it in determining whether an employment relationship existed for purposes of an unemployment insurance claim.

In Anthony S. Jones v. Seek, Inc., UI Decision Hearing No. 99601034MD (LIRC July 6, 1999), the commission found that an employee's employment relationship with a temporary help agency had not ended even though his last work assignment had ended on a Friday, because the following Monday the temporary help agency contacted the employee and informed him that they would find another job for him within a week. The commission referred to its longstanding statutory interpretation in such matters, which had been cited with approval by the court in A.O. Smith Corp. v. ILHR Dept., 88 Wis. 2d 262, 267, 276 N.W.2d 279 (1979):

The Commission held that, when work and payment of wages cease, the presumption is that a total severance of the employer-employee relationship has occurred. However, where there was "evidence that at the time of layoff there existed an assurance, expressed or clearly implied by circumstances, that work and wages would be resumed at an ascertainable time in the not too distant future," the relationship continues. (Emphasis added)

In Anthony Jones, the commission further found:

. . . the law has always provided that the employment relationship continues when there is credible assurance that work will be resumed at an ascertainable time in the not too distant future. The emphasis should be on the credibility of the assertion that the temporary help employer actually had a foreseeable reassignment for the laid-off employe, as well as the employe's availability and willingness to accept such reassignment, rather than on the number of days the employe would have had to have waited for such reassignment. (3)

The record in the case at hand reveals that the applicant had received a work assignment when reporting early to the employer on Monday through Thursday of the week prior to his injury. As previously noted, the record is unclear with regard to the circumstances of Friday of that week, but it is clear that only one week day or no week days transpired between the applicant's last actual work assignment and January 28, 2002. The applicant's employment application indicates that he had 20 years experience as a forklift operator and in shipping/receiving work; 10 years experience in heavy equipment operations; 8 years experience in electronics assembly, manufacturing/fabrication, and electrical wiring; 6 years experience in painting; and 3 years experience in machine shop work. He therefore possessed skills frequently used by temporary employers. He arrived at the early hour of 5:15 a.m. on Monday, January 28, 2002, and was the eighth person on the employer's sign-in list. He was clearly willing and available for work. Given these circumstances, the commission infers that it was reasonably foreseeable that he would have received a work assignment from the employer on the day he was injured. Accordingly, the commission finds that the employment relationship he had established with this temporary help agency was intact at the time he was injured.

In addition, it is important to note that the employer required the applicant to report to its premises and sign in for the purpose of receiving a work assignment. No alternative method for assignment was established in the record. This employer- imposed arrangement provides significant benefit to the employer, allowing it to choose from a ready pool of pre-hired and pre-screened individuals to fill labor requests from its customers, with none of the delays or uncertainties inherent in contacting individuals not on the premises. As stated in Hackley-Phelps-Bonnell Co. v. Industrial Commission, 165 Wis. 586, 590, 162 N.W. 921 (1917):

Here the employee, as we have pointed out, was still performing a duty imposed upon him by his employer and one necessary to perform before the terms of the contract of employment were mutually satisfied.

The Hackley case involved a logger who was injured while riding an employer- provided logging train, at the direction of his foreman, to go from logging camp to the employer's office to obtain his paycheck prior to leaving for vacation. He was held to be covered. The facts of Hackley are not directly analogous to the case at hand, but the principle that an injury sustained while performing an employer-imposed duty is applicable.

In Pederson v. Industrial Commission, 201 Wis. 599, 231 N.W.267 (1930), the court cited approvingly to cases which found coverage for employees who had been discharged, but who were injured within a reasonable period of time after the discharge, while picking up their final wages on the premises and at a time chosen for that purpose by the employer. This approach was adopted by the commission in a 1994 decision in which coverage was denied because the time interval between the discharge and the date of injury was too substantial to have been considered a "reasonable interval." (4)   However, coverage for applicants who are injured while on the employer's premises for an employment-related purpose and pursuant to the employer's direction, even though the actual employment duties have been interrupted for a reasonable interval, is the law in Wisconsin. Accordingly, even were it to be found that the applicant's employment relationship with the employer had temporarily ended the previous Thursday or Friday, his employment would be deemed to have resumed on Monday morning, January 28, 2002. On that morning, he was on the employer's premises at the employer's direction for an employment-related purpose, within a reasonable interval after his last work assignment.

The most recent medical report in the record is dated March 29, 2002, and is from Dr. David Kornreich, who performed an open reduction and internal fixation procedure on the applicant's left shoulder on January 28, 2002. On March 29, 2002, Dr. Kornreich indicated that the applicant needed additional physical therapy, and that he was unsure whether additional surgery would be required. He indicated that he would see the applicant again in one month. There is no subsequent medical report in the record. The commission therefore finds that the applicant has demonstrated that he was temporarily totally disabled from January 28, 2002, through April 29, 2002, based on Dr. Kornreich's clinic notes up to and including the one written on March 29, 2002.

The applicant is therefore entitled to 13 weeks and one day of temporary total disability, representing the period between January 28, 2002 and April 29, 2002 (both dates inclusive). At the applicable rate of $180 per week, this amounts to a total of $2,370.00. A 20 percent attorney's fee, plus $53.54 in costs (representing records charges from St. Joseph's Hospital) is due against this award.

The only evidence concerning the applicant's disability status between April 30, 2002, and the date of hearing on June 19, 2002, consists of invoice summaries from St. Joseph's Hospital indicating that the applicant continued to receive physical therapy through at least May 28, 2002. The commission will exercise its discretion to leave the order interlocutory with respect to his disability status between April 30, 2002, and June 19, 2002, because apparently due to the focus on the coverage issue, no questions were asked at the hearing concerning the applicant's medical/disability status during this period.

The applicant's summary of medical expenses (Exhibit F) indicates total charge of $38,468.69 from St. Joseph's Hospital of Milwaukee, $333.70 to "Drs. Bauwens, et al.," and $105.30 for medical mileage expense (no summary of dates was submitted for the medical mileage expense). It also indicates $19,787.21 as having been paid by the non- industrial carrier CIGNA. The actual invoice summaries presented, including the credits for payment made by CIGNA, and credits attributed to "Allow Health Care Net," total approximately $9,000 less than the figure of $38,468.69. In addition, medical support should be submitted for treatment received subsequent to April 29, 2002. Given the uncertainties inherent in the WKC-3 as submitted, the commission will also leave the matter interlocutory with respect to the issue of medical treatment and medical mileage expense. The applicant should immediately provide the insurance carrier with a new summary and accounting of medical expenses, which have been incurred as a result of the work injury. The insurance carrier shall thereafter make immediate payment of all outstanding expenses and reimbursements due, which it does not have a reasonable basis for contesting. For any contested expenses there shall be opportunity for new hearing regarding their reasonableness and necessity.

The order will also be interlocutory with respect to the issues of additional disability including vocational retraining benefits, and with respect to medical expenses which may be incurred subsequent to the date of hearing.

Now, therefore, this

The Findings and Order of the administrative law judge are reversed. Within 30 days from this date, the respondents shall pay to the applicant as compensation for temporary total disability the sum of One thousand eight hundred forty-two dollars and forty-six cents ($1,842.46); and to the applicant's attorney, Patrick M. Cooper, fees in the amount of Four hundred seventy-four dollars ($474.00), and costs in the amount of Fifty-three dollars and fifty-four cents ($53.54).

Jurisdiction is reserved for such further findings and orders as may be warranted.

Dated and mailed May 21, 2003
powelca2 . wrr : 185 : 9 ND § 2.11 § 3.29 

/s/ David B. Falstad, Chairman

James A. Rutkowski, Commissioner

/s/ James T. Flynn, Commissioner

No credibility/demeanor issues concerning the applicant's testimony arose in this case. The applicant's testimony was undisputed.

cc: 
Attorney Patrick M. Cooper
Attorney Richard E. Ceman, Jr.

Appealed to Circuit Court. Affirmed February 27, 2004. Appealed to the Court of Appeals.  Affirmed June 21, 2005, sub nom. Labor Ready and Lumbermen's Mutual v. LIRC and Powell, 2005 WI __, __ N.W.2d __  (2004AP1440, publication recommended)

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(1)( Back ) See Graebel v. Moving and Storage v. LIRC, 131 Wis. 2d 353, 355, 389 N.W.2d 37 (Ct. App. 1985); Enderby v. Industrial Commission, 12 Wis. 2d 91, 95, 106 N.W.2d 315 (1960); Scholz v. Industrial Commission, 267 Wis. 31, 39, 64 N.W.2d 204 (1954); Porter v. Industrial Commission, 173 Wis. 267, 271, 181 N.W. 317 (1921).

(2)( Back ) See Village of Prentice v. ILHR Dept., 38 Wis. 2d 219, 221-22, 156 N.W.2d 482 (1968); Enderby v. Industrial Commission, 12 Wis. 2d at 94.

(3)( Back ) This standard was recently reiterated in Kathleen A. Zenil v. Seek, Inc., UI Decision Hearing No. 02403573AP (LIRC April 10, 2003).

(4)( Back ) See Roy L. Dodge v. Lakeland Tree Service & Liberty Mutual Ins. Co., WC Claim No. 91070969 (LIRC Nov. 2, 1994). See also, Arthur Larson, Larson's Workers' Compensation Law, § 26.03 (2002).

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