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


KELVIN JENKINS, Applicant

MODERN BUILDING MATERIALS INC, Employer

WORKER'S COMPENSATION DECISION
Claim No. 1995-067462


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 May 4, 2001
jenkins . wsd : 101 : 1 ND § 7.25  § 8.17

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner



MEMORANDUM OPINION

1. Facts and posture.

This is an unreasonable refusal to rehire case under Wis. Stat. 102.35(3). The employer and the applicant have both appealed. In order to aid discussion of the issues on appeal, the facts may be briefly stated.

The applicant began working for the employer, a manufacturer of road construction products (manholes, culverts, etc.) in August 1995. He injured his toe at work on October 18, 1995. He testified that upon returning to work on October 19, 1995, his toe caused him some problem while he was crouching to do some drilling. He complained to a foreman (Sam), who relayed the complaint to a superior (Bruce). Bruce summoned the applicant and, according to the applicant, said:

"Sam said you were having problems.. Well, we're just going to have to terminate you."

Transcript, pages 15-16.

The employer's defense, essentially, is that they laid off the applicant for economic reasons due to a seasonal slowdown. This of course is a valid defense to an unreasonable refusal to rehire claim. (1)   However, the employer did not bring in any witness to the hearing with actual knowledge on that point. Instead, the employer brought its human resource and safety director (Julie Dvorak) who testified she knew the applicant was not terminated because his personnel file did not contain a termination letter. Transcript, page 46-48, 55. Ms. Dvorak, who did not work for the employer in 1995, had no firsthand knowledge of the facts of the applicant's separation.

However, there is no layoff letter in the applicant's personnel file either; in fact the words "Term 10/25/95" appear on the face of the file itself. Exhibit 1. Nor did the employer have a witness to counter the applicant's testimony that he was in fact discharged. At the end of the hearing, the employer asked the ALJ for a 15-minute recess to obtain such a witness. It claimed then, and still claims on appeal, that it was surprised by the assertion that the applicant was fired, and thought it was defending against a claim that the applicant was laid off but not rehired. The ALJ denied the employer's request for a postponement to get its witness.


The supreme court and court of appeals have held that Wis. Stat. § 102.35 (3) (2)  "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 to demonstrate 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 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.

In his decision issued after the hearing, the ALJ found against the employer. He concluded that the applicant was discharged, not laid off for economic reasons. The ALJ went on to find the discharge was a violation of Wis. Stat. § 102.35(3) in that the employer refused without reasonable cause to rehire the applicant when suitable work was available within his physical and mental limitations. The ALJ assessed the one year's wages penalty in the amount of $22,126.52 under Wis. Stat. § 102.35(3).

The ALJ's decision details considerable evidence proving that the applicant was fired or discharged, rather than laid off. The ALJ noted particularly the handwritten note on the applicant's personnel file stating: "Term 10/25/95." Further, the notation on the applicant's attendance calendar in the personnel file for the day after the alleged discharge--October 20, 1995--is "5." That is the code for plant injury, not the code for a layoff due to lack of work. In addition, the applicant's personnel file includes a form UCB 16 Separation Notice dealing with the applicant's claim for unemployment insurance. See exhibit 1. The form Separation Notice indicates that the applicant told the Unemployment Insurance Division that he had been fired by the employer, and asks the employer to return the form if the information on the form is incorrect. It does not appear from the documents in the applicant's personnel file that the employer returned the Separation Notice form to the Unemployment Insurance Division to correct the applicant's characterization of his separation from employment.

On the other hand, the record contains no firsthand evidence that the employer laid the applicant off for economic reasons, and no adequate basis for inferring such a layoff. On the record as it stands, the only reasonable conclusion is that reached by the ALJ: the employer fired the applicant, as he testified.

2. Issues on appeal.

On appeal, the employer contends that it was surprised by the applicant's claim he was fired, and was prepared instead to defend against a claim the applicant had been laid off and had not been recalled. However, the commission cannot conclude the employer is justified in asserting it was surprised. First, the courts have long held that Wis. Stat. § 102.35(3) includes discharges as well as simple refusals to rehire. (3)   Second, as the applicant's attorney points out, he sent a letter to the employer giving it notice he intended to claim a termination from employment. See exhibit E. Third, of course, its own personnel file describes the applicant's departure as "term." Fourth, the form UCB 16 Separation Notice in the applicant's personnel file establishes that the applicant represented to the Unemployment Insurance Division, well in advance of the hearing in this case, that he had been fired.

