COREY J WEED, Applicant
ELECTRO CONNECT INC, Employer
In January 2006, the applicant filed an application for hearing claiming he was discharged in retaliation for filing a worker's compensation claim. The matter was heard by an administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development on September 19, 2007. Prior to the hearing, the employer conceded jurisdictional facts, an accidental injury arising out of the applicant's employment on October 18, 2005, and an average weekly wage of $490. At issue is the employer's liability under Wis. Stat. § 102.35(3) for an unreasonable discharge or refusal to rehire.
On November 19, 2007, the ALJ issued an order dismissing the application. The applicant filed a timely petition for commission review.
The commission has considered the petition and the positions of the parties, conferred with the presiding ALJ concerning witness credibility and demeanor, and reviewed the evidence submitted to the ALJ. Based on its review, the commission makes the following:
The employer does electro-mechanic assembly work, involving the distinct areas of circuit board assembly, wire harness assembly, and mechanical assembly.
The applicant was a lead worker or supervisor in the employer's wire harness area. He did machine set-up and operation, and trained other workers. He was hurt in a motor vehicle accident in the employer's parking lot on October 18, 2005. The employer has conceded the occurrence of a compensable work injury.
The applicant treated on the day of injury for neck and back strain. See exhibit 4. He reported an injury to a foreman, Steven Coran, and asked the employer's owner's wife, Deborah Hamedi, for the name of its worker's compensation carrier. According to the applicant, Ms. Hamedi (who worked in the employer's office) initially refused to tell him the name of its carrier. The applicant testified that when Ms. Hamedi subsequently refused to discuss filing his worker's compensation claim with the employer's insurer, he contacted the Department of Workforce Development, obtained the name of the employer's worker's compensation insurer, and filed the claim with the worker's compensation insurer himself.(1)
The employer's owner, Mr. Hamedi, flatly denied his wife refused to provide the worker's compensation insurer's name. Transcript, page 60-61. Mr. Hamedi did not know, however, when the worker's compensation claim was filed with the insurer. Transcript, page 76 and 79. Mr. Hamedi did acknowledge there was some delay in the reporting of the injury to the insurer, indicating that the delay was because the employer was not immediately aware that the accident--a motor vehicle accident outside the employer's factory building in its parking lot--could be a worker's compensation injury. Transcript, page 80-81. However, one of the employer's own documents is a "Worker's Compensation Injury Report" from Community Memorial Hospital where the applicant treated on the October 18, 2005 date of injury (exhibit 4). This report indicates the hospital contacted the employer and spoke with Mr. Hamedi about 2:00 pm on the day of injury.
The applicant treated with Jeffrey Gorelick, M.D, who took him off work completely from October 21 to November 22, 2005. Exhibit 2. While the applicant was off work, Mr. Hamedi had to do the employee's work setting up machines in the wire harness area which was time consuming. Transcript, page 45. About the same time, Mr. Hamedi had been thinking of hiring a production manager, though not necessarily to replace the applicant or his duties.
The employer in fact hired a production manager, Paul Goral, in early November 2005, to run the circuit board production area. Mr. Hamedi then asked Mr. Goral to take over the applicant's former duties. Mr. Goral did so, and also cross-trained other workers in the wire harness area. As a result, the applicant's position as lead worker or supervisor in the wire harness area ceased to exist. Transcript, pages 50-51
On November 13, 2005, when the applicant had been off work about four weeks, Mr. Hamedi sent him a letter, exhibit 1, indicating the employer had been required to fill his job in his absence to get its work done. At this point, the applicant was still off work completely under Dr. Goreklick's restrictions. According to Mr. Hamedi, he felt he had to terminate the applicant's employment because the applicant's job really no longer existed.
The applicant testified that upon receiving the November 13 letter he called the employer to find out what the letter meant. He spoke with Mr. Hamedi who told him that he had been discharged because he filed a worker's compensation claim, and that it was his (Hamedi's) right to fire him. The applicant responded that Mr. Hamedi did not have to fire him, but Mr. Hamedi became upset and hung up before the applicant could ask about returning to work in another job. Transcript, pages 23-24. Mr. Hamedi acknowledged that the two men did have a conversation about the November 13 discharge letter. Transcript, page 55. Mr. Hamedi did not testify in any detail about the conversation, though he did testify that he never told the applicant not to pursue his worker's compensation claim.
On November 23, 2005, the applicant's doctor released him to work subject to a 20-pound lifting and carrying limit, no pushing or pulling and no repetitive bending, effective the next day, November 23, 2005. Exhibit 2. The applicant immediately forwarded this set of work restrictions to the employer by facsimile transmission. Transcript, page 28.
Mr. Hamedi testified the applicant's job as lead worker or supervisor in the wire harness area required pulling, pushing, and repeated bending, twisting and lifting, and that the applicant could not do those tasks under the final set of work restrictions that were effective on November 23, 2005. Exhibit 2, transcript 70-71. The applicant's testimony bears out the conclusion that his former job was relatively heavy. He had to lift cables weighing 55 to 60 pounds. He had to lift transformers weighing 40 to 50 pounds, and he had to do shipping and packing work which involved lifting up to 60 pounds. Transcript, page 37.
