SUSAN J KEENE, Applicant

MENARD INC, Employer

RELIANCE INSURANCE CO - WISF, 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.

 
March 30, 2011
keenesu.wsd:175:9 ND6 6.24

BY THE COMMISSION:

/s/ Robert Glaser, Chairperson

/s/ Ann L. Crump, Commissioner

The employer asserts in its petition for commission review the administrative law judge erred in determining the applicant was entitled to reopen her claim for an assessment of loss of earning capacity pursuant to Wis. Stat. § 102.44(6)(b), and that the applicant's employment was terminated due to a personality/attitude conflict with Mr. Maki, the employer's general manager. The employer asserts it had reasonable cause for discharging the applicant due to insubordination based on Mr. Maki's testimony, and the evidence the applicant failed to follow company policies and not just the policies of the Wausau store management or Mr. Maki. The employer also asserts the administrative law judge erred by excluding from the record an exhibit which demonstrated that the employer's general office in Eau Claire also took issue with the applicant's failure to work 40 hours per week in September 2004, showing the concern with the applicant's failure to follow company policies was not isolated to Mr. Maki or even the Wausau store.

However, even if the administrative law judge had allowed the exhibit into evidence it would not have established the employer had reasonable cause for discharging the applicant. The email did not establish the applicant was insubordinate. The evidence indicates the applicant was discharged following a meeting with Mr. Maki in March 2005 in which she brought along a list of questions concerning her current status. The applicant testified that she had initially approached Mr. Maki in March 2005 concerning why she was being kept as a cashier rather than returning to the building materials department where she had worked in the past. The applicant testified that she was not argumentative with Mr. Maki at the meeting and was not disrespectful. Mr. Maki testified that during the meeting the applicant got loud and the questioning was very, very difficult, and the applicant was combative or argumentative. The administrative law judge, who could observe the demeanor of the witnesses and therefore was in good position to make a determination as to credibility credited the applicant'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 applicant credibly testified that at the meeting she was given a three-day suspension and subsequently terminated. The applicant testified she was never threatened with termination for prior disciplinary warnings. Under Wis. Stat. § 102.44(6)(b) if during the period set forth in statute § 102.17(4), the employment relationship is terminated by the employer at the time of the injury, or by the employee because his or her physical or mental limitations prevent his or her continuing in such employment, or if during such period a wage loss of 15 percent or more occurs the department may reopen any award and make a redetermination taking into account loss of earning capacity. The evidence does not indicate that the applicant was discharged for insubordination or misconduct or that the employer had reasonable cause to discharge the applicant.

Although the applicant had received a warning for taking more than seven days off for a week's vacation, Mr. Maki admitted that the vacation had been approved by an assistant. The employer contended that the applicant had multiple occurrences where she failed to follow the employer's policy for 40 hours work per week including one instance in August 2004 and the second in November 2004. However the evidence did not indicate that this was a continuing problem. The applicant testified that she believed this problem had been resolved. The administrative law judge appropriately noted that the evidence indicates the applicant's employment was terminated due to a personality/attitude conflict between her and Mr. Maki. The evidence did not indicate the applicant's discharge was plainly justified and the administrative law judge appropriately found that the applicant could make a claim for loss of earning capacity pursuant to Wis. Stat. § 102.44(6)(b).

The administrative law judge appropriately refused to enter into evidence a document presented by the employer at the hearing without proper foundation. And even if the administrative law judge had allowed the exhibit into evidence it would not have established that the applicant was terminated for misconduct or that the termination was reasonably justified. Based on the applicant's testimony and the exhibits presented at the hearing, the evidence was sufficient to establish the applicant was entitled to make a claim for loss of earning capacity pursuant to Wis. Stat. § 102.44(6)(b) and the administrative law judge appropriately awarded the applicant 40 percent loss of earning capacity as a result of her work related injury, and jurisdiction was appropriately reserved.

cc: Attorney Benjamin C. Welch
Attorney Todd J. Koback

Appealed to circuit court.  Affirmed August 24, 2011.  Appealed to Court of Appeals.

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