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

PATRICIA ARNOLDUSSEN, Applicant

JACKS FROZEN PIZZA INC, Employer

WORKER'S COMPENSATION DECISION
Claim No. 1997000927

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 the applicable law, records and evidence in this case, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The applicant, who was born in 1945, had worked for the employer for only a few months before she sustained a conceded work back injury when she fell off a stool in September 1996. Shortly thereafter, while working on light duty under a doctor's release, she was fired for sleeping on the job. She now claims the one-year's wage penalty for an unreasonable refusal to rehire under Wis. Stat. § 102.35(3).

After her work injury, the applicant was restricted to light duty work. The employer accommodated her restrictions with a job sitting in a chair watching dough balls come out of a mixer and go down the production line. In the event of a problem with the dough balls, the applicant was to stop the line. This job was normally a collateral duty of the person operating the mixer. The employer would put workers on light duty in this job, essentially to give them something to do.

On October 7, 1996, team leader Steven Reinke was checking the line as part of his normal duties when he noticed the mixer operator, Chou Hang, snickering and laughing.

Mr. Reinke went to that part of the line to investigate. He noticed the applicant, sitting motionless at her post, but from his vantage point could not tell if she was sleeping or just watching the conveyor. When Mr. Reinke walked around the divider to see what she was doing, the applicant looked up at him. He told her not to fall asleep, and she did not respond.

The applicant testified she did not remember Mr. Reinke talking with her that evening. Mr. Hang did not testify.

Later that day, a coworker, Andrea Rudolph, noticed the applicant appeared to be asleep at the dough line. Ms. Rudolph, en route to the bathroom, passed within 6 to 8 feet of the applicant. She testified that she saw the applicant with her eyes closed, her head down on her chest, and glasses at the end of her nose. According to Ms. Rudolph, when she emerged from the bathroom after ten minutes, (1) the applicant was still in the same position. Concerned that the applicant would fall into the "header," Ms. Rudolph went to her supervisor, Gale Kruse, to inquire if the applicant was supposed to be asleep out by the dough machine.

Ms. Kruse responded negatively, and went to the applicant's post. Ms. Rudolph watched Kruse approach the applicant, and put her hand on the applicant's shoulder to give it a little shake. According to Randolph, it seemed like a long time until the applicant lifted her head and responded. Ms. Rudolph went back to work.

Ms. Kruse testified that when she checked on the applicant, she observed the applicant to have her head down, and eyes closed. She testified she looked in the applicant's face specifically. Ms. Kruse's written report of the incident in exhibit 3 does not mention looking in the applicant's face.

At any rate, Ms. Kruse testified that she watched the applicant for about a minute, then put her hand on the applicant's shoulder and shook it a little bit. Ms. Kruse's testimony suggests that the applicant responded immediately and looked up at Kruse. Ms. Kruse told the applicant she should not be sleeping, and the applicant apologized. Transcript, pages 43- 44. During her testimony, after refreshing her recollection with her report, Ms. Kruse recalled the applicant told her it was hard to stay awake.

The applicant testified that she in fact had not fallen asleep. She explained that she had removed her glasses, rubbed her eyes, closed them briefly to relieve a burning sensation, put her glasses back on, and resumed watching the dough. She testified that when Ms. Kruse approached her and accused her of sleeping, she was irritated and responded sharply. The applicant testified that she apologized for the tone of her response, but not for sleeping.

In any case, Ms. Kruse then went back to the office and asked what to do. She contacted Holly Harris (a personnel specialist), instead of a person named Jack, "because it had to do with a work-related injury." Transcript, page 45. Ms. Harris told Ms. Kruse to send the applicant home pending investigation. The applicant was discharged the next week.

The employer's written rules designate sleeping as unsatisfactory conduct which will result in disciplinary action up to and including termination of employment. Exhibit 5. Personnel specialist Harris handles discipline for individuals with workers compensation injuries. Another person, Ms. Meyer, handles discipline for other workers. Transcript, page 70-71.

Ms. Harris explained her policy with respect to injured employes who fall asleep on the job. She had on a prior occasion attempted to work with an employe, Kasten, who fell asleep. Ms. Harris's leniency was to no avail. Since the Kasten episode, Ms. Harris has consistently discharged injured workers who fall asleep on the job. According to Ms. Harris, she has discharged three or four other injured workers for falling asleep on the job.

Ms. Harris's testimony indicates that Ms. Harris and Ms. Meyer have some autonomy in discipline meted out to workers under their jurisdiction. Ms. Meyer did not testify at the hearing to establish how uninjured workers were treated for first-time sleeping offenses. While Ms. Harris is fairly confident that Ms. Meyer fires uninjured workers for a single offense of on-the-job sleeping, Ms. Harris admitted she could not speak for Ms. Meyer.

Another worker, Andrew Sturges, testified that he slept on the job at least four times (in addition to other misbehavior) while working on regular duty before he was fired. The employer wanted further hearing to offer the testimony of one Burdick to counter Sturges. Given the record in this case, the commisison concludes that neither Sturges's nor Burdick's testimony is necessary.

Wisconsin Statutes § 102.35 (3), provides as follows:

102.35 (3) Any employer who without reasonable cause refuses to rehire an employe who is injured in the course of employment, where suitable employment is available within the employe's physical and mental limitations, upon order of the department and in addition to other benefits, has exclusive liability to pay to the employe the wages lost during the period of such refusal, not exceeding one year's wages....

The "unreasonable refusal to rehire" statute applies to unreasonable discharges following a work injury, as well as simple failures to rehire. (2)

In an unreasonable refusal to rehire case, a worker has the burden of proving he or she was an employe with a compensable injury who was denied rehire or discharged. The burden then is on the employer to show reasonable cause for the failure to rehire or for the discharge. (3)

An employer must provide evidence showing to a reasonable degree of medical certainty that the worker cannot perform his or her old job or other available work, if it refuses to rehire a worker for that reason. (4) On the other hand, if an employer asserts it fired the worker because she refused work that was within her restrictions, the employer may not rely solely on the restrictions set by an independent medical examiner if they conflict with those set by the injured worker's doctor. (5) The supreme court and court of appeals have held that sec. 102.35 (3), Stats., "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).

The applicant has established that she was an employe who had sustained a workers compensation injury and was subsequently discharged. The applicant has made her prima facie case; the burden thus shifts to the employer to show reasonable cause for the discharge.

On that point, the commision is not persuaded that the applicant was sleeping on the job. As the ALJ pointed out, Mr. Reinke admits he did not see the applicant sleeping. Ms. Rudolph's credibility is in question because, if she truly thought the applicant's sleeping posed a danger, she would have awakened her herself. Further, Ms. Kruse's testimony is inconsistent with her written report as to whether she looked the applicant in the face.

However, even if the record does establish that the applicant fell asleep on the job, the question still remains as to whether the employer had reasonable cause to discharge her. The employer has segregated the disciplinary process between injured and non-injured workers, but provided no first-hand evidence about what happens to non-injured workers in the same circumstances. In other words, the employer has almost institutionalized the disparate treatment of injured workers.

The employer has shown that its standard practice is to discharge injured workers placed on light, makework type duties on the first occasion of sleeping on the job. The employer's practice, however, is made suspect by the fact that it maintains a separate disclipinary process for injured workers, administered by an individual applying what appears to be her own policy for first time sleeping offenses by injured workers. Without some showing about what is done to uninjured workers, the commission cannot conclude the employer discharged the applicant with reasonable cause.

Based on the applicant's discharge under these circumstances, the commission finds that the employer has refused to rehire the applicant without reasonable cause where suitable work was available, within the meaning of Wis. Stat. § 102.35(2). The parties stipulated to lost wages in the amount of $8,795.59 as of the date of the hearing.

The applicant agreed to payment of a twenty percent attorney fee on additional amounts awarded under Wis. Stat. § 102.26. The fee in this case is $1,759.12. The fee shall be subtracted from the total accrued award, leaving an amount payable to the applicant of $7,036.47.

Jurisdiction is resevered for further wage loss by the applicant, up to the maximum of $16,536 (318 per week times 52 weeks.) The employer shall pay the lost wages from the date of the hearing forward until the maximum is reached or it discontinues its unreasonable refusal to rehire the applicant.

NOW, THEREFORE, the Labor and Industry Review Commission makes this

INTERLOCUTORY ORDER

The findings and order of the administrative law judge are modified to conform to the foregoing and, as modified, are affirmed.

Within 21 days from the date of this order, the employer shall make the following payments:

1. To the applicant, Patricia Arnuldussen, Seven thousand thirty-six dollars and forty-seven cents ($7,036.47).

2. To the applicant's attorney, Samuel Bomier, One thousand seven hundred fifty-nine dollars and twelve cents ($1,759.12) in fees.

Jurisdiction is reserved for further payments of lost wages under Wis. Stat. § 102.35(3) until either the maximum entitlement of Sixteen thousand five hundred thirty-six dollars ($16,536) has been paid or the employer discontinues its unreasonable refusal to rehire the applicant.

Dated and mailed: March 5, 1999
arnolpa.wrr : 101 : 3 ND § 7.32

/s/ David B. Falstad, Chairman

Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

cc: ATTORNEY SAMUEL J BOMIER
DIGENZO & BOMIER

ATTORNEY DANIEL J STANGLE
OTJEN VAN ERT STANGLE LIEB & WEIR SC

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Footnotes:

(1)( Back ) Ms. Randolph explained a physiological problem requires her to spend a longer time in the restroom than most people.

(2)( Back ) Dielectric Corp. v. LIRC, 111 Wis. 2d 270, 278 (Ct. App., 1982).

(3)( Back ) This "very correct standard" set out by court in Dielectric was adopted by the supreme court in West Bend v. LIRC, 149 Wis. 2d 110, 121 (1989) which specifically stated that "after an employe shows that she has been injured in the course of employment and subsequently is denied rehire, it becomes the burden of the employer to show reasonable cause for not rehiring the employe." West Bend, at 149 Wis. 2d 123. See also Ray Hutson Chevrolet v. LIRC, 186 Wis. 2d 118, 123 (Ct. App., 1994).

(4)( Back ) West Bend, supra, at 149 Wis. 2d 126.

(5)( Back ) The commission has previously held that, when an employe's doctor and an IME disagree on restrictions and the employer fires the employe for failing to return to work under the IME restrictions, the employer may not avoid liability under sec. 102.35 (3), by pointing to the IME. Comet v. LIRC, court of appeals case no. 84-1163 (May 22, 1985), cited in Neal & Danas, Workers Compensation Handbook, sec. 7.37 (3d ed, 1990).