Mr. Hamedi testified that the employer's production department included jobs doing circuit board assembly, and that it was not necessary for these production employees to do heavy lifting. Transcript, page 64. Mr. Hamedi does not appear to testify as to whether any of these jobs were open at any point after the applicant was discharged in November 2005. However, Mr. Hamedi also did not testify that the applicant could not be placed in a circuit board assembly job because there were no available openings, as he did with respect to the electromechanical work or work in the wire harness area. See transcript, page 52, 75. Indeed, Mr. Hamedi's testimony about using a temporary help service to obtain circuit board assembly workers leads to the inference that there were openings after the applicant's discharge. Rather, Mr. Hamedi testified the applicant could not do circuit board assembly work because he lacked the necessary training and skills.
Specifically, Mr. Hamedi testified that he did not believe the applicant had the skills to work in other areas of the plant (transcript, page 62), that the applicant was not cut out for the work assembling circuit boards (transcript, page 63), and that he knew the applicant could not do the work because the applicant had never been trained for the soldering position. (Transcript, page 82.) Mr. Hamedi testified that the employer's circuit assemblers:
...have many years of experience in solder. These are already skilled workers, actually screened already very often when it comes to hiring new employees, when we are looking for somebody to hire, we go to the temporary service, we say they must have previous surface amount or circuit board assembly knowledge of microscope. So we screen the candidates very carefully before they work in that area....
Transcript, page 75.
Mr. Hamedi also testified the applicant did not have any soldering certificates. Transcript, page 82. The applicant, on the other hand, testified that he had certificates for soldering (including advanced soldering techniques) from an earlier employer, that he had given the certificates to the employer with his job application and resume, that among the skills he had acquired in his prior employment was soldering circuit board assembly, and that he had done soldering work for the employer in the past. Transcript, pages 9 and 84-86.
Wisconsin Stat. § 102.35(3), provides as follows:
102.35(3) Any employer who without reasonable cause refuses to rehire an employee who is injured in the course of employment, where suitable employment is available within the employee's physical and mental limitations, upon order of the department and in addition to other benefits, has exclusive liability to pay to the employee the wages lost during the period of such refusal, not exceeding one year's wages....
As stated in Dielectric Corp. v. LIRC, 111 Wis. 2d 270, 278 (Ct. App. 1983), 111 Wis.2d at 278:
Under [Wis. Stat. § 102.35(3)], once the employee has suffered a worker's compensation injury, the question initially becomes: does the employer have good cause not to rehire. If the employee is rehired, the rehiring cannot be a pro forma rehiring. Therefore, if there is an eventual discharge, the employer must show that there is no bad faith on its part to evade this statute and that the rehired employee was discharged with good cause.
This "very correct standard" set out by the court in Dielectric was adopted by the supreme court in West Bend v. LIRC, 149 Wis. 2d 110, 121 (1989). In that case, the supreme court stated that "after an employee shows that she has been injured in the course of employment and subsequently is denied rehire, it becomes the burden of the employer to show reasonable cause for not rehiring the employee." West Bend, at 149 Wis. 2d 123.
The commission has previously held that an employer is under no duty to keep a job open for an injured worker indefinitely. Snyder v. Lakeshore Marine, WC Claim No. 95004097 (LIRC, January 30, 1998). See also Fruth v. Town of Wheatland, WC Claim No. 2003-033619 (LIRC, June 2, 2006). In other words, Wis. Stat. § 102.35(3) does not guarantee reemployment in every case. Dielectric, at 111 Wis. 2d 278, footnote 6 (stating the court "d[id] not believe the legislature intended lifetime job protection.) The statute itself uses a "reasonable cause" language, as reflected in the court of appeals holding in Ray Hutson Chevrolet, Inc., v. LIRC, 186 Wis. 2d 118, 123 (Ct. App. 1994) that:
A business decision to reduce costs can, by itself, establish the reasonableness of the decision. We conclude that if an employer shows that it refused to rehire an injured employee because the employee's position has been eliminated to reduce costs and therefore to increase efficiency, the employer has shown reasonable cause under § 102.35(3).
In this case, the applicant has established that he was an employee of the employer who was injured and subsequently discharged by the employer. The burden thus shifts to the employer to show reasonable cause for discharging or not rehiring the applicant.
The employer contends that the applicant's machine set up duties were necessary to its operations on a daily basis, so that it reasonably hired another worker to do those duties when the applicant still had not returned to work after a few weeks. The employer also contends it did not rehire the applicant in other suitable work within his physical and mental limitations, because there was no such work available or because the applicant lacked the skills to do the other work.
The commission is satisfied the applicant could not perform his job as lead worker or supervisor in the wire harness area within his physical restrictions when the employer discharged him on November 13, 2005. The commission also agrees that the employer had no legal obligation to keep the applicant's job unfilled indefinitely while he was unable to do his former job duties. The employer's decision to hire another worker to perform the applicant's duties in the wire harness area when the applicant was unable to do so was not unreasonable.
