KAREN J FEDDE, Applicant

HEARTVIEW INC, Employer

An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission agrees with the decision of the ALJ, and it adopts the findings and order in that decision as its own.

The findings and order of the administrative law judge are affirmed.

Dated and mailed October 27, 2008
feddeka . wsd : 175 : 6  ND 7.32

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

The employer asserts in its petition for commission review the administrative law judge erred in determining the employer failed to establish any reasonable cause for its refusal to rehire the applicant following her work injury, surgery and subsequent release to return to work, and awarding the applicant $16,744 as a penalty. The employer contends the applicant failed to establish that the employer failed to refuse to rehire her following her work injury because of her injuries. However, Wisconsin Stat. § 102.35(3) provides that any employer who without reasonable cause refuses to rehire an employee who was injured in the course of employment, where suitable employment is available within the employee's physical and mental limitation, upon order of the department and in addition to other benefits, has exclusive liability to pay the employee the wages lost during the period of such refusal not exceeding one years wages. In West Allis School District v. DILHR, 116 Wis. 2d 410, (1984) the Wisconsin Supreme Court stated an employer if there is suitable employment available can only refuse to rehire for a cause or reason that is fair, just or fit under the circumstances. Section 102.35(3) applies equally to unreasonable discharges to injured employees as in this case.

In the West Allis case the Wisconsin Supreme Court made no mention of requiring a causal link between the cessation of employment and the work injury; and to the contrary, the facts of the case made clear that no such link was required. In the West Allis School District case the Wisconsin Supreme Court found that the employer had violated Wis. Stat. § 102.35(3) because the employer's asserted reason for ending the employment did not constitute "reasonable cause". Similarly in West Bend Company v. LIRC, 149 Wis. 2d 110 (1989) the Wisconsin Supreme Court did not require a causal link between the reason for the termination of the injured employee and the applicant's work injury, to establish a claim for violation of Wis. Stat. § 102.35(3).

In the current case the employer failed to establish reasonable cause for discharging the applicant. The employer contended at the hearing the applicant had voluntarily terminated her employment. The employer presented evidence of a note from the applicant which stated in part "cleaned up some of Dales living room. Had to quit due to back ache." Signed by the applicant, this note was undated. The administrative law judge appropriately noted the work quit in the note referred to the specific activity of cleaning Dale's living room, and not to her employment status.

The applicant testified she did not intend to quit her employment with the employer. The applicant testified she kept the employer advised of her health status and condition subsequent to March 31, 2003. The evidence indicates the applicant telephoned the employer several times in October 2003 after she was released to return to work, and the employer had work available for the applicant within her restrictions. However the employer failed to rehire the applicant. The evidence does not indicate the applicant voluntarily terminated her employment. The administrative law judge who could observe the demeanor of the witnesses and therefore was in a good position to make a determination as to credibility, credited the applicant's testimony that she kept the employer apprised of her health condition and when she was released to return to work by her treating physician in October 2003 she notified the employer on a timely basis. The employer presented no reasonable business reason for failing to rehire the applicant. Ms. Lopez, the employer's executive director, admitted in her testimony she received Dr. Bartie's October 7, 2003 report which released the applicant to return to work with permanent restrictions, and that the employer had work available within her restrictions.

The applicant established that she was an employee at the time of her work related back injury and need for treatment subsequent to March 31, 2003. The evidence indicates the applicant notified the employer of her treatment and her subsequent release to return to work in October 2003. The evidence did not indicate the applicant voluntarily terminated her employment but rather the employer continued to pay its portion of the applicant's health insurance premiums for several months after it allegedly believed the applicant had voluntarily terminated her employment, and maintained other actions and statements in conflict with the employer's assertion that the applicant quit on March 31, 2003.

The evidence indicates the employer discharged the employee prior to her release to return to work in October 2003. The applicant notified the employer of her ability to return to work with restrictions and the employer had work available for her within her restrictions. The evidence does not indicate the employer had a valid business reason for discharging the applicant and the employer has failed to establish reasonable cause for the discharge and failure to rehire. Therefore the evidence indicates the employer unreasonably refused to rehire the applicant pursuant to Wis. Stat. § 102.35(3) and the administrative law judge appropriately awarded the applicant benefits pursuant to Wis. Stat. § 102.35(3).

cc: Attorney Peter Waltz
Attorney Michael Waterman

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