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


JOCO ZARIC, Applicant

TEXTRON INC, Employer

TEXTRON INC, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 1997-055178


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, except that it makes the following modifications:

Delete the third sentence of the "synopsis" portion of the administrative law judge's Decision and insert therefor:

Beyond that, he engaged in such behavior as to cause the employer to terminate his employment with good cause and for reasons totally unrelated to that injury, therefore, the department declines to exercise its discretion to make a determination relating to loss of earning capacity.

Delete the 21st, 22nd and 23rd paragraphs under the administrative law judge's Findings of Fact and Conclusions of Law and insert therefor:

In this case, the employe was discharged for falsifying his production records. The employer has demonstrated good cause for terminating the employe's employment which was unrelated to the employe's physical or mental limitations relating to his work injury. The employe's actions were tantamount to an unreasonable refusal of work which he could have performed. The department therefore declines to exercise the discretionary authority set forth in Wis. Stat. § 102.44(6)(b) to make a determination relating to loss of earning capacity.

Delete the 25th paragraph under the administrative law judge's Findings of Fact and Conclusions of Law.

Delete the last sentence on page 14 of the administrative law judge's Decision and insert therefor:

Having engaged in conduct which was the functional equivalent of a `refusal of work' within the meaning of the statute, he created the circumstance which caused the employer to discharge him with good cause and for reasons not related to the injury; thus, the department declines to exercise its discretion under Wis. Stat. § 102.44(6)(b), to address any loss of earning capacity award.

ORDER

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

Dated and mailed August 2, 2000
zaricjo.wmd : 132 : 6   ND § 5.23

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner


MEMORANDUM OPINION

The applicant has petitioned for commission review of the adverse findings and order of the administrative law judge. The commission has reviewed the record in this matter and affirms the administrative law judge's decision and order as modified. The commission's modification merely notes that in a loss of earning capacity claim, where applicant has been discharged for good cause and for a reason which is tantamount to a "refusal of work," the department and commission decline to exercise the discretion granted in Wis. Stat. § 102.44(6)(b) to award loss of earning capacity, rather than find such discharge to act as an absolute bar under Wis. Stat. § 102.44(6)(g).

cc: ATTORNEY MICHAEL H GILLICK
MURPHY GILLICK WICHT & PRACHTHAUSER

ATTORNEY ROBERT P OCHOWICZ
KASDORF LEWIS & SWIETLIK SC


[ Search Decisions ] - [ WC Legal Resources ] - [ LIRC Home Page ]