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December 21, 2011 -- In
M.M. Schranz Roofing, Inc & Transportation Ins. Co. v. First Choice
Temporary, Metlife Ins. Co., LIRC & Eddie Crews, appeal no
2011AP345 (Wis. Ct. App. December 21, 2011) (recommended for publication),
the court affirmed LIRC's decision
finding that Schranz/Tranportation must reimburse First Choice/Metlife for
over 3 million dollars in compensation paid after Eddie Crews (now deceased)
fell off a ladder while working on a roofing project that Schranz had
contracted with Milwaukee Public Schools. Schranz' contract with the school
district required that 20 percent of the work be performed by minority
subcontractors. The commission found that to help meet this requirement
Schranz told Crews to sign up for employment with First Choice (a temporary
help agency), and then Schranz arranged for Freeman (a minority individual
with a sole proprietorship construction business) to hire Crews, ostensibly
for his business. But Schranz had all along intended to have Freeman "loan"
Crews back to Schranz for its roofing project. Crews had previously been
working directly for Schranz as a roofer. After all this had taken place
Crews fell off the roof while performing the work under Schranz'
supervision. Schranz had been paying Crews' wages to Freeman, who had been
taking a cut out of them before giving the balance to First Choice, who then
paid Crews' wages out of the remainder. First Choice thought that Crews was
working for Freeman.
Schranz asserted that First Choice acted as a statutory
temporary help agency (Wis. Stat. 102.01(2)(f)) when it hired Crews and
placed him with Schranz, thus making First Choice the liable employer
pursuant to Wis. Stat. 102.04(2m). The court adopted LIRC's rejection of
this argument on the basis that Wis. Stat. 102.04(2m) attaches liability
only to temporary help agencies that have "placed or leased" the injured
employee with the employer with whom the injury occurs. First Choice placed
Crews with Freeman not with Schranz. A key fact for LIRC and the court was
that First Choice was not a knowledgeable participant in Schranz' plan, and
therefore did not "place" Crews with Schranz. The Seaman Body tests (204
Wis. 157) for loaned employees apply to this case, as was held in the Dist.
I case decided in 2001. Application of those tests demonstrates that Crews
was loaned to Schranz by Freeman, making Schranz the "special employer" of
the "loaned employee," Crews. Freeman escapes liability because he had no
implied or express employment contract with Crews.
September 23, 2011 -- The Supreme Court today
granted a petition for review in
Aurora Consolidated Health Care & Sentry Ins. v. LIRC & Jeffrey Schaefer,
2010 WI App 173, 330 Wis. 2d 804, 794 N.W.2d 520,
where the Court of Appeals affirmed LIRC's finding
of permanent total disability; affirmed LIRC's interpretation of Wis. Stat. 102.17(1)(g), allowing
admission of an independent medical opinion without cross-examination of the
independent physician; and affirmed that the denial of cross-examination in
this context is not a violation of due process.
[More recent developments...]
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