However, the commission cannot conclude that the employer has shown reasonable cause for not rehiring the applicant, or returning him to work, in other suitable employment. The production work soldering or assembling circuit boards was within the applicant's physical restrictions. While those duties required some skill--raising the question of whether the work was suitable--the applicant testified he has soldering certifications and in fact had performed such work in the past.
On this point, the commission is inclined to believe the applicant's testimony. His testimony about his soldering skills and certifications was more detailed than Mr. Hamedi's general assertions that the applicant was not cut out for the circuit board assembly work and had not been trained. Further, when he testified about the skills and training necessary to do the circuit board assembly work, Mr. Hamedi stated that he recruited through temporary help employers and emphasized prior job experience, not specific certifications, in prospective employees. This indicates that the circuit board work was not overly sophisticated or specialized, making it more likely that the applicant's skills were adequate.
Finally, the applicant's credible testimony that the employer did not report the applicant's claim to its worker's compensation insurer, even after the applicant asked it to do so, cannot be overlooked. At best, the fact that the applicant was required to report the injury himself indicates the employer lacks a basic understanding of its duties under the worker's compensation law generally and its duty under Wis. Stat. § 102.35(3) to provide suitable work within an injured worker's physical and mental limitations specifically. At worst, the employer's failure to report the applicant's claim to the insurer leads to an inference it was hostile to his claim. Either way, the commission is not persuaded that the employer reasonably believed the applicant was unqualified to perform the work soldering circuit boards. Nor does the commission believe that specific jobs doing circuit board assembly work were not open (or did not become open) after the applicant faxed his work restrictions to the employer on November 23, 2006. Rather, the commission concludes that the employer did not place the applicant in a circuit board soldering job because it did not want to, or because it did not understand that--having fired him from his pre-injury job in the wire harness area--it had the continuing duty to rehire him in suitable work within his physical and mental limitations.
Finally, for very similar reasons, the commission is satisfied that, the applicant made adequate efforts to express an interest in other employment during his telephone conversation with Mr. Hamedi after receiving the November 13 discharge letter and later by submitting his November 23, 2006 work restrictions to the employer. Thus, to the extent required,(2) the applicant made a sufficient attempt to make the employer aware he was willing to return to work in a job other than the one he held at the time of his injury.
At the hearing in September 2007, the applicant testified that he had been looking for work, without success, since his discharge in November 2005. Accordingly, under Wis. Stat. § 102.25(3) the employer is liable for the full amount of one year's wages, or 52 weeks at the $490 per week, or $25,480.
While the applicant appeared pro se on appeal to the commission, its decision is based on the record developed by the applicant's attorney at the hearing. At haring, the applicant agreed to an attorney fee set under Wis. Stat. § 102.26 at twenty percent of the additional amounts awarded, and the commission is satisfied that amount is reasonable. The applicant's attorney is therefore entitled to a fee of $5,096, which the employer shall pay to him within 30 days. The employer shall pay the remainder, $20,384, to the applicant within 30 days.
NOW, THEREFORE, the Labor and Industry Review Commission makes this
The findings and order of the administrative law judge are reversed. Within 30 days the employer and its insurer shall pay all of the following:
1. To the applicant, Corey J. Wood, Twenty thousand three hundred eighty-four dollars and no cents ($20,384.00).
2 To the applicant's attorney, Fred M. Tabak, Five thousand ninety-six dollars and no cents ($5,096.00).
Dated and mailed July 10, 2008
weedco . wrr : 101 : 1
ND 7.25, 7.28, 7.32, 7.33
/s/ James T. Flynn, Chairperson
/s/ Robert Glaser, Commissioner
Ann L. Crump, Commissioner
The commission conferred with the presiding ALJ concerning witness credibility and demeanor. She recalled that Mr. Hamedi's testimony at times was difficult to understand. She also described the applicant as exaggerating his self importance. The ALJ did not, however, believe the applicant exaggerated his soldering skills and certifications. The ALJ added that she believed Mr. Hamedi may not have been aware of the extent of the applicant's soldering skills, though she also believed there were no open soldering jobs.
As explained in the body of this decision, the commission did not disagree with the ALJ's findings regarding the employer's decision to hire another worker to perform the applicant's duties in the wire harness area while he was off work. Rather, the commission concluded the employer unreasonably refused to place him in other suitable work that was available. As explained in the body of this decision, the commission concluded that the employer did not establish that it had no open jobs doing work soldering circuit boards while the applicant remained unemployed following his discharge from the wire harness set up position. Further, the commission's decision is based in part on the employer's delay in reporting the underlying disability claim to its worker's compensation insurer, a delay which Mr. Hamedi acknowledged and, as set out above, did not adequately explain.
cc:
Attorney Stephen L. Fox
Appealed to Circuit Court. Reversed March 9, 2009. Appealed to the Court of Appeals. Affirmed circuit decision (reversing commission decision) February 10, 2010.
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