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


RANDY BRUNGRABER, Applicant

JOSEPH PARENT H  INC, Employer

WORKER'S COMPENSATION DECISION
Claim No. 1997-058704


In June 1998, the applicant filed an application for hearing alleging, among other things, that the employer unreasonably refused to rehire him following a work injury. A hearing was held before an administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development on June 19, 2000.

Prior to the hearing, the employer conceded a compensable injury on October 17, 1997, and an average weekly wage of $470.35. At issue was the employer's liability under Wis. Stat. § 102.35(3). On September 6, 2000, the ALJ issued his decision dismissing the application for hearing. 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, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The applicant drove a truck for the employer, a construction company. He started in March 1997, sustained a conceded work injury in October 1997, and returned to work in November 1997. He was given a seasonal layoff in the winter of 1998, but was not recalled when the layoff ended in the spring of 1998.

The applicant's job involved driving trucks carrying pre-cast concrete forms such as septic tanks. The work involved considerable interaction with construction contractors. The applicant was required to follow instructions from the contractors, presumably about where to put his truck during the unloading process. A large part of the applicant's job was performed off the employer's premises.

According to the employer's manager, the applicant was fired because of his work ethic. Contractors complained the applicant would become angry and argumentative at the jobsites, and not take instruction from the contractors. As a result, the manager continued, some of the contractors specifically asked he not be sent to a job site. The applicant, however, says he was unaware of any such complaints. The record does not indicate that the employer's manager was actually present at the various job sites to view the applicant's interaction with contractors; the commission concludes that the manager's testimony in this regard is a second recitation of the complaints of the unnamed contractors.

The employer's manager also claimed the applicant dillydallied on job sites -- or just went home -- instead of promptly returning to the employer's premises for more work. He mentioned specifically one occasion when the another driver made three runs to location on a farm where a bunk feeder was being installed and the applicant had only made one run.

Exhibit 1 is a summary of the employer's problems with the applicant that was prepared the day of the hearing. It suggests that the applicant would drive home instead of returning to the employer's premises, and then tell the employer he was in fact on the job site. However, as is clear from point 3 of exhibit 1, the belief of the employer's manager was based on what the employer was told by others. The employer's manager did not personally observe the applicant delaying at the job sites (or for that matter the employer's premises) or going home during work hours.

For his part, the applicant testified he "gave her" meaning he did not dillydally on job sites. He acknowledged that sometimes there was "lapping," meaning evidently another worker would get in another run before the applicant did. However, he testified that neither the employer nor a coworker ever told him he was too slow.

Exhibit 1 also mentions an incident when the applicant attempted to operate a crane, even though he was not a crane operator, with results that created a potentially dangerous situation. The commission cannot tell whether the employer's manager witnessed this event directly. The applicant, however, insists a coworker actually operated the crane. During the credibility conference, the presiding ALJ frankly admitted he did not have a definite belief one way or another about whether the applicant actually attempted to operate the crane.

The employer's manager testified he talked to the employer about his short-comings. However, the applicant denied the employer ever complained to him about slow returns to the job site, or told him to his face he was a bad employee. As noted above, there are no written warnings in the record. Nor is there any first hand testimony to substantiate the poor performance on the job sites identified by the employer's witness.

The employer's manager acknowledged giving the applicant overtime hours despite his performance lapses. The manager testified that at one point he cut off the applicant's overtime to try to motivate him to perform better. However, the punishment did not last long, as the applicant worked overtime for some period in every month of his employment except the first. The employer's manager, while testifying that sometimes he had to give the applicant overtime because of the press of business, admitted that on other occasions he assigned overtime based on how he felt. Nonetheless, the manager acknowledged, the amount of overtime the applicant worked was pretty close to that worked by other drivers.

Wisconsin Statutes § 102.35(3), provides as follows:

"102.35(3) Any employer who without reasonable cause refuses to rehire an employee who is injured in the course of employment, where suitable employment is available within the employee's physical and mental limitations, upon order of the department and in addition to other benefits, has exclusive liability to pay to the employee the wages lost during the period of such refusal, not exceeding one year's wages...."

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 employees 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). The statute applies to unreasonable discharges after a return to work following a work injury, as well as simple failures to rehire; an employer cannot evade liability by showing a short-term pro forma rehire. A worker has the burden of proving he or she was an employee with a compensable injury who was denied rehire or discharged. The burden then is on the employer that the worker was discharged with good cause. Dielectric Corp. v. LIRC, 111 Wis. 2d 270, 278 (Ct. App., 1982).

