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

ALFONSO G ARROYO, Applicant

WOODLAND ALLOY CASTING, Employer

WORKER'S COMPENSATION DECISION
Claim No. 1996015425

The applicant submitted a petition for commission review alleging error in the administrative law judge's Findings and Order issued in this matter on April 28, 1998. The employer submitted an answer and briefs were submitted by the parties. At issue is whether the employer unreasonably refused to rehire the applicant, within the meaning of Wis. Stat. 102.35 (3).

The commission has carefully reviewed the entire record in this matter, and after consultation with the administrative law judge regarding the credibility and demeanor of the witnesses, hereby reverses his Findings and Order. The commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The applicant was employed as a working supervisor in the employer's foundry. He sustained a work injury on February 27, 1996, which resulted in an amputation at the distal joint of his left little finger. He missed about two weeks of work before returning to restrictive duty for another two weeks, and then back to regular duties. On Friday, October 11, 1996, his finger was painful and swollen, so he telephoned his doctor while at work to set up an appointment. This was at about 3 p.m. He was told it was too late to be seen that day but was given an appointment for the following Monday morning. That afternoon he told the plant manager, Ray Avila, that he had the doctor's appointment Monday morning.

On Monday morning, October 14, 1996, the applicant told Avila that he was leaving to go to the doctor and Avila told him before he left that he should schedule such appointments after work hours. The applicant went to the appointment where Dr. T. T. Barnhardt diagnosed an abscess of the finger, lanced it, and prescribed antibiotics. The applicant came back to the foundry later that day to give the employer an excuse for remaining off work until the following Wednesday. This is consistent with Dr. Barnhardt's clinic note dated October 14, 1996, in which he indicated that he would see the applicant again on Wednesday for a wound check, and that the applicant would remain off work until that time. The applicant gave the medical excuse to Avila, who was at the foundry with the employer's general manager, Kerry Malak. Malak expressed displeasure with the fact that the applicant had scheduled his doctor's appointment during work hours, and the applicant raised his voice and said that if they did not like it they should lay him off. Malak then told him he had his excuse and he could go home.

The applicant saw Dr. Barnhardt again on Wednesday, October 16, 1996, and Dr. Barnhardt wrote in the clinic note that the applicant could return to work the following day. He gave the applicant a medical release to that effect, which the applicant took to the foundry and showed to Avila, who informed the applicant that he was to be taken off work with pay through Friday, October 18, 1996. Avila also told the applicant to come in and see Malak for a meeting on Friday after work. When the applicant came in on Friday, he met with Malak and Avila. Malak told him he was being laid off permanently because business was slow.

The applicant applied for unemployment compensation and the employer did not contest it. He was again disabled due to the work injury for one week beginning on October 28, 1996, and for three weeks and three days beginning on December 13, 1996. He went to an attorney who wrote letters to the employer in October 1996, January 1997, and March 1997 indicating that the applicant was able to work without restriction and interested in returning to any position the employer had available. The employer's attorney responded to the latter two letters indicating that there was no work available for the applicant and no hiring was anticipated in the future. The applicant filed his application for unreasonable refusal on March 13, 1997. In March 1998, the applicant's attorney subpoenaed the employer for hiring information. Thereafter, the employer changed its position and asserted that the applicant had been discharged for insubordination, in particular his behavior on October 14, 1996.

Avila and Malak indicated that they decided to discharge the applicant for his alleged insubordinate behavior on October 14, 1996. They also indicated that the applicant had become "argumentative" during the last two months of employment, noting specifically that he had disagreed with them about the scheduling of certain jobs. They asserted that they had not told the applicant the truth about why he was being discharged, because they believed that by indicating in his termination notice that he was being laid off due to lack of work, rather then alleged insubordination, they were making it easier for him to find new work.

Wis. Stat. � 102.35 (3) provides that any employer who without reasonable cause refuses to rehire a worker who has sustained a compensable work injury, where suitable employment is available, is liable to that worker for up to one year's wages for wages lost during the period of unreasonable refusal. The employer failed to demonstrate reasonable cause for its discharge of the applicant on October 18, 1996. It was certainly reasonable for the applicant to have left work in order to receive care for his abscessed finger. He should have controlled his temper when his supervisors expressed displeasure with his leaving work for this purpose, and he should not have raised his voice and effectively dared them to fire him. However, given the circumstances, his behavior did not reach the level of providing reasonable cause for a discharge. It is understandable that the applicant became upset with his supervisors, given the fact that he had lost part of his finger, the fact that the wound had become painful and infected, and the fact that his supervisors had made an issue out of reasonable and necessary medical treatment being received in timely fashion.

The credible inference is that even Avila and Malak recognized that the decision to discharge the applicant was questionable, given the fact that they lied to him concerning the reason for the discharge. If Avila's and Malak's sole motive had been to protect the applicant's employment record they could have written a statement indicating the applicant had been laid off due to lack of work, but told him the real reason for his discharge. This would have allowed the applicant to defend himself against the discharge, or at least to know with certainty where he stood with the employer. As it was, the applicant appropriately kept the employer aware of his medical status, and sought unconditional rehire from the employer, only to be lied to on at least two other occasions concerning the availability of work. It was not until the applicant filed a claim for unreasonable refusal, and his attorney subpoenaed the employer's employment records, that the employer asserted there was another motive for the discharge. At the hearing, the employer acknowledged that the applicant was the only one "laid off" from work, that it hired several other individuals subsequent to the applicant's termination, and that its work level picked up and there were 452 hours of overtime in January 1997.

