ROBERT HAAS, Applicant

UNITED DISPOSAL SERVICES LLC, Employer

EMPLOYERS MUTUAL CASUALTY CO, 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
December 27, 2011
haasro . wsd : 145 : 6 ND6 8.30, 8.32

BY THE COMMISSION:

/s/ Robert Glaser, Chairperson

/s/ Ann L. Crump, Commissioner

/s/ Laurie R. McCallum, Commissioner

The respondent has petitioned for commission review of the adverse administrative law judge's decision. The respondent asserts that it is unfortunate that small businesses, which often lack the resources of large businesses, are subject to "frivolous lawsuits." The respondent's position is that it lacks the resources to hire a staff attorney and often technical mistakes are made which the respondent believes must be taken into consideration. However, the ALJ and the commission are required to apply the law to the facts in the record. The commission must apply the law as it is written and the law does not give the commission the discretion to apply different standards to small businesses which cannot afford legal representation.

In this case, the record clearly established that the applicant suffered a work injury and that as a result of the injury, he was absent from work. The record likewise demonstrates that the applicant was discharged after returning from his work injury and that part of the reason for his discharge was his absenteeism, which included time the applicant was off for the work injury. The employer has a progressive disciplinary policy and did not give the applicant any written warnings for absenteeism prior to his discharge. The applicant presented evidence at the hearing that most of his absences were the result of lack of work or because he was ill or off work with permission. Thus, the applicant had valid reasons for most of his absences which may explain why he was not warned about attendance prior to his discharge. This supports a conclusion that the applicant was discharged in large part because of his work injury.

The Wisconsin Court of Appeals held in Great Northern Corporation v. LIRC, 189 Wis. 2d 313 (November 1994), that the statute providing for a penalty for unreasonable refusal to rehire must be liberally construed to effectuate its significant purpose of preventing discrimination against employees who have sustained compensable work-related injuries. In the Great Northern case two employees were discharged by the employer following work injuries. The employees in the Great Northern case were discharged according to the employer's attendance policy dictating that an employee receiving nine occurrences within a 12-month period or three attendance warnings within an 18-month period would be subject to termination. The employer argued that it should be allowed to count work-related injuries as absence occurrences when determining a worker's total number of absences for purposes of its attendance policy.

The Court of Appeals held in the Great Northern case that while there was nothing in the law that prohibits an employer from implementing an attendance policy which recognizes the accident prone, Wis. Stat. § 102.35(3) prohibits an employer from acting upon that recognition by terminating those employees who had work- related accidents. The Court of Appeals stated that using work-related injury and treatment as part of the total absence used to justify the discharge, the employer terminated the employees on a basis that the statute is designed to prevent. Similarly in our current case, the employer used the applicant's work-related injury and treatment as part of the total absences used to justify his discharge.

The respondent according to the discharge notice of July 14, discharged the applicant for excessive absences, not wearing safety equipment and other infractions." The applicant provided a credible explanation for not wearing his safety glasses and also testified that his supervisor was or should have been aware that he was not wearing his glasses. In addition, it was not established that the applicant violated any safety rules after that warning. The respondent did establish that the applicant was disciplined for following the instructions of his supervisor who told him to load some scrap metal into the truck of the supervisor's car. However, he did not repeat this conduct after being warned about it.

The respondent further argues that because of medication the applicant was taking he was more susceptible to heat stroke. However, if a work accident causes disability, even though that disability may not have been caused in the absence of a pre-existing or congenital condition, the disability remains compensable. E.F. Brewer Co. v. ILHR Department, 82 Wis. 2d 634, 638 (1978). Thus, Wisconsin applies an "as is" rule under which an employer takes its workers subject to pre-existing conditions and predisposition to injury. Lewellyn v. DILHR, 38 Wis. 2d 43, 58-59 (1968). This principle is restated in Semons Department Store v. ILHR Department, 50 Wis. 2d 518, 528 (1971), where the supreme court wrote:

Furthermore, an employee's predisposition to injury does not relieve the present employer from liability for workmen's compensation. In Green Bay Warehouse Operators, Inc. v. Industrial Comm. (1963), 19 Wis. 2d 11, 119 N. W. 2d 435, this court rejected a contention that a pre-existing tendency to instability of the shoulder joint, with a tendency to dislocate, relieved the employer of the consequence of liability for medical payments. The court quoted the following from M. & M. Realty Co. v. Industrial Comm. [at 267 Wis. 63]:

'. . . . [A]n employer takes an employee 'as is' and the fact that he may be susceptible to injury by reason of a pre-existing physical condition does not relieve the last employer from being held liable for workmen's compensation benefits if the employee becomes injured due to his employment, even though the injury may not have been such as to have caused disability in a normal individual.'

Thus, under Wisconsin law, employers take their employees as they are including a predisposition to injury resulting from a pre-existing condition which would include any medication he took. Furthermore, in the present case, the applicant was doing very physical work outside in the sunlight on a hot day. He was also doing physical work in a building which was not air-conditioned. The applicant's doctor opined that the applicant suffered from heat stroke because of his work. The respondent presented no medical evidence to support its assertion that the applicant got heat stroke from a medication he was taking. Thus, the evidence in the record supports the ALJ's conclusion that the applicant suffered a work injury.

The respondent likewise argues that medical records indicate that because of back problems the applicant was unable to do the job. However, the applicant had been doing the job until he suffered from heat stroke. The applicant in this case did not quit because he was unable to do his work. Rather, the record in this case establishes that the respondent unreasonably terminated the applicant.

cc: Mr. Steven Kmiec
Mr. Brad Horne

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