LUIS SANTOS, Applicant

MOFOCO ENTERPRISES 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 25, 2010
santolu : 175 : 5 ND6 8.31

/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 applicant's conduct in discharging the applicant following his work injury on June 16, 2008, was unreasonable per se, and the discharge was directly related to the injury and was unfair and unjust under the circumstances. The employer asserts the administrative law judge erred in determining the employer refused to rehire the applicant within the meaning of Wis. Stat. § 102.35(3) and assessed the employer with a penalty of $27,040.00. The employer contends the applicant was not injured during nor as a result of the course of his employment with the employer and therefore Wis. Stat. § 102.35(3) does not apply. However, the medical evidence submitted at the hearing substantiates that the applicant was injured while working for the employer on June 16, 2008, when he heard a pop in his right wrist and reported the injury to the employer.

Dr. Moore, who examined the applicant on behalf of the employer, stated in his report of September 17, 2008, the applicant suffered a wrist injury on June 16, 2008, caused by the lifting event at work. The applicant's treating physician, Dr. Chamoy, indicated in his WKC-16-B dated February 1, 2009, the applicant suffered a traumatic injury on June 16, 2008, leading to the need for treatment and a sprained wrist.

The evidence indicates that when the applicant was released to return to work, he was discharged by the employer. The applicant testified that Mr. Henning, the employer's CEO, informed him he never paid a worker's compensation claim and wasn't about to start. The administrative law judge appropriately noted that the employer's own exhibit stated the applicant was termed on June 23, 2008, which any reasonable person would take to mean terminated on June 23, 2008.

Mr. Henning denied the applicant was discharged in June 2008, but rather voluntarily terminated his employment. The administrative law judge, who could observe the demeanor of witnesses, and therefore was in a good position to make a determination as to credibility, did not credit the employer's version. Based upon an independent review of the evidence in the record, the commission has found nothing to warrant overturning the administrative law judge's credibility determination. The employer's own records indicate the applicant was terminated and discharged on June 23, 2008.

The evidence does not indicate the employer had a valid business reason for discharging the applicant. The commission agrees with the administrative law judge that Randy Henning discharged the applicant because of the work-related injury, and because the applicant demanded payment of wages for the week of June 16 through June 20, following the work injury, when he attempted to return to work and was told there was no work available. The evidence did not indicate the applicant voluntarily terminated his employment, but was discharged by Randy Henning on June 23, 2008, over an argument about reporting of the injury and lost wages.

Given the fact the applicant was injured on the job and attempted to return to work but was subsequently discharged due to the work injury, the evidence was sufficient to establish the employer unreasonably refused to rehire the applicant pursuant to Wis. Stat. § 102.35(3). The administrative law judge appropriately noted the employer's conduct was unreasonable per se and the discharge was directly related to the injury, and was unfair and unjust under the circumstances.

cc: Attorney Abed Barakat

Appealed to circuit court.  Affirmed  September 14, 2011.  Appealed to Court of Appeals.  Affirmed September 18, 2012.

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