MAE GREEN-BROWN, Applicant
MIDWEST AIRLINES 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
January 31, 2012
Brownma:150:6 ND6 9.18, 9.24, 9.30
BY THE COMMISSION:
/s/ Robert Glaser, Chairperson
/s/ Ann L. Crump, Commissioner
/s/ Laurie R. McCallum, Commissioner
This case poses three issues: first, does the Midwest Airlines Inc. (Midwest) have good cause for its failure to appear at the hearing; second, what record should the commission review in reaching its decision: and, third, does the record support the award in favor of the applicant under Wis. Stat. § 102.35(3).
Procedural History
The applicant performed services for 14 months as a customer service worker for Midwest. She was classified as part-time, earned $8.76 an hour and her employment ended in May 2001.
The applicant originally filed the WKC-7 hearing application on November 8, 2001, claiming a compensable shoulder/arm/hand injury on July 10, 2000. The application sought medical expenses, TTD, TPD, a PPD to be determined and an unreasonable refusal to rehire (URR). Department records reflects that following the initial application, which included a URR claim, the hearing was postponed and dismissed without prejudice in November of 2003. In October 2009, the applicant requested to reopen the matter and an amended application was dated October 26, 2009. Midwest and its insurer, Sentry Insurance A Mutual Co. (Insurer), through Attorney Zitzer disputed causation, nature and extent of injury and denied an unreasonable refusal to rehire. A dismissal was issued in error and then was set aside on July 8, 2010 for the hearing to be reinstated with the certificate of readiness to be processed; this was sent to Attorney Zitzer, Midwest and the Insurer.
On October 6, 2010, a hearing was conducted regarding the issue of primary compensation and medical expenses.
On October 14, 2010, a hearing notice was mailed to the parties informing them of a December 9, 2010 hearing to be held on the issue currently before the commission, the unreasonable refusal to rehire issue. Applicant's attorney (Schwartz) requested and received a postponement of the hearing.
On November 15, 2010, a limited compromise agreement was negotiated regarding primary compensation and medical expenses, with Midwest and the Insurer agreeing to pay the applicant $3,250 and, after negotiation, any unpaid medical expenses set forth in the WKC-7. This compromise specifically disputed causation and left the URR claim open.
With the URR hearing still pending, on November 19, 2010, Attorney Zitzer, who represented Midwest and the Insurer in the primary compensation matter, sent a letter to the Department, Attorney Schwartz, Frontier Airlines and Ms. Leslie Joosten indicating that he had received Schwartz' letter
. . . regarding the potential wrongful refusal to rehire claim. At this point, we have not been retained to represent Midwest Express or any of its successors for purposes of this claim. Therefore, any additional notices or correspondence pertaining to the wrongful refusal to rehire claim should be sent to Midwest Express in the department's customary manner. You may remove our law firm as counsel for the employer with respect to any wrongful refusal to rehire claim.
Attorney Zitzer was removed as Midwest's representative for departmental correspondence.
On December 21, 2010, a hearing notice was sent for the unreasonable refusal to rehire issue. The hearing was scheduled for February 15, 2011 and was sent to the Midwest address of record at 4000 International Lane, Madison, WI 53704-3134.
Midwest's hearing notice was not returned as undeliverable. Only the applicant and her attorney appeared for the February 15, 2011, hearing regarding unreasonable refusal to rehire.
The ALJ's decision was issued on February 22, 2011. It noted that the Insurer conceded jurisdictional facts, and that the applicant had an injury on July 10, 2000 arising out of her employment for Midwest. The ALJ then found that:
1. Midwest acted unreasonably in terminating applicant's employment while she was in a healing period for a work injury, and
2. Midwest was in default; it did not appear or respond to the hearing notice in any manner and the notice was not returned as undeliverable.
Midwest petitioned for commission review, arguing that:
1. Midwest's failure to appear was due to excusable neglect and/or the hearing notice was not sufficient for due process.
2. Based upon the department's error in sending the materials from the primary compensation and medical expense case, when it requested a complete copy of the URR file, Midwest contends that it is "within its rights" under LIRC administrative rule 1.04 to make assertions based upon that record and because the FMLA request was not in the record sent, the ALJ could not rely on that exhibit in reaching her decision.
3. The record does not support the ALJ's unreasonable refusal to rehire decision.
Excusable Neglect for Failure to Appear and Sufficiency of Hearing Notice
Wis. Stat. § 102.18(1)(a) provides,
All parties shall be afforded opportunity for a full, fair, public hearing after reasonable notice, but disposition of application may be made by a compromise, stipulation, agreement, or default without hearing.
