MICHAEL S. BUCHOLZ JR, Applicant

AIR FLOW INC, Employer

The employer submitted a petition for commission review alleging error in the administrative law judge's Findings and Order issued in this matter on November 27, 2000. The applicant submitted an answer to the petition and briefs were submitted by the parties. A compensable work injury was conceded as having occurred on September 25, 1997. At issue before the commission is whether the employer unreasonably refused to rehire the applicant, within the meaning of Wis. Stat. § 102.35 (3).

The commission has carefully reviewed the entire record in this matter and hereby affirms in part and reverses in part the administrative law judge's Findings and Order. The commission makes the following:

The applicant, whose birth date is November 23, 1968, was employed as an inside sales representative for the employer, a wholesaler of heating and ventilation equipment. On September 25, 1997, a heavy crate fell off a forklift and injured his chin, right elbow, and left knee. He saw Dr. Gwen Johnson on September 26, 1997, and she diagnosed contusions and abrasions of the chin and elbow, as well as a contusion of the knee. She prescribed ice for the knee, no strenuous weight bearing, and follow-up in 10-14 days if there was no improvement. She released the applicant to return to work with minor restrictions. The applicant continued to work but his knee continued to be painful, and the employer allowed him to leave during work hours for follow-up medical care.

On Tuesday, November 4, 1997, the applicant was examined by Dr. Johnson's colleague, Dr. Michael Miller. The applicant complained of continuing and increasing knee pain. Dr. Miller found no abnormalities in his clinical exam but prescribed a trial of crutches with a knee immobilizer, as well as an examination by an orthopedist. Dr. Miller completed a work status report on November 4, 1997, which released the applicant to work without restriction as of that same date. An appointment with an orthopedist was set up for Monday, November 10, 1997.

Before going to Dr. Miller on November 4, 1997, the applicant telephoned the employer's general manager, Thomas Gelin, and told him he was not coming into work because he was going to see the doctor for his knee. Gelin was displeased and told the applicant he should come to work, go see the doctor from there, and then come back to work. But the applicant did not come to work.

On Wednesday, November 5, 1997, the applicant telephoned Gelin and told him he wasn't coming to work because the vehicle he normally drove belonged to his roommate, and the roommate did not want it used because it was leased and they had exceeded the number of miles allowed on the lease. A manual transmission vehicle was available through the roommate's parents, but the applicant could not manipulate the clutch pedal with his immobilized knee. The applicant also indicated he was attempting to get the worker's compensation insurance carrier to pay for a rented car, but the insurer ultimately refused. Dr. Miller wrote on a prescription note dated November 5, 1997, that the applicant was unable to drive a stