GERALDO OLIVA, Applicant

SCHMIDT ENGINEERING CO Employer

CGU MIDWEST, Insurer

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 June 30, 2003
oliva . wsd : 101 : 8 ND6 6.9

David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner

The applicant was born in 1967. He is an illegal alien. The employer and its insurer (collectively, the respondent) concede that the applicant hurt his right knee at work on July 17, 2000.

The applicant underwent surgery on his right knee, specifically a partial lateral menisectomy and an anterior cruciate ligament repair, in August 2000. He remained off work completely until November 2000, when he returned, part-time at first, subject to temporary restrictions. By December 18, 2000, he was working full-time, but still subject to a temporary lifting restriction.

The applicant reached an end of healing on August 7, 2001. Before that date, however, on February 23, 2001, the employer learned the applicant was an illegal alien and discharged him. Between February 23, 2001 and his August 7, 2001 end of healing, the applicant worked occasionally as a painter.

The respondent has already paid temporary total disability and temporary partial disability from July 17, 2000 to December 18, 2000. It has also conceded and paid permanent partial disability at 15 percent compared to loss at the knee. At issue is the applicant's claim for temporary disability from the point of his discharge on February 23, 2001 to his end of healing on August 7, 2001.

The ALJ found the applicant was entitled to temporary total disability for the period claimed. The respondent appeals.

The commission has previously faced the situation of an illegal alien whose illegal status was discovered while he was off work on temporary total disability following a work injury. He was then discharged, before he ever returned to work, under temporary restrictions or otherwise. Arista Rea v. Kenosha Beef, WC Claim No. 1990070904 (LIRC, May 5, 1999). The commission awarded temporary disability after the discharge, stating:

"The applicant claims temporary total disability from November 27, 1995 to December 5, 1995, and continuing from April 9, 1996 through the date of hearing (February 3, 1998). The employer resists payment of any temporary disability benefits based on the fact that it had work available for the applicant, but he could not perform it because of his illegal alien status. In Brakebush Brothers, Inc. v. LIRC, 110 Wis. 2d 623, 549 N.W.2d 287 (Court of Appeals 1996), the court upheld the commission's finding that the Worker's Compensation Act contains no provision for terminating compensation when an employe is terminated, so long as the employe is still disabled. Id. at 634. The court also upheld the commission's finding that even a termination for good cause does not act to deprive a disabled former employe from receiving worker's compensation for disability which is the result of a work injury. Id. Neither is there a provision in the Act which provides for the withholding of temporary disability benefits to a disabled employe whose ability to work is compromised by an illegal alien status; nor, from an employer's perspective, is there any practical difference between an individual who has been terminated for good cause and one who has been terminated due to an illegal alien status. Neither of such individuals will be rehired by the employer.

"The employer might argue that an illegal alien occupies a different position, because he is legally precluded from obtaining employment in this country until he rectifies his immigration status. However, this is an equitable argument which would be properly presented to the Wisconsin Legislature, because there is no provision in the Act which would allow the withholding of temporary disability benefits due to illegal alien status. In this context it is significant to note, again from a practical standpoint, that illegal aliens routinely find new employment in this country after losing a job. In fact, the applicant found employment as a restaurant cook on or about December 21, 1995, and continued in that employment until sometime in March of 1996. The employer's argument that temporary disability should be denied due to the applicant's illegal alien status must be rejected. [Footnote omitted.]"

On appeal in this case, the respondent acknowledges the Arista Rea decision, but distinguishes it on the basis that the applicant in this case had returned to work, albeit on light duty, during his healing period. However, the supreme court has addressed this point in Brakebush v. LIRC, 210 Wis. 2d 623 (1997). After noting that the Wisconsin Worker's Compensation Act "is essentially a no-fault law which seeks to make employees, good or bad, whole again after a work-related injury," id., 210 Wis. 2d at 633-34, the court went on to state:

"...an injured employee who has been terminated is nonetheless entitled to disability benefits because the employee continues to be limited by the work-related injury. It is the injury, not the termination, that is the cause of the employee's economic loss."

Id., at 210 Wis. 2d 635. The Brakebush court went on to note:

"A Florida court held that '[t]he award of wage-loss benefits is not precluded simply because the wage loss, occurring after a period of successful post-injury employment, is attributable in some part to a non-injury-related factor such as economic conditions, seasonal layoff or discharge for a just cause such as excessive absenteeism.' Johnston v. Super Food Services, 461 So. 2d 169, 170 (Fla. Dist. Ct. App. 1984).

"The purpose of worker's compensation disability benefits is to compensate employees who have lost the ability to work, temporarily or permanently, due to a work-related injury, regardless of whether they are good or bad employees. It contravenes public policy to allow an employer to avoid paying disability benefits to a disabled employee without evidence that the employee's activities are inconsistent with his or her injury. Without such a requirement, the law would leave employees suffering from legitimate work-related injuries in grave danger of being left both unemployed and unable to work due to their work-related disability, without compensation and potentially with a lower earning capacity."

Brakebush, at 201 Wis. 2d 636.

Brakebush, which the commission relied on in Arista Rea, covers the situation in this case as well. Regardless of why the applicant was fired in February 2001, he remained in a healing period and his ability to work was limited by the work injury. Further, the supreme court's citation in Brakebush to the decision of the Florida court in Johnston indicates that the rule that a worker is entitled to temporary disability while in his healing period applies even if a worker returns to light duty during his healing period, and then is discharged for reasons not related to the work injury.

The respondent also points out that under Wis. Stat. § 102.43(1), indemnity for total disability compensation begins on the fourth day after the applicant leaves work as a result of the injury. Because the applicant did not actually "leave work because of the injury" in February 2001, the respondent asserts, he is not entitled to temporary total disability thereafter.

Wisconsin Stat. § 102.43(1) does provide that temporary disability become payable, initially at least, four days after a worker has left work "because of the work injury." However, this worker did, in fact, initially leave work because of the work injury. He was returned with restrictions, as allowed under Wis. Admin. Code DWD 80.47, but that alone does not end his temporary disability rights. Rather, if a worker returns to work with restrictions and is later terminated from employment before healing has ended, his or her right to temporary total disability may resume, so long as the termination is not for a reason that amounts to an unreasonable refusal of work. See Donald A. Falk v. Cummins Great Lakes Inc., WC Claim No. 1995034834 (LIRC, July 6, 2001.)

cc: Attorney Israel Ramon
Attorney Joseph Berger

[ Search Decisions ] - [ WC Legal Resources ] - [ LIRC Home Page ]

uploaded 2010/11/09