This "very correct standard" set out by the court in Dielectric was adopted by the supreme court in West Bend v. LIRC, 149 Wis. 2d 110, 121 (1989). In that case, the supreme court specifically stated that "after an employee 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 employee." West Bend, at 149 Wis. 2d 123.

The employer's reasonable cause for the discharge or failure to rehire may be that the work injury prevents the worker from doing available work. In that event, the 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. West Bend, supra, at 149 Wis. 2d 126

An employer may also meet its burden by establishing that the employee was discharged for a reasonable cause unrelated to the injury, such as misconduct, poor performance or a business slowdown. (1)  When a discharge is not based on medically justified work restrictions attendant to the work injury, 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 (LIRC, September 13, 2000); Christina Kiefer v. Menard Cashway Lumber, WC claim No. 1997022484 (LIRC, September 27, 2000). 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.

However, the courts also 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 employees who have sustained a work injury at some juncture in their employment. Dielectric Corp., at 111 Wis. 2d 278, footnote 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.

In this case, the parties agree that the applicant was an employee of the employer's and that he was injured in October 1997. He then worked briefly in November 1997, then was not recalled following the winter 1997-98 layoff. He has made his prima facie case, and the burden shifts to the employer to show reasonable cause for the applicant's discharge.

In analyzing the employer's burden in this regard, the commission notes that the facts in this case do not warrant the concern about he "life-time job protection" situation discussed in the footnote in the Dielectric decision. The applicant worked only a short while after his injury before the seasonal lay off from which he was not recalled. In other words, in order to show no bad faith intent to evade its liability under the statute, it is reasonable to expect more from the employer than might be expected if the employer fired the applicant a few seasons out from the injury.

However, in this case, the employer really has shown very little to meet its burden of proving a reasonable cause for the applicant's discharge. The contractor complaints are hearsay. No contractor, nor any employee of a contractor, nor coworker has testified about the applicant's performance on the jobsites. Nor have the complaints been complaints reduced to contemporaneous warning documents in a personnel file maintained by the employer itself, which might serve as the basis for a claim that the complaints could be admitted as records of a regularly conducted activity. All the record contains is the testimony of the employer's witness to the effect that certain unnamed contractors complained about the applicant. Similarly, while the employer blames the applicant for the crane accident, it provided no first hand evidence to counter the applicant's testimony that another worker was at fault.

The commission notes also the lack of a written warning concerning the employer's claims that the applicant did not return to the employer's plant to pick up material for another run when he was supposed to. If an employer truly suspected a worker was going home instead of returning to work, or unjustifiably delaying returning to the employer's premises, it seems reasonable to expect written evidence of a warning or other disciplinary action. Alternatively, the employer could have brought a witness (either a contractor employee or another driver) with firsthand evidence to establish a delay or deviation in returning to the worksite. Instead, the employer offers only the manager's secondhand recital that others told him the applicant wasted time or outright left work instead of promptly returning to the employer's plant to counter the applicant's testimony that he "gave her."

The commission by no means finds that the reason for which the employer discharged the applicant, if proven, was not good cause or reasonable cause for his discharge. Had the evidence at the hearing been sufficient to prove that the applicant actually argued with contractors or unreasonably delayed returning to the employer's premises, this would be a different case indeed. But the commission cannot conclude the record developed at the hearing proves the employer's asserted good cause for discharging the applicant. (2)

In sum, the commission cannot conclude the employer has met its burden of proving a reasonable cause or good cause for the discharge on this record. Nor does the employer claim suitable work was not available within the applicant's physical and mental limitations. Instead, the commission is satisfied that the applicant was discharged, without reasonable cause, because of his work injury. Accordingly, imposition of the payment under Wis. Stat. § 102.35 is warranted.

The next issue is the amount of the penalty to be assessed. Wis. Stat. § 102.35(3) provides for a penalty in the amount of one year's wages, which the commission treats as a monetary rather than a temporal limit. The commission has also held that "the amount of lost wages to be awarded in the case of a seasonal employee is the amount of wages lost over the period of the year that he would have earned for that specific seasonal work." Daniel H. Boone v. Wild Golf, Inc, WC Case No. 95038997, 1998 WI Wrk. Comp. LEXIS 13 [*4- *5](February 27, 1998).  See also Margaret R. Bachhuber v. City of Kaukauna, WC case no. 88000016 (LIRC, July 27, 1994);  Mushbash-Shir Muhammed II v. Maple Leaf Farms, Inc., WC Case No. 95002415 (LIRC, May 8, 1997) and   State of Wisconsin v. LIRC and Klobertanz, Case No. 93-CV-4580 (Wis. Cir. Ct. Dane County, June 14, 1994).

In this case, the best evidence in the record is that applicant's seasonal employment with the employer in 1997 lasted from some point in March through some point in November. In the absence of precise information in the record, (3) the commission concludes the applicant's seasonal employment with the employer would have lasted 35 weeks, from the third Monday in March to the third Monday in November of each year. At the conceded average weekly wage of $470.25, "one year's wages" for the purposes of Wis. Stat. § 102.35 equals $16,458.75. (4)

The applicant is thus entitled to a maximum of $16,458.75 under Wis. Stat. § 102.35(3). However, the commission generally will not order payment of the liability under Wis. Stat. 102.35 (3) prospectively in a lump sum on the assumption the full amount of the penalty will ultimately accrue. Rather, the commission follows a week-by-week approach considering both wages lost from the respondent-employer, and wages earned elsewhere, to the date of hearing. Mark Gutkowski v. Bell Laboratories, Inc., WC case no. 85-01922 (LIRC, October 30, 1987);  Jeanne Kruger v. Belleville Printing, WC case No. 93022421 (ALJ, February 28, 1994), affirmed (LIRC, September 29, 1994), affirmed sub. nom. Dwayne Larson, et al., v. LIRC, case no. 94-CV-3316 (Wis. Cir. Ct. Dane County, November 20, 1995);   Ronald Poetz v. Marshland Industries, WC case No. 96038910 (January 15, 1998).

The next question, then, is how much of this maximum amount is he actually entitled to. This depends on two factors: (a) the weeks during which the penalty accrues (i.e., the weeks of lost wages), and (b) the amount of wages earned elsewhere during those weeks to offset the wage loss.

Due to the seasonal nature of the applicant's employment, the applicant in fact has only lost wages due to the employer's unreasonable refusal to rehire him from the third Monday in March to the third Monday in November of each year. The commission therefore finds that the Wis. Stat. § 102.35(3) penalty accrues, and is subject to offset, only in those weeks of each year. Because the limitation to "one year's lost wage" has consistently been construed to be a monetary, not a temporal, limit, (5)  if the $16,458.75 limit is not reached in calendar 1998 it carries over into 1999 and succeeding years.

In 1998, the applicant had income from two sources: unemployment insurance of $4,726.00 and earnings in some unknown amount from Emerson Sand and Gravel. The record does not indicate when during the year these payments were earned or paid.

With respect to the unemployment insurance, it does not matter. Under prior commission holdings unemployment insurance is not offset against the employer's liability under Wis. Stat. 102.35(3) (which is to be paid "in addition to other benefits.") Giese v. Associated Contractors Corporation, WC Case No. 89- 075597 (LIRC, March 4, 1992). Thus, the only potential offset against the applicant's entitlement under Wis. Stat. § 102.35(3) for the weeks of wage loss in 1998 is his earnings with Emerson Sand and Gravel.

However, the commission cannot tell from the record before it how much the applicant earned from Emerson Sand and Gravel, and what portion was earned during the weeks from the third Monday in March to the third Monday in November in that year. Assuming some wages were earned during that period, they would be offset against the applicant's entitlement of $470.25 per week accruing during that period. In that event, the remainder of the $16,458.75 limit would be carried over into calendar year 1999.

The applicant testified he did not start work at Harvey Concrete until March 29, 1999. The third Monday in March in 1999 was March 15, 1999. Accordingly, at least two weeks of the penalty totaling $940.50 have accrued in 1999.

Beyond that, however, the commission cannot determine the amount of the payment under Wis. Stat. § 102.35 that has now accrued. Accordingly, this case is remanded to the Workers Compensation Division for further appropriate action, including hearing and decision if necessary, to fix the amount of the penalty in accordance with the foregoing.

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

INTERLOCUTORY ORDER

The findings and order of the administrative law judge are reversed. The employer without reasonable cause refused to rehire the applicant in violation of Wis. Stat. § 102.35(3). This matter is remanded to the Workers Compensation Division for further appropriate action, including hearing and decision if necessary, to determine the amount of the payment to which the applicant is entitled under Wis. Stat. § 102.35(3), consistent with the foregoing.

Jurisdiction is reserved.

Dated and mailed March 1, 2001
brungrr . wrr : 101 : 1  ND § 7.32  § 7.34  

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner


MEMORANDUM OPINION

The commission conferred with the presiding ALJ concerning witness credibility and demeanor. His impression was that the employer's witness was more credible than the applicant, though he acknowledged he had a question about whether the applicant was actually involved in the crane incident. However, the commission must observe that the employer's witness had no first hand evidence to establish his allegations that the applicant took too long to return from jobsites, or why the contractors were dissatisfied with him. In addition, the employer assigned the applicant overtime hours in virtually every week he worked, despite its alleged dissatisfaction with his performance.

Finally, the commission notes the lack of written warnings. The commission appreciates that the employer's manager may have chosen not to issue written warnings for practical reasons; that is entirely his prerogative. However, had the written warnings existed, they could have resolved the conflict in the testimony about whether the applicant was every warned about his job performance and provided at least some contemporaneous support for the hearsay testimony concerning the contractor complaints and dilly-dallying. Most obviously, had the warnings been issued before the work injury, they would have gone a long way toward establishing a good faith motivation for the applicant separate from the injury itself.

cc:
Attorney Robert J. Janssen
Attorney Mark H. Miller

PAMELA I. ANDERSON, COMMISSIONER (dissenting):

I am unable to agree with the result reached by the majority herein and I dissent. The employee had a work injury on October 17, 1997. He returned to work on November 17, 1997 and worked until he was laid off at the end of the season on December 3, 1997. The employer had a number of complainants about the applicant and decided not to rehire hire him. The employer witness testified that he verbally tried to give the employee constructive criticism but that he never got any better. He also testified "If I wrote everything down I wouldn't get any work done. I didn't make a written notice."

The majority was concerned that there were no written warnings and the employer did not bring in any contractors to complain about the applicant's work ethic. It is clear that Exhibit 1 was prepared for the hearing but that does not mean that the complainants listed by Mr. Donahue were not valid complainants. The administrative law judge who saw the parties believed that Mr. Donahue was more credible than the applicant. The employer did call the employee and tell him that they did not need him anymore. The applicant even testified that "I wrecked the truck that was why he got rid of me, wrecking the truck."

The majority was also concerned that the applicant continued to receive overtime. The employer explained that there was a lot of overtime so the employee got some of the overtime. The employer testified "Overtime was given to him. It was the luck of the draw. Before overtime. Sometime they could refuse overtime.For a while we stopped his overtime because he wasn't doing the job. Other times we had to give him overtime. It was day to day at Parent. We reluctantly gave him overtime.We work a lot of overtime in our business."

For all these reasons, I would accept the assessment of the administrative law judge and affirm his decision.


____________________________________
Pamela I. Anderson, Commissioner


Appealed to Circuit Court.

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Footnotes:

(1)( Back ) See Great Northern Corp. v. LIRC, 189 Wis. 2d 318-19 (Ct. App., 1994); Ray Hutson Chevrolet v. LIRC, 186 Wis. 2d 118, 123 (Ct. App., 1994).

(2)( Back ) In the absence of firsthand testimony or admissible hearsay about the events leading to the manager's conclusion the applicant had a poor work ethic, the commission cannot conclude that the employer established reasonable cause based on the testimony of the employer's manager. The West Bend and Dielectric cases indicate that an employer has the burden of proving, not merely articulating, its good cause or reasonable cause for discharging an injured worker. The dissent suggests that the applicant admitted he was fired for damaging the employer's truck. (This is a separate incident than the crane accident, for which the applicant denies fault.) However, immediately after testifying that the employer got rid of him for damaging the truck, the applicant went on to state the incident came to nothing. The employer's manager, of course, testified he did not recall the applicant damaging a truck. He also minimized the effect of such an incident, noting that he himself had damaged trucks, and that such accidents happened because the trucks were operated in tight spaces. He specifically testified that the applicant was fired because of his "work ethic" and went on to mention the contractor complaints. The employer's manager did not testify the applicant was fired for damaging the truck.

(3)( Back ) Other than the applicant's testimony he worked for the employer from March 1997 to some point after November 17, 1997, the only other relevant testimony as to dates is that he started working for another employer on March 29, 1999. As explained below, a thirty-five week season at the average weekly wage of $470.25 squares roughly with what the applicant would have made in 1997 had he not been injured.

(4)( Back ) The applicant earned $14,429.08 in wages from the employer for the 1997 construction season. However, during the 1997 season, the applicant was off work for a month due to injury. Adding in wages for that month (or $470.25 per week times 4.333 weeks equals $2,037.59) would yield the figure of $16,466.67, or very nearly the $16,458.75 figure adopted by the commission based on 35-week season.

(5)( Back ) Mushbash-Shir Muhammed II v. Maple Leaf Farms, Inc., WC claim no. 95002415 (LIRC, May 8, 1997). See also: Neal & Danas, Workers Compensation Handbook, § 7.34 (4th ed., 1997).


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