Against this, the employer asserts that the ALJ did not treat it fairly, because the ALJ allowed the applicant a half hour to review some materials brought pursuant to a subpoena prior to the hearing, but did not allow the employer 15 minutes to get its witness. The commission notes, initially, that the decision to grant a postponement or adjournment is within an ALJ's discretion, and the commission traditionally accords ALJs a great deal of deference on that issue rather than interfere with how ALJs control their calendars. Belknap v. Wisconsin Tissue Mills, WC Claim nos. 1989069201, 1998029690, 1995052832 (January 29, 1999),  Neala Winchel v. Franciscan Sisters, WC Claim No. 93066564 (LIRC, October 31, 1994); and Cerny v. Stoughton Trailers, WC Claim No. 95017166 (LIRC, 1997). Beyond that, the situations are obviously distinguishable.

There is no formal pre-hearing discovery in workers compensation cases, except as ordered by an ALJ under Wis. Stat. § 102.17(1)(b) or provided for under other provisions of Wis. Stat § 102.17 requiring advance production of the reports of certain experts or of claimed medical expenses. See: Premeau v. Nite Cap Inn, WC claim no. Claim No. 1997010996 (LIRC, June 30, 1999), aff'd sub nom. Premeau v. LIRC, No. 00-0266 (Wis. Ct. App. Jan. 11, 2001). However, subpoenas duces tecum requiring the production of books or records at the hearing are allowed under Wis. Stat. § 102.17(2m). The ALJ was entirely reasonable in allowing a recess to the applicant to examine records he had every right to request pursuant to subpoena, but which the employer was not required to produce prior to the hearing.

On the other hand, the employer did not bring in a witness to disprove the applicant's assertion he was fired, or to justify a termination, even though the applicant's attorney indicated he was proceeding under that theory well in advance of the hearing and even though the employer's own file indicated the applicant was terminated. Indeed, the employer did not even bring in a witness who could establish its own theory-that the applicant was laid off for economic reasons in October 1995. Given the minimal burden on the applicant to prove a prima facie case under Wis. Stat. § 102.35(3), after which the burden shifts to the employer to provide reasonable cause for the discharge or failure to rehire, (4)   it is reasonable to expect that the employer would have brought in somebody with firsthand knowledge of the facts of the applicant's separation from employment. Under these facts, the ALJ's decision not to grant a postponement to allow the employer to secure a witness with firsthand knowledge was reasonable and well within his discretion.

The applicant also raises an issue on appeal. He argues that the ALJ misfigured the "one year's wages" figure by understating his average weekly wage used to derive the one year's wages. Specifically, the applicant asserts the ALJ erred by dividing his total earnings with the employer ($4,255.17) by ten weeks instead of the nine weeks he actually worked. In fact, it does appear the applicant only worked for the employer for about nine weeks. Under the arithmetic rules of division, a lesser denominator increases the quotient if the numerator remains constant. In other words, the award should be higher, if assuming that it is correct to multiply the applicant's average weekly wage by 50 to get the "one year's wages" figure.

However, the commission has held that wages in seasonal employment should not be expanded to a 50-week wage for the purpose of calculating "one year's wages" under Wis. Stat. § 102.35(3). (5)  This is because Wis. Stat. § 102.25(3), unlike other statutes dealing with setting out a one year's wage payment, (6)  does not specify the wages should be expanded to a 50-week base in case of seasonal employment by cross-referring back to Wis. Stat. § 102.11(1).

To put it plainly, the ALJ's award does not undercompensate the applicant. The employer's witness offered enough testimony to indicate seasonal layoffs were the rule with the employer. However, the duration of the seasonal layoff cannot be shown with certainty, and the employer does not ask the commission to reduce but instead to affirm the ALJ's wage figure (see McCarty letter dated January 25, 2001). Therefore the commission declines to attempt to reduce the award to account for the seasonal nature of the applicant's job with the employer.

cc: Attorney Mark P. McGillis
Attorney William E. McCarty


Appealed to Circuit Court.

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Footnotes:

(1)( Back ) See for example: Ray Hutson Chevrolet v. LIRC, 186 Wis. 2d 118 (Ct. App. 1994).

(2)( Back ) Wis. Stat. § 102.35(3) provides in relevant part: "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...."

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

(4)( Back ) Dielectric Corp. v. LIRC, 111 Wis. 2d 270, 278 (Ct. App. 1982); West Bend v. LIRC, 149 Wis. 2d 110, 121, 123 (1989).

(5)( Back ) Randy Brungraber v. Joseph Parent H Inc, WC Claim no. 1997-058704 (LIRC, March 1, 2001) and cases cited therein.

(6)( Back ) See for example, Wis. Stat. § 102.56(1).


uploaded 2001/05/07