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

WILLIAM VOLLMER, Applicant

HENRICH INDUSTRIES INC, Employer

WORKER'S COMPENSATION DECISION
Claim No. 1997001593

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 makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The applicant, who was born in 1955, began working for the employer in early 1996. The employer makes wooden pallets. The applicant testified he was injured on Monday, December 9, 1996 when he twisted while trying to keep a stack of pallets from falling. He reported a work injury to the shop supervisor, and obtained treatment that day. His doctor took him off work that day. Exhibit B.

However, a coworker, Jon Jahn, testified that the applicant and he had been "BS- ing" with a group of coworkers, before work, about how sore they were on December 9. According to Mr. Jahn, the applicant reported he was sore from working on his car the prior weekend. Mr. Jahn jocularly suggested to the applicant he pretend to be injured from a work accident, and claim worker's compensation.

Mr. Jahn reported the conversation to the foreman, Mike Micholovitz, upon learning the applicant claimed an injury. Mr. Jahn was interviewed over the phone about the jocular conversation the next day. Respondent's exhibit 2.

Meanwhile, the applicant was off work because of his back. He returned to work in mid-December, but reinjured his back lifting and twisting with a pallet on December 23. He notified the employer of the reinjury, and saw his doctor, who took him off work through December 27.

According to the applicant, he reported for work on time the following Monday, December 30, about 6:30 a.m. Before beginning work, he was called to the foreman's office, and foreman Michalovitz discharged him for being no-call, no- show on the prior Friday, December 27. Transcript, pages 14-15 and 34-35. The applicant told Mr. Michalovitz that his doctor had excused his absence on the prior Friday. Mr. Michalovitz told him he did not know anything about that, but that he was told he had to fire the applicant. The discharge was documented by Exhibit D, signed by Mike Michalovitz. Exhibit D indicates that the applicant was terminated for being no-call, no-show, and is dated December 27, 1996.

The employer's vice president and chief executive officer, Howard Henrich, testified at the hearing. He testified that the applicant was on the last step of a progressive disciplinary policy due to his poor attendance record before the work injury. He stated that the applicant was discharged, not for an absence on December 27, but for failing to call in and failing to show up for work at his regularly-scheduled time on December 30, 1996. Transcript, page 60.

According to Mr. Henrich, he was told by plant supervisor Michalovitz that the applicant was late on December 30, arriving at 9:00 a.m. instead of 7:00 a.m. as scheduled. Mr. Henrich told Mr. Michalovitz to fire the applicant for that reason. On cross-examination, however, Mr. Henrich admitted that at an unemployment insurance hearing before ALJ James Moe, he had testified that the applicant was discharged for being no-call, no-show on December 27. Mr. Henrich explained that he gave ALJ Moe the wrong dates at the unemployment insurance hearing. Transcript, page 73. (1)

Mr. Henrich also acknowledged that Exhibit D, which was signed by supervisor Michalovitz lists a "no-call, no-show termination" with the date December 27, 1996. Mr. Henrich testified that that term "no-call no-show" accurately reflects what happened on December 30, which was a late arrival without notice. Transcript, page 73-74. Mr. Henrich also explained that date "December 27, 1996" on the refers to the last day of gainful employment prior to the December 30, 1996 discharge. Transcript, page 76.

Mr. Michalovitz did not testify. Coworker Jahn did testify that he noted the applicant was not present at the normal starting time, but did come in about 9:00 a.m. on December 30.

On re-examination (after Mr. Jahn's testimony), the applicant reiterated his earlier testimony that he reported before the 7:00 a.m. starting time on December 30, that Mr. Michalovitz summoned him to the office as he walked in, and that Mr. Michalovitz then fired him. He also explained that Mr. Michalovitz told him to come back at a 9:00 a.m. break time to pick up his personal property. The applicant's testimony suggests he was given until 9:00 so he would not encounter his coworkers.

