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

LAJUONA A ROSS, Applicant

MILWAUKEE JOURNAL SENTINEL INC, Employer

WORKER'S COMPENSATION DECISION
Claim No. 1997034815

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 claims she was unreasonably discharged following a work-related carpal tunnel injury. The disability claim from the work injury was compromised, but each side reserved its rights with respect to the unreasonable refusal to rehire claim.

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, as well as simple failures to rehire. (1)

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. (2)

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. (3) 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. (4) The Supreme Court and 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). 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, there is no dispute that the applicant was an employe of the employer, and that she was discharged. In order to make her prima facie case, then, she must show she has a compensable injury. (6)

The applicant has worked for the employer since August 1995. In August 1996, she became a secretary-typist in the employer's personnel office where her duties included typing six hours per day. In May 1997, she began noticing the onset of wrist pain. Shortly thereafter, the applicant was diagnosed with carpal tunnel syndrome. That diagnosis, itself, is also not in dispute. Rather, the initial dispute in this case is whether the carpal tunnel syndrome arose out of employment.

The applicant presents a report from a treating doctor, Susan Larson, M.D. Dr. Larson's notes indicate she had a good idea of the applicant's job duties as a typist, and the history of her complaints. Dr. Larson opined that the applicant has carpal tunnel syndrome and bilateral epicondylitis, and that these conditions were caused directly by work, and as the result of workplace exposure that was either the sole cause or material contributory factor in the onset or progression of disease. Exhibit A, note dated July 9, 1997.

The employer relies on the report of James White, M.D. He acknowledges the applicant has carpal tunnel syndrome, and may even need surgery. However, he does not think the condition is work-related. Dr. White rejects the idea of carpal tunnel syndrome caused by occupational exposure generally, except for people who operate machines like chain saws, jackhammers, and vibrating sanders for long periods of time. Dr. White attaches the text of his article and speech on this point. He also includes as well the article of Nortin M. Hadler, M.D., in the Journal of Hand Surgery.

As is evident from the opening paragraphs of Dr. Hadler's article, the opinion he and Dr. White hold is currently the minority view in the medical community. The commission, of course, cannot exclude the possibility that the Hadler-White view may be right and the majority view wrong. Nonetheless, in order to find no causation in this case based on Dr. White's report, the commission would essentially be adopting the view that occupational exposure generally cannot cause carpal tunnel syndrome. The commission is unwilling to take that step based on the facts in this case. Instead the commission adopts the report of Dr. Carson which credibly relates the carpal tunnel condition to occupational exposure.

Because the applicant has established a compensable work injury, the burden shifts to the employer to show reasonable cause for discharging the applicant. The commission concludes the employer failed to show reasonable cause for the discharge. In fact, the record establishes that the applicant was discharged because of excused absences to treat her work injury.

The applicant told the employer she had a work injury on June 5, and began treating with family doctor Scott who diagnosed carpal tunnel syndrome. Dr. Scott initially allowed her to work subject to restrictions, but then took her off work until a hand surgeon could see her on June 25. However, when the employer called Dr. Scott about a return to work on June 24, he agreed to allow the applicant to return to work with substantial restrictions. The employer evidently thought Dr. Scott released her to return to work immediately on June 24; in fact, Dr. Scott's release form indicates a June 25 release date. See Exhibit B.

The applicant returned to work on June 25. She was subject to restrictions against repetitive hand motions, though she was permitted to occasionally file, and greet clients. She was assigned to filing work for most of the day.

On June 25, the applicant also saw the hand surgeon, Dr. Yoder, who diagnosed bilateral carpal tunnel syndrome but allowed her to continue to work on light duty. The applicant was scheduled to see a colleague of Dr. Yoder's, Susan Larson, M.D., on July 7.

On June 26, the applicant was given the first verbal warning of her career with the employer. Transcript, page 57. According to a chart attached to the warning, she had been 6 to 30 minutes late on 11 occasions since late May, nearly all of the working days she was not off work for the work injury. The applicant did not punch a time-clock, and disputes being tardy as often as the employer claimed, though she acknowledged that her hand condition interrupted her sleep and caused her to be late on some occasions. Transcript, page 68-69.

The employer's employment manager, Jackie Stark, testified that in May 1997 (which would be just before the applicant claimed the work injury), she began to notice the applicant's tardiness problem and started to keep track of it. Transcript, page 84. When she handed the applicant the verbal tardiness warning on June 26, Ms. Stark evidently also told the applicant that her relationship with other workers needed improvement. At any rate, the warning, which mentioned only tardiness, informed the applicant the next step would be a written warning.

The applicant could not continue her filing duties, because of increasing wrist pain. She called in sick on June 27, and set up an appointment to see her treating hand specialist, Dr. Yoder, on July 1. Dr. Yoder's nurse told the applicant the doctor would most likely retroactively excuse her from work to July 1. In fact, in a release dated July 1, 1997, Dr. Yoder did just that, excusing the applicant from work on June 27 and June 30. See Exhibit C.

The applicant called Ms. Stark an hour before her shift started on June 27, and left a message stating she would not be in. Ms. Stark called the applicant back that day. The applicant told Ms. Stark she would not be working until she saw Dr. Yoder on July 1, and that Dr. Yoder's nurse indicated she would be excused to July 1. Ms. Stark told the applicant that did not matter, pointing out that the applicant had previously been released to work. See Exhibit 5. Ms. Stark told the applicant she was expected to work on Monday, June 30 and to call if she did not.

