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Labor Ready6/21/2005
Before Fine, Curley and Kessler, JJ.
This is an appeal by a temporary help agency, Labor Ready, Inc., and its insurance carrier, Lumbermen's Mutual Casualty Co. (collectively, "Labor Ready") from an order of the circuit court which affirmed the decision of the Labor and Industry Review Commission (the "Commission") holding that Carnett Powell ("Powell") was entitled to worker's compensation for an injury he sustained on January 28, 2002, while he was at the premises operated by Labor Ready awaiting a possible work assignment. Labor Ready argued, before the Commission and before the circuit court, that Powell was not an "employee" under the worker's compensation statute. Because we conclude that the Commission and the trial court correctly applied the law to the facts in this case, we affirm.
BACKGROUND
Labor Ready is a temporary help agency, which operates essentially as a hiring hall. The contract between Labor Ready and those seeking work assignments (titled "Application for Employment") requires that the persons seeking work physically present themselves each day at the Labor Ready facilities and remain there until they have a work assignment. According to the contract signed by Powell, Labor Ready does not provide work assignments by phone, and does not guarantee an assignment simply because the person appears at Labor Ready's dispatch hall.
Powell completed his Application for Employment on January 17, 2002. He received work assignments on the following Monday through Thursday, January 20 through 24. On the following Monday, January 28, he arrived at Labor Ready at about 5:15 a.m. and was approximately the seventh person in line waiting for the doors to open at 7:00 a.m. Another work seeker cut into the line, ahead of Powell and others. Powell told him he should wait in line like everyone else. Later, after Powell had signed in and was waiting for work, he went to the receptionist desk and asked for a coffee filter. At that time, without warning, the line jumper hit Powell on the right side of his head. Powell fell on his left shoulder, breaking it. At the time he was attacked, Powell had not received a work assignment for that day.
Powell filed for worker's compensation. Labor Ready denied the claim, asserting that Powell was not an "employee" as that term is used in Wisconsin statutes. The administrative law judge agreed with Labor Ready. Powell appealed to the Commission, which determined that Powell was an employee for purposes of the worker's compensation law. Labor Ready appealed that determination to Milwaukee County Circuit Court. The trial court affirmed the Commission. This appeal followed.
STANDARD OF REVIEW
At issue is whether Powell was an employee acting in the scope of his employment at the time of his injury. This requires interpretation of Wisconsin's worker's compensation statutes. "Frequently, we defer to an administrative agency's interpretation of a statute, the agency's experience, technical competence, and specialized knowledge aid the agency in its interpretation and application of the statute." DOC v. Schwarz, 2005 WI 34, , 279 Wis. 2d 223, 693 N.W.2d 703 (citation and internal quotation marks omitted). When reviewing an agency's statutory interpretation, this court generally applies one of three standards of review, with varying degrees of deference. Id.
"First, if the administrative agency's experience, technical competence, and specialized knowledge aid the agency in its interpretation and application of the statute, the agency determination is entitled to "great weight." The second level of review provides that if the agency decision is "very nearly" one of first
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