Finally, the employer's assertion that the applicant was "argumentative" during his final two months of employment was much too vague and insubstantial to support a finding of reasonable cause for a discharge. Malak did testify that on some unspecified date, he spoke with the applicant about his attitude, but he did not put anything in the applicant's employment file, and thought at the time that the applicant's behavior would "fall into place" and not present a problem. There may have been a change in the applicant's personality during this period, perhaps related again to complications with his partial finger amputation, but it was not shown that he had become insubordinate or derelict in his work duties.

The commission therefore finds that the employer unreasonably refused to rehire the applicant effective October 18, 1996, the last day for which the applicant received wages from the employer. He was unemployed from that date until entering a renewed period of temporary total disability on October 28, 1996, which lasted until November 4, 1996. He was again unemployed up through another period of temporary total disability lasting from December 13, 1996 to January 8, 1997. On an unspecified date in January 1997, he obtained part-time employment at a pizzeria where he earned $9.50 per hour and received a total of $4851 in wages during 1997. He continued to work part-time at the pizzeria up to the date of hearing on April 8, 1998, but the record does not disclose the exact amount of wages he earned in 1998. He had found no other employment as of the date of hearing. His average weekly wage for the employer was $700, which means he lost approximately 85 percent of his annual wage in the calendar year 1997. He also lost his full wage between October 18, 1996 and October 28, 1996, and again between November 4, 1996 and December 13, 1996, which amounts to approximately ten percent of his annual wage. (1) Finally, he lost additional wages because he was only employed part-time at the pizzeria in 1998. Accordingly, as of the date of hearing, the total of applicant's lost wages had reached the full one-year level of $36,400. The applicant's attorney is entitled to a 20 percent fee against this amount.

NOW, THEREFORE, this

ORDER

The Findings and Order of the administrative law judge are reversed. Within 30 days from this date, the employer shall pay to the applicant the sum of Twenty-nine thousand one hundred twenty dollars ($29,120); and to applicant's attorney, Charles Soule, fees in the amount of Seven thousand two hundred eighty dollars ($7,280).

Dated and mailed: December 16, 1998
arroyal.wrr : 185 : 3 ND � 7.32

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission consulted with the administrative law judge, who found the applicant less credible than Malak and Avila regarding the events surrounding the final week of the applicant's employment. The commission found the applicant's testimony in this regard credible primarily because Malak and Avila conceded that they lied to the applicant concerning his discharge, and it was also proven that the employer lied to the applicant and his attorney on subsequent occasions concerning the nature of the discharge and the availability of work. In addition to the employer's proven lack of trustworthiness in this matter, there were inconsistencies in the testimonies given by Malak and Avila. Avila testified that Malak informed the applicant on October 18, 1996, that he was laid off, while Malak testified that Avila told the applicant of his discharge. Avila testified that he and Malak met and talked with the applicant on October 18, 1996, while Malak testified that he did not talk to the applicant after October 14, 1996, except when the applicant allegedly came in to drop off medical slips after he had been discharged.

It is also important to note that even had the commission accepted Malak's and Avila's versions of what transpired between October 11 and October 18, 1996, it would not have found that the employer had demonstrated reasonable cause for discharging the applicant. As detailed in the above findings, the applicant's behavior, while emotional and lacking in good judgment, was understandable given the circumstances. He had sustained a serious work injury which resulted in an infection requiring prompt medical attention. The employer resisted his legitimate request to see his physician, and it was as a consequence of the work injury that the dispute arose. The employer acted unreasonably in discharging the applicant over this matter, and in lying to him concerning the nature of the discharge.

PAMELA I. ANDERSON, COMMISSIONER (Dissenting):

I am unable to agree with the result reached by the majority herein and I dissent. I agreed with the administrative law judge's credibility assessment. I believe the employer fired the employe for insubordination on the last day of work but withheld that information from the employe. While it is preferable that the employer be honest with the employe on the reason for discharge that does not resolve the case. I would affirm the administrative law judge's decision.

Pamela I. Anderson, Commissioner

cc: ATTORNEY CHARLES M SOULE
SCHOONE FORTUNE LEUCK KELLY & PITTS SC

ATTORNEY KERRY E DWYER
WESSELS & PAUTSCH PC

Appealed to Circuit Court. Reversed November 24, 1999. Appealed to the Court of Appeals;  Circuit Court decision reversed and cause remanded with directions to reinstate LIRC decision, November 15, 2000.

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Footnotes:

(1)( Back ) Lost wages paid under Wis. Stat. � 102.35 (3) are "in addition to" any other benefits, and are not in the nature of back pay pursuant to Wis. Stat. � 108.05 (6). Therefore, unemployment compensation does not offset payments due under Wis. Stat. � 102.35 (3).