The applicant in fact did not call on June 30. She saw Dr. Yoder on July 1, and he released her from work back to June 27. The employer discharged the applicant anyway.

The employer acknowledges that it discharged the applicant because she missed work on days that her doctor later excused her from working. (7) Nonetheless, it points out that she was excused retroactively, which is true, and that she did not call in as instructed on June 30.

However, the applicant told Ms. Stark on June 27 that her doctor's nurse told her the doctor would take her off work until July 1 at least. Consequently, the commission cannot find reasonable cause for discharge based on the failure to call again on June 30. The courts have previously held that it is not reasonable to expect a worker who informs an employer about continuing medical treatment that disables her from work to call in every day, Milwaukee Transformer Co. v. Industrial Comm., 22 Wis. 2d 502, 512 (1964). Calling on June 30, 1997 would seem especially futile since Ms. Stark indicated on June 27 that she did not care what Dr. Yoder said on July 1, but expected the applicant to work until that appointment.

The commission also must point out that doctors often excuse workers from work retroactively. Indeed, almost all doctor's excuses for the first day of missed work are retroactive to some extent, as it may be impossible to see a specialist for a few days after making an appointment, much less prior to the start of the first day of missed work. In this case the applicant could reasonably rely on Dr. Yoder's retroactive excuse from work for June 27 and June 30, especially where Dr. Yoder's nurse informed the applicant that the days would be excused and the applicant relayed that information to the employer.

In sum, the employer has failed to show reasonable cause for the discharge, and is liable under Wis. Stat. § 102.35.

After her discharge, the applicant remained unemployed or partially unemployed until she began a new job on June 1, 1998. She is thus entitled to 48 weeks of pay at $365 per week, or $17,520, less $2,320.56 in gross wages earned in other employment during that period. (8) Her total award, therefore, is $15,199.44.

The applicant approved a 20 percent attorney fee under Wis. Stat. § 102.26. The fee is thus $3,039.88, which shall be paid to the office of her representative, Abed Bakarat, within 30 days. The remainder, $12,159.55, shall be paid to the applicant within 30 days.

The employer sought an offset against the award for unemployment insurance benefits. However, those benefits are not wages, and the award under Wis. Stat. § 102.25(3) is made "in addition to other benefits." Consequently, unemployment insurance benefits may not be offset against the award. See Arroyo v. Woodland Offset Casting, WC Claim No. 1996015425 (LIRC, December 16, 1998); Clark v. Quality Sheet Metal, WC Claim No. 91055201 (LIRC, December 30, 1996).

Finally, this order shall be left interlocutory to cover future claims for the remaining amount of compensation potentially due under Wis. Stat. § 102.35 should the applicant again become unemployed, up to the maximum of one year's lost wages (or $18,980).

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

1. To the applicant Twelve thousand one hundred fifty-nine dollars and fifty-five cents ($12,159.55) for lost wages under Wis. Stat. § 102.35(3).

2. To the office of the applicant's representative, Abed Bakarat, Three thousand thirty-nine dollars and eighty-eight cents ($3,039.88) in fees.

Jurisdiction shall be reserved for further orders consistent with this decision.

Dated and mailed May 11, 1999
rossla.wrr : 101 : 7  ND § 7.28 § 7.30 § 7.34 § 8.17

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

NOTE: The employer's attorney has alleged that the presiding ALJ was biased. According to the employer's attorney, the ALJ lost his temper during the hearing. The transcript of the hearing at pages 82-83 does establish that the ALJ interjected his own questions during the employer's questioning of a witness. After receiving a response from the witness, the ALJ told the employer's attorney to stop "blowing smoke" and "pulling his chain." The employer's attorney told the ALJ he did not appreciate being yelled at. The ALJ replied that if he raised his voice, it was because he wanted the employer's attorney to move on with his line of questioning. The employer's attorney again told the ALJ he did not like being yelled at. The ALJ then instructed him to proceed with his questioning.

An ALJ is, of course, permitted to question witnesses and to limit questioning under the department's rules of practice. Wis. Admin. Code § DWD 80.12. Exercising that authority does not by itself show bias. While the employer's attorney asserts he was intimidated by the ALJ, the exchange between the ALJ and the employer's attorney indicates otherwise. After examining the record and the submissions by the employer's attorney regarding bias, the commission sees no evidence that the ALJ's alleged bias prevented the employer from making its case or getting the relevant facts into the record. Because the commission concludes that the employer had the opportunity to develop the record fully, the ALJ's bias, if indeed any existed, was remedied by the commission's independent and de novo review of the record.

cc: ABED BARAKA
KOCH & MCCANN SC

ATTORNEY CRAIG W NELSON
NELSON DRIES & ZIMMERMAN SC

Appealed to Circuit Court. Affirmed November 30, 1999.

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Footnotes:

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

(2)( 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, 149 Wis. 2d at 123. See also Ray Hutson Chevrolet v. LIRC, 186 Wis. 2d 118, 123 (Ct. App., 1994).

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

(4)( Back ) Comet v. LIRC, Case No. 84-1163 (Wis. Ct. App., May 22, 1985), cited in Neal & Danas, Workers Compensation Handbook, sec. 7.36 (4th ed., 1997).

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

(6)( Back ) In his decision, the ALJ found that the existence of an injury was assumed under the facts of the case by virtue of the limited compromise on the disability issue. Essentially, the ALJ applied 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 ) Employer's January 18, 1999 brief, pages 24 and 25. See also Exhibits C and 4.

(8)( Back ) The other earnings are based on figures given in the respondent's brief dated January 18, 1999 which the applicant does not dispute.