ANTHONY OVERMAN, Applicant

PAUL LENCKI, Employer

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.

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

Dated and mailed May 24, 2001
overman . wsd : 175 : 8  ND § 7.32

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

The employer asserted in his petition for commission review that he agreed that he disagreed with the administrative law judge's determination that the employer unreasonably refused to rehire the applicant pursuant to Wis. Stat. § 102.35(3). The employer does not point to any specific facts or findings by the administrative law judge that the employer believes were in error. The evidence indicates that the employer was unhappy that the applicant was injured at a time when he was very busy, and the employer's owner, Mr. Lencki, subsequently terminated the applicant without the benefit of a competent medical opinion that the injury would permanently prevent the applicant's return to work.

The evidence indicates that the applicant was injured at work on August 4, 1998, and was off of work for a few days and then returned to work until August 31, 1998, when he suffered a work-related low back injury. The applicant treated with Dr. Mitchell and was off of work until November 6, 1998, when Dr. Mitchell released the applicant to return to work without restrictions. The applicant returned to the employer with his release to return to work, and he was told by Mr. Lencki that he needed to contact the insurer first and then he would let the applicant know his status. Subsequently, Mr. Lencki sent the applicant a letter dated November 9, 1998, indicating that the applicant's former position had been filled.

However, the administrative law judge appropriately noted that in the past the employer had hired temporary employees or contracted out services during particularly busy times, and had temporarily hired his son-in-law for one week in the fall of 1998. The commission finds that the applicant has presented a prima facie case pursuant to Wis. Stat. § 102.35(3). It was not established that the applicant was discharged because he was not a good employee or because he had been sloughing off in his work. The applicant suffered a conceded work injury and there is no question about the validity for his need for treatment. Under these circumstances, the commission agrees with the administrative law judge that the employer unreasonably terminated the applicant during his healing period and failed to rehire the applicant pursuant to Wis. Stat. § 102.35(3). Therefore, the administrative law judge appropriately awarded the applicant $11,000.00 in lost wages, less attorney's fees of $2,200.00.

cc: 
Attorney Robert C. Menard
Paul Lencki

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