STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

HOWARD GASPER, Applicant

WISMARQ CORPORATION, Employer

FIRE & CASUALTY INSURANCE COMPANY OF CONNECTICUT, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 94067858

The respondents submitted a petition for commission review alleging error in the administrative law judge's Findings and Interlocutory Order issued in this matter on July 18, 1997. The applicant submitted an answer to the petition and briefs were submitted by the parties. A compensable work injury was conceded as having occurred on November 7, 1994. At issue is whether the applicant is entitled to vocational rehabilitation benefits pursuant to Wis. Stat. �� 102.61 and 102.43 (5).

The commission has carefully reviewed the entire record in this matter, and hereby affirms the Findings and Interlocutory Order of the administrative law judge, except as herewith modified. The commission makes the following:

MODIFIED FINDINGS OF FACT

The administrative law judge's FINDINGS OF FACT are affirmed and reiterated as if set forth herein, with the exception of the paragraph which begins with the third line of page 3 of his decision. That paragraph is deleted and the following paragraph substituted therefor:

"The employer asserted that it discharged the applicant due to `harassment' of female employes, an `inability' to follow instructions, and a bad attitude. Submitted into evidence was a copy of an Initial Determination issued by the Department of Workforce Development on April 29, 1995, which found that the applicant had been discharged for misconduct connected with his employment, within the meaning of Wis. Stat. � 108.04 (5), and was therefore ineligible for certain unemployment compensation benefits. A female co-worker, Mila Rozek, testified that the applicant made fun of her accent, told her that her husband was not treating her right because he had not taken her to a lot of places, inferred that he was smarter than she, called women in the office `bitches' and used other foul language, and on one occasion brushed his body up against hers (Ms. Rozek could not say whether this had been intentional).

"Wis. Stat. � 108.101 (1) provides that no department determination made under Chapter 108 is admissible or binding in any action or administrative proceeding not arising under Chapter 108. Accordingly, the Initial Determination issued April 29, 1995, should not have been admitted into this proceeding under Chapter 102, and can have no bearing on it.

"Regardless, the evidence submitted in this proceeding does not credibly support a conclusion that the applicant was discharged for misconduct or reasonable cause. Even were the evidence to support such a conclusion there is nothing in Chapter 102, or elsewhere in the law, which provides that vocational rehabilitation benefits may be denied because an individual was discharged for cause. Wis. Stat. � 102.61 provides that such benefits shall be provided to an individual who has received workers compensation and is receiving retraining pursuant to the federal retraining statute, as administered by the Department of Vocational Rehabilitation (hereinafter DVR). There is no `reasonable cause' exception to this provision as the commission has interpreted as being found in Wis. Stat. � 102.44 (6)(g). It was not demonstrated that highly material facts were misrepresented or withheld from the DVR, or that the DVR applied an interpretation of the rehabilitation laws entirely outside the reasonable scope of interpretation. Accordingly, the applicant is entitled to vocational rehabilitation benefits for his periods of training. Massachusetts Bonding and Insurance Corporation v. Industrial Comm., 275 Wis. 505, 512, 82 N.W.2d 191 (1957). Benefits are not awarded prospectively, but assuming the applicant continues his training program with reasonable regularity, no impediment to additional vocational rehabilitation benefits is foreseen."

Delete the administrative law judge's INTERLOCUTORY ORDER and substitute therefor the commission's INTERLOCUTORY ORDER set forth below.

NOW, THEREFORE, this

INTERLOCUTORY ORDER

Within 30 days from this date, respondents shall pay to the applicant accrued compensation in the amount of Eight thousand two hundred seventy-six dollars and twelve cents ($8,276.12); and to his attorney, Steven Lownik, fees in the amount of Two thousand sixty-nine dollars and three cents ($2,069.03).

Jurisdiction is reserved for such further findings and orders as may be warranted.

Dated and mailed: February 24, 1998
gaspeho.wrr : 185 : 2 ND 5.39

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The respondents additionally argued that a decision issued by the commission, Hansen v. Gantners Repair, Inc., WC Claim No. 91-052210 (LIRC July 30, 1996), supported its position that a discharge for misconduct or reasonable cause precluded an award for vocational rehabilitation benefits. However, in Hansen the applicant was laid off due to a lack of work rather than being discharged. Accordingly, there is no useful comparison to be drawn between the Hansen case and the case at hand. In Hansen, the findings made by the administrative law judge, whose decision was affirmed by the commission, contain dicta which could be read to say that a discharge for misconduct might impact eligibility for vocational rehabilitation benefits. The commission's Memorandum Opinion in Hansen does not repeat this language or address it, and the case does not provide precedent consistent with the respondents' argument.

Finally, respondents argue that because the applicant did not maintain a grade point average above 2.0 in the 1996 summer and fall semesters, retraining benefits should not be paid for those periods. In support of this argument the employer cites the written goal of the Individual Written Rehabilitation Plan completed by the DVR which called for the applicant to maintain a 2.0 grade point average. This argument also lacks any support in the law. The applicant's grade point average was initially lower than satisfactory because he entered a program which involved math requirements which he found difficult. The applicant and the DVR responded reasonably by switching the applicant's program to marketing, which does not involve the difficult math curriculum. As of the hearing date, the applicant was making good progress in his studies. There was no abuse of discretion by the DVR, or unreasonable behavior by the applicant, which could justify withholding rehabilitation benefits for the periods in question.

cc: ATTORNEY LINDA S QUARTARO
QUARTARO CASTAGNA EVEN & CAFARO

ATTORNEY STEVEN J LOWNIK
SCHOBER & RADTKE SC

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