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

ROSALIE C NEWBERRY and  ROY NEWBERRY, Applicants

ROBERT HANSEN TRUCKING INC, Employer

WORKER'S COMPENSATION DECISION
Claim Nos. 1996022382 and 1996022383

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 agrees with the decision of the ALJ, and it adopts the findings and order in that decision as its own.

ORDER

The findings and order of the administrative law judge are affirmed.

Dated and mailed August 6, 1999
newberr . wsd : 101 : 5 ND § 7.31, 7.32

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The applicants, Roy and Rosalie Newberry, worked for the employer as a husband and wife truck driving team. While driving through Nebraska for the employer, the applicants were in a double accident during hazardous winter driving conditions. First, the applicants were in a relatively minor accident when their vehicle struck the rear of the vehicle in front of them while driving at a slow speed during a "whiteout." Twenty minutes after pulling their vehicle to the side of the road, the applicants were themselves struck from behind in a far more serious accident that left three others dead. The employer conceded that both applicants sustained work injuries in the accident. The employer discharged the applicants, claiming the applicants acted negligently with respect to the accidents.

The applicants bring claims under Wis. Stat. § 102.35(3), which provides in part:

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. (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) 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). However, the courts also recognize that an employer is not liable for a discharge based in good faith and for good cause on an intervening cause. Great Northern, at 318-19.

The ALJ concluded that because work injuries were conceded, the applicants made a prima facie case under Wis. Stat. § 102.35(3). She went on to conclude that the employer failed to show reasonable cause for the discharges. Accordingly, she found the employer liable under Wis. Stat. § 102.35(3).

The employer appeals. It asserts that the applicants failed to make their prima facie case under Wis. Stat. § 102.35(3), and that, even if the applicants did make a prima facie case, the employer has shown reasonable cause for their discharge.

With respect to its contention that the applicants failed to make a prima facie case, the employer contends that the applicants were required to prove that they were discharged because of their work injuries. However, as explained above, an injured worker making a claim under Wis. Stat. § 102.35(3) is only required to show that he or she was not rehired, West Bend, at 149 Wis. 2d 123; the worker need not prove why he or she was not rehired.

It is true that statements in cases like Ray Hutson Chevrolet, Inc. v. LIRC, 186 Wis. 2d 118, 122 (Ct. App., 1994) sometimes suggest a worker must also prove that he or she was discharged because of the injury. However, these statements rely on language in West Bend summarizing what the injured worker in that case had actually proven. Compare West Bend, at 149 Wis. 2d 123 and 149 Wis. 2d 126. (4) Courts and commentators who have carefully considered the issue agree with the commission's consistent holdings (5) that an injured worker need not prove why he or she was discharged in order to make a prima facie case under Wis. Stat. § 102.35(3). See State v. LIRC and Klobertanz, case no. 93-CV-4580 (Wis. Cir. Ct. Dane County, June 14, 1994) and Neal & Danas, Workers Compensation Handbook § 7.31 (4th ed. 1997). (6)

In this case, it is clear from the record that the applicants were employes of the employer who were injured and then discharged. The ALJ correctly concluded the applicants made a prima facie case. The burden thus shifted to the employer to show reasonable cause for the discharge.

In its brief, the employer summarizes the many factors it contends went into its decision to discharge the applicants, including photographs, verbal and written reports, federal regulations, noncompliance with safety regulations, the applicants' prior driving record, and its possible increased liability for future accidents under a "negligent entrustment" theory if it continued to employ the applicants. The employer also cites a company determination that the applicants were negligent in the circumstances leading to the accident and in securing the vehicle.

In the commission's view, however, all of the reasons cited by the employer are part of the same larger question posed by the last reasons: were the applicants negligent with respect to the accident and with respect to securing the vehicle?

First, the commission notes that there is little basis for finding Ms. Newberry negligent in either respect. She was not driving, and she evidently played no role in making the decisions regarding the securing of the vehicle. It is evident that Mr. Newberry made those decisions.

Putting aside that issue, the commission also agrees with the ALJ that the record contains no evidence of negligence by Mr. Newberry either, other than the simple fact he was involved in the first, minor accident in adverse conditions. Given the absence of evidence concerning a clear instruction from the employer to pull off the road immediately upon encountering whiteout conditions, the commission concludes that Mr. Newberry was free to use his judgment in attempting to get his vehicle out of harms way. As the second accident itself shows, attempting to pull a vehicle off to the side of the road in conditions of poor visibility does not necessarily guaranty safety. In sum, the commission concludes that Mr. Newberry's decision to continue forward at a slow rate of speed during the whiteout does not provide a reasonable basis for a discharge.

The commission likewise concludes that the applicants' conduct in attempting to secure the vehicle after the first accident does not provide a reasonable basis for discharge. As is evident from the report of the employer's adjuster, S.S. Batty, and the photographs, the applicants' vehicle was at most the width of a wheel in the right traffic lane after Mr. Newberry pulled over to the shoulder. Mr. Batty's report persuasively and flatly contradicts the Nebraska patrol officer's assessment that the applicant's trailer was far into the right lane at an angle. Mr. Batty's report contains the following description of the situation between the first and second accidents:

"According to the photographs that your insured driver took at the scene, Mr. Lindaman's trailer was stopped with the left wheels just barely in the driving lane, and the majority of the unit off on the right shoulder. Your insured states that he was pulled over on the right shoulder as well, with his entire tractor and trailer in a similar position. His photographs would indicate that the white line was just on the inside edge of his left front wheel, leaving the width of the wheel in the driving lane. One of his photographs clearly shows a semi passing him in the right lane without any difficulty. According to Mr. Lindaman, James Krull and your driver and co-driver, they sat in that position for approximately 20 minutes. Your driver left his four-way flashers on. There were vehicles stopped all over the road and flares or triangles would have been useless under the circumstances. There were vehicles stopped behind your insured's truck as well. With the extreme wind chill, no one was willing to take a chance on working outside of the vehicles for any length of time."

Deposition exhibit 3, report of S.S. Batty, page 2. In addition, the testimony at the hearing indicated that once Mr. Newberry pulled his vehicle into the position described by Mr. Batty, the placement of the cars in front of him and a mechanical problem precluded an attempt to move the vehicle further onto the right shoulder.

Given this record, the commission cannot conclude that DOT regulations or the employer's policy in securing a vehicle after an accident were violated. The Nebraska patrol officer did not cite the applicant for any violation. The employer's assertion of possible future liability under a theory of negligent entrustment, which necessarily depends upon a conclusion that the applicants behaved negligently, is not a reasonable basis for discharge either. In sum, the commission concludes the ALJ properly found the employer liable under Wis. Stat. § 102.35(3).

PAMELA I. ANDERSON, COMMISSIONER (Dissenting):

I am unable to agree with the result reached by the majority herein and I dissent. The question is did the employer unreasonably refuse to rehire the employes following the work injuries? The applicants drove as a team so if the employer refused to hire one, the employer would not be realistically able to hire just one. The employer fired the applicants because "We felt in any situation when you had a rear-end accident, the responsibility, the fault goes with the person who does the rear-ending. In this situation even with adverse conditions, the visibility being as short as it was, they should have pulled off the highway and parked alongside the highway or proceeded at a slower pace so they would not run into another vehicle.we felt that the driver was negligent in not removing the equipment from the roadway and therefore contributing to the second accident which resulted in three fatalities. .I mean we looked at their past history, and they did have a previous accident in '93, I believe it was."

The employer also argued "It's our advantage in a particular accident to retain the driver and defend that he did nothing wrong. When we terminate the driver, it reflects on the fact that he may have done something wrong and the other party that's been injured has more, a better case against the trucking company..we feel that they were negligent in those two accidents and that we had not only cause but responsibility to terminate them."

This case is not a question of whether the applicants were guilty of misconduct but only if their driving and judgment were such that the employer was not comfortable sending them back on the road. The employer was very concerned that they did not pull off the road at the beginning of the whiteout conditions. The road had a flat shoulder so it would not have been hazardous to pull over to the side of road as it would have been in the mountains for the applicants. The employer was concerned that there could be future accidents where passengers died like they did in the second accident. The employer also believed that it would have greater liability if it allowed unsafe drivers to continue working for them. There is no question but that at least a portion of the vehicle was in a traffic lane at the time of the second accident.

For these reasons, I do not believe that the employer unreasonably failed to rehire the applicants. I would reverse and dismiss.

________________________________________
Pamela I. Anderson, Commissioner

cc: ATTORNEY RICHARD C KELLY
MEALY & KELLY SC

ATTORNEY DANIEL R DINEEN
VANDEN HEUVEL & DINEEN SC

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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, at 149 Wis. 2d 123.

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

(4)( Back ) Significantly, in West Bend, the employer admitted it discharged the worker because of the work injury, but asserted the discharge was necessary because of work restrictions imposed after the worker injury. West Bend, at 149 Wis. 2d 126-27. To the contrary, in Ray Hutson, Inc., the court found that the employer met its burden of showing a reasonable cause unrelated to the work injury: increased efficiency and reduced costs as a business reason for eliminating the applicant's job. Significantly, the court did not find that the injured worker had failed in his burden of making a prima facie case of proving that he was fired because of the work injury.

(5)( Back ) See for example Muhbash-Shir Muhammed II, v. Maple Leaf Farms Inc, WC claim no. 95002415 (May 8, 1997); William Vollmer v. Henrich Industries Inc, WC claim no. 1997001593 (May 20, 1999).

(6)( Back ) Indeed, citing West Allis, Neal & Danas write: "Section 102.35(3) does not require a showing that the employer's motivation for discharging the employee is related to the industrial injury, but only that the termination is `without reasonable cause.'" Id., at § 7.32. On this point, see also Michael J. Percifield v. Midland Plastics Inc, WC claim no. 91064268 (October 31, 1994), affirmed sub nom. Midland Plastics v. LIRC, WC case no. 96- 0282-FT (Wis. Ct. App., May 22, 1996) (holding "the employer must still show the discharge was for a reasonable cause, not simply one unrelated to worker's compensation.")