The parties eventually entered into a limited compromise on the disability claim. The compromise, however, left open the issue of an unreasonable refusal to rehire. The employer's answers to the hearing applications, both for the disability claim and the refusal to rehire claim, clearly denied the occurrence of the injury

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) 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). Accordingly, an injured worker who, because of a work injury, exceeds the maximum number of absences permitted a "no-fault" attendance policy is still protected by Wis. Stat. § 102.35(3). (5)

In this case, it is not disputed that the applicant was the employer's employe, and that he was discharged. Thus, in order to establish a prima facie case of an unreasonable refusal to rehire, the applicant need only show that he suffered a compensable injury. (6)

The commission concludes that the applicant did suffer an injury arising out of his employment with the employer while performing services growing out of that employment. The commission conferred with the presiding ALJ concerning witness credibility and demeanor. (7) The ALJ did not find Mr. Jahn's testimony credible, and noted that even if the applicant had complained of soreness from the prior weekend, that did not mean he could not have injured himself at work. Further, the ALJ stated that the applicant seemed credible, and that his demeanor was not of someone who would commit insurance fraud on a co-worker's suggestion.

The commission also notes Dr. Griswold's note describes a work injury in a manner consistent with the applicant's testimony. The file contains no inconsistent medical reports. Further, one may reasonably conclude from the applicant's description of the work injury that a person could suffer a thoracic or lumbar strain or possible disc injury in that manner.

The burden thus shifts to the employer to show reasonable cause for the discharge. Mr. Henrich testified the applicant was discharged for failing to report on time for work on December 30, 1996. The applicant, of course, testified that he reported for work on time on December 30, but was discharged for missing work on December 27, 1996, a day on which the employer concedes the applicant was excused from work.

After reviewing the record, the commission finds the applicant's testimony more credible. The commission notes first that the employer relies essentially on the Mr. Henrich's hearsay recital as to what Mr. Michalovitz told him about when the applicant's late arrival for work on December 30. In addition, Mr. Henrich's testimony about why the "no-call, no-show termination" document (exhibit D) was dated December 27, 1996, but yet was prepared to document an instance of tardiness on December 30, 1996, termination lacks credibility. Given the testimony of the applicant, and the lack of direct testimony from Mr. Michalovitz, the commission concludes the applicant was not late for work on December 30, 1996, and that he was discharged for missing work on December 27, 1996. Because that day was an excused absence resulting from the work injury, the employer has not shown it had reasonable cause to discharge the applicant.

The applicant established he sustained a full year's wage loss as a result of the discharge. At the conceded average weekly wage of $310, this yields an award under Wis. Stat. § 102.235(3) of $16,120.

The applicant approved an attorney fee of 20 percent. Accordingly, the applicant's attorney shall be paid $3,224 within 30 days. The fee shall be deducted from the total award and the remainder, $12,896, paid to the applicant within thirty days.

Because the commission orders the maximum payment under Wis. Stat. § 102.35(3), the commission's order shall be final.

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

ORDER

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

Within 30 days, the employer shall pay all of the following:

1. To the applicant, William Vollmer, Twelve thousand eight hundred ninety-six dollars ($12,896) for lost wages under Wis. Stat. § 102.35(3).

2. To the applicant's attorney, William J. Reddin, Three thousand two hundred twenty-four dollars ($3,224) as an attorney fee.

Dated and mailed May 20, 1999
vollmer.wrr : 101 : 3  ND § 7.25  § 7.30  § 7.32

/s/ David B. Falstad, Chairman

Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

cc: ATTORNEY WILLIAM J REDDIN
REDDIN & SINGER

ATTORNEY GARY S STANISLOWSKI
ZILSKE LAW FIRM SC

Appealed to Circuit Court. Affirmed January 26, 2000.

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Footnotes:

(1)( Back ) Although the commission notes the testimony of the parties at the worker's compensation hearing concerning the unemployment insurance proceeding before ALJ Moe, the commission does not base its findings on any finding or determination made in ALJ Moe's decision. Wis. Stat. § 108.101.

(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 ) Great Northern, supra at 189 Wis. 2d 317-19.

(6)( Back ) In his decision, the ALJ did not specifically find whether a work injury had occurred, but concluded the applicant was discharged at a time while he still had the protection of the worker's compensation act against an unfair firing. Essentially, the ALJ is applying a rule similar to that under Wis. Stat. § 111.32(3) which prohibits an employer from discharging a worker for filing a discrimination complaint, regardless of how the merits are ultimately decided. However, given the allocation of the burden of proof under the cases cited above, the commission believes a worker must establish compensable work injury to prevail under Wis. Stat. § 102.35(3), even if the disability claim is compromised (unless of course the employer concedes the injury.)

(7)( Back ) Transamerica Ins. Co. v. ILHR Department, 54 Wis. 2d 272, 283-84 (1972).