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


CHRISTINA KIEFER, Applicant

MENARD CASHWAY LUMBER, Employer

WORKER'S COMPENSATION DECISION
Claim No. 1997022484


In June 1999, the applicant filed an application for hearing, contending that the employer should be held liable for an unreasonable refusal to rehire under Wis. Stat. § 102.35(3). Following a hearing on January 6, 2000, an administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development dismissed the application by order dated March 13, 2000. The applicant filed a timely petition for review.

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, and after conferring with the presiding ALJ concerning witness credibility and demeanor, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The applicant worked as checker or cashier for the employer. She hurt her back lifting a 62-pound bucket of drywall paste on February 18, 1997.

The applicant underwent an independent medical examination on August 15, 1997. The independent medical examiner, Kenneth Lay, M.D., concluded the applicant completely recovered from her injury by May 15, 1997, and that her continuing problems after that point were unrelated to the February 1997 lifting injury.

The applicant subsequently underwent two back surgeries in late-August 1997 and June 1998, which she alleges were related to the work injury. In the interim, she periodically worked for the employer on restricted duty.

On July 6, 1998, the employer sent the applicant a letter stating that Dr. Lay did not view her continuing condition as the result of a work injury, and that she had to apply for "Personal Leave" within five days or be fired. The applicant submitted some type of response to this (a work restriction slip from her doctor) on July 22, 1998. Nonetheless, she was fired for failing to return the Personal Leave request form on time.

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....

Wis. Stat. 102.35(3) 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), 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). (4)

The applicant's claim for disability compensation under Wis. Stat. ch. 102 was compromised. The order approving the compromise is in the record before the commission, but not the actual terms of the compromise. However, there is no assertion by the applicant that the employer conceded that the work injury caused her continuing disability in the compromise. (5)

In this case, the only medical evidence in the record is the report from IME Lay. As a result, the record only establishes that the applicant's work injury caused a few months of disability after which she could work without restriction. The record does not show the applicant required the two back surgeries to treat the injury, or that the employer was incorrect in regarding her continuing disability into July 1998 as not related to the work injury.

An employe must show a work injury and a discharge to make a prima facie case under Wis. Stat. § 102.35(3). The employer must then show reasonable cause for the discharge. Reasonable cause for discharge or failure to rehire must include an absence of motivation related to the fact that the employee sustained a work injury. Karen Sann v. Badger Care-A-Vans, WC claim no. 1997-028543 (September 13, 2000).

However, the courts have recognized that there must be some end to the protection against unreasonable discharges under Wis. Stat. § 102.35(3). Indeed, the court of appeals has held that the statute does not provide lifetime job protection from unreasonable discharges for all employes who have sustained a work injury at some juncture in their employment. Dielectric Corp., at 111 Wis. 2d 278, note 6. Instead, employers may be able to avoid liability under Wis. Stat. § 102.35(3) if they show there was no bad faith on its part to evade the statute. Id. The absence of bad faith may be shown when the worker is fired for an intervening cause, such as absences which have nothing to do with the work injury. Great Northern Corp., 189 Wis. 2d 319. In this case, the absence of a bad faith intent to evade the statute is shown by Dr. Lay's uncontested opinion establishing that the applicant's extended absence -- leading to the employer's demand the applicant apply for personal leave -- was not related to the work injury.

The commission therefore concludes that the employer cannot be held liable under Wis. Stat. § 102.35(3). The application shall be dismissed.

ORDER

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

Dated and mailed September 27, 2000
kieferc.wrr:101:5   ND  § 7.32

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

It could be argued that the employer did not act reasonably in discharging the applicant for failing to comply with its demand that she apply for personal leave. Attached to the applicant's second brief on appeal to the commission is a July 8, 1998 letter from the applicant's attorney responding to the employer's July 6, 1998 letter demanding she apply for personal leave. The attorney's letter states that the applicant intended to apply for personal leave, but was not conceding her injury was not work-related. However, the attorney's letter was not an exhibit at the hearing, and is not part of the record in this case.

Beyond that, the ALJ, with whom the commission conferred regarding witness credibility and demeanor, was left with strong impression that the employer acted in good faith in its attempts to return the applicant to work. In any event, as explained in the body of this decision, the commission must conclude from the record that the applicant had healed from her work injury long before her discharge, and that the attendance problem ultimately leading to the applicant's discharge was not related to her work injury. Consequently, the employer cannot be held liable under Wis. Stat. § 102.35(3).
cc: ATTORNEY LAWRENCE E CLASSEN
HAYES VAN CAMP & SCHWARTZ SC
222 S BEDFORD ST
MADISON WI 53703

BRAD A CARDER
CORPORATE COUNSEL
MENARD INC
4777 MENARD DR
EAU CLAIRE WI 54703-9625


kieferc.wrr

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

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

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

(5)( Back ) The commission has previously held that where a disability claim is compromised, the worker must still show a compensable injury under Wis. Stat. § 102.35(3), unless the injury was conceded. William Vollmer v. Henrich Industries Inc., WC claim no. 1997001593 (LIRC, May 20, 1999).