While providing that parties should be afforded the opportunity for a full and fair hearing after reasonable notice, Wis. Stat. § 102.18 (1)(a), provides that disposition of an application may be made by default. The court of appeals has affirmed the practice of the commission and the department to issue decisions on a hearing at which only the applicant appears on the theory that the non-appearing respondent is in default. County of Juneau v. LIRC and Skalak, Case No. 84-1746 (Wis. Ct. App. Oct. 24, 1985).(1)
As part of its argument supporting an excusable neglect finding, Midwest argued that the hearing notice was not sufficient given the publicity about Midwest Airlines Inc.; arguing that "sending the notice to the last known address was not reasonably calculated to inform Midwest of the pending proceeding."
Wis. Stat. § 102.17(1)(a)2 (with emphasis) provides that
Subject to subd. 3., the department shall cause notice of hearing on the application to be given to each interested party, by service of that notice on the interested party personally or by mailing a copy of that notice to the interested party's last-known address at least 10 days before the hearing. If a party in interest is located without this state, and has no post-office address within this state, the copy of the application and copies of all notices shall be filed with the department of financial institutions and shall also be sent by registered or certified mail to the last-known post-office address of the party. Such filing and mailing shall constitute sufficient service, with the same effect as if served upon a party located within this state.
Midwest agrees that it "neglected" to notify the department of an address or ownership change. The notice was mailed to Midwest's last-known address and, the "sufficiency" of the notice from the standpoint of the department was met.
Tied into Midwest's insufficiency argument, it also argues that its failure to appear was due to "excusable neglect," obviating the default finding and decision and requiring a new hearing.
No specific statutory or rule provisions govern a failure to appear in workers compensation cases. Gram Stolpa v. Seljan Tool Company, WC Claim No. 97011508 (LIRC Feb. 28, 1998). However, a nonappearing party may be entitled to relief in the form of further hearing if his or her failure to appear was a result of excusable neglect. Auclair v. LIRC and Friendly Village, Inc, WC Case No. 83-836 (Wis. Ct. App., May 22, 1984). Excusable neglect is that neglect that might have been the act of a reasonably prudent person under similar circumstances. Auclair, slip opinion at 3, and Hedtcke v. Sentry Insurance Company, 109 Wis. 2d 461, 468 (1982). Excusable neglect is not the same as neglect, carelessness or inattentiveness. Hedtcke v. Sentry Insurance Company, 109 Wis. 2d 461, 468 (1982).
In deciding whether to remand, the commission assumes that statements offered by the non-appearing party to explain the nonappearance are true,(2) and if the statements establish that the failure to appear was from excusable neglect, the commission may either remand for a hearing to attest whether the facts actually are as alleged or simply remand for testimony on the merits. See Angela M. Brinkley v. Stat Temporary Services, WC Claim No. 2000-028860 (LIRC Dec. 18, 2001) (applicant's failure to appear) and Gestrich v. Dr. Detail, WC Claim No. 1999-034612 (LIRC Jan. 24, 2000) (respondent's failure to appear.) If the statements taken as true, do not meet the excusable neglect standard, remand is unnecessary: the commission simply denies further hearing. See Neese v. Bergstrom Chev-Pont-Cad, WC Claim No. 1999-008925 (LIRC March 9, 2005) (Employer mistakenly believed that its insurer would be defending the unreasonable refusal to rehire claim, despite warning from the carrier that it had no responsibility on such claim and the department sent a letter warning the employer, similarly explaining that the carrier had no responsibility), affm'd Bergstrom Chevrolet, Pontiac, Cadillac v. LIRC, Case No. 05-CV-490 (Wis. Cir. Ct. Outagamie Co., Dec. 19, 2005).
In Ejnik v. Anchor Food Products, WC Claim No. 1999-000384 (LIRC March 28, 2003), the commission found no excusable neglect where the employer's ownership changed but the address of record did not, there was no evidence of difficulty receiving the mail, the employer negligently failed to note that by terms of the compromise the URR claim was moving forward and the employer ignored the hearing notice, which was later found in the employer's records.
In Podgorski v. ABB Paint Finishing, WC Claim No. 95035783 (LIRC Aug. 29, 1996) aff'd sub nom. ABB Paint Finishing v. LIRC, Case No. 97-1922 (Wis. Ct. App., January 6, 1998), the employer was under contract at a plant and it operated out of a trailer located on the plant's property with its primary address in Michigan. It argued that by the time of the URR hearing notice, the trailer had been abandoned. In finding that the employer failed to establish excusable neglect, the commission was troubled by the employer's claims of not receiving correspondence when the correspondence should have been forwarded by the post office and the possible failure of the employer's agent/insurer in not forwarding correspondence to the Michigan address. Ultimately, the commission found that the failure in proper mail processing was due to the employer's procedures; the record did not reflect any knowledge on the department's behalf that the employer removed the trailer. The decision also referenced the department's requirements under Wis. Stat. § 102.17(1)(a).
Application of Standard to facts of this matter
Midwest argues that it was involved in ownership changes or "no longer existed as an operating airline" and that
When materials relevant to this case were sent to the office bearing the last know address of Midwest Airlines in 2009 and 2010, the personnel stationed at that office essentially ignored them in reliance on the understanding that they were not the intended recipient. See Midwest's Initial Brief page 11.
Midwest's Reply Brief on page 5 adds:
Even if the recipients in this case had once been employees of Midwest Airlines in the past, it should be excusable that they did not pass along mail that was addressed to their former employer.
Midwest also tries to argue a type of "surprise" with its argument that the unreasonable refusal to rehire (URR) claim was "stale."
Midwest's failure was not due to "excusable neglect." Both Midwest's arguments about improper receipt and "staleness" are undermined by the fact that the other hearing on the primary compensation and expense was moving forward at approximately the same time, the end of 2010. Initially, Midwest's attorney was representing Midwest and the Insurer for both issues and negotiated and signed the compromise on the primary compensation and expenses. He knew of the URR claim and pending hearing because the compromise references it. Also, on November 19, 2010, he notified the department and Frontier that he was not representing on the URR claim. He then directed the department to notify Midwest in the "customary manner." Midwest's failure to update its address of record, if the one listed was not accurate does not meet the reasonably prudent person under similar circumstances standard. Even if the department knew Midwest was not operating as Midwest, it could not "guess" as to the proper new address, nor should it be required to.
Argument about the Record
The commission rejects Midwest's argument(3) that all the file documents related to the original compromise be considered by the commission in its review. While the commission may look at the administrative file for reviewing procedural matters, in reaching a decision on the merits it uses the evidence presented at the hearing.(4) Wis. Admin. Code § DWD 1.04 which discusses the "record of the case," referring to the URR case, not the primary compensation and expenses one which resulted in compromise.
Refusal to Rehire Issue
Much of Midwest's argument that the record was not sufficient for the decision was based upon the fact that medical records were not marked as exhibits at the hearing. The ALJ stated at the start of the hearing that compensation was conceded in the compromise when it was not. Yet, while no medical documents or forms were marked or received into evidence, the ALJ did take testimony from the applicant.
Wis. Stat. § 102.35 (3) provides (with emphasis added),
(3) Any employer who without reasonable cause refuses to rehire an employee
who is injured in the course of employment, where suitable employment is available within the employee's physical and mental limitations, upon order of the department and in addition to other benefits, has exclusive liability to pay to the employee the wages lost during the period of such refusal, not exceeding one year's wages. In determining the availability of suitable employment the continuance in business of the employer shall be considered and any written rules promulgated by the employer with respect to seniority or the provisions of any collective bargaining agreement with respect to seniority shall govern.
The "unreasonable refusal to rehire" statute applies to unreasonable discharges following a work injury, as well as simple failures to rehire. Dielectric Corp. v. LIRC, 111 Wis. 2d 270, 278 (Ct. App., 1982). The Supreme Court and the Court of Appeals have held that Wis. Stat. § 102.35(3), "must be liberally construed to effectuate its beneficent purpose of preventing discrimination against employes who have sustained compensable work-related injuries." Great Northern Corp. v. LIRC, 189 Wis. 2d 313, 317 (Ct. App., 1994), citing West Allis School Dist. v. DILHR, 116 Wis. 2d 410, 422 (1984)
In an unreasonable refusal to rehire case, a worker has the burden of proving he or she was an employee with a compensable injury who was denied rehire or was discharged. The burden then is on the employer to show reasonable cause for the failure to rehire or for the discharge. Dielectric Corp. v. LIRC, 111 Wis. 2d 270, 278 (Ct. App., 1982).
The applicant has met the prima facie case for URR through her testimony. While Midwest argues that Wis. Stat. § 102.17(1)(d) requires a medical opinion, the commission disagrees. Wis. Stat. § 102.17(1)(d) refers to expert opinion as to the cause and extent of a disability; it does not say that expert testimony is necessary to establish an injury.
Wis. Stat. § 102.01(2)(c) defines injury as,
. . . mental or physical harm to an employee caused by accident or disease, and also means damage to or destruction of artificial members, dental appliances, teeth, hearing aids and eyeglasses, but, in the case of hearing aids or eyeglasses, only if such damage or destruction resulted from accident which also caused personal injury entitling the employee to compensation therefor either for disability or treatment.
Wis. Stat. § 102.35(3) does not require disability or proof of disability as a further qualification of the injury. Thus, the applicant, with her lay testimony, met the standard; her injury was a direct consequence of the bag loading and there was no contradictory evidence in the record.
cc:
Attorney Paul Schwartz
Attorney Carrie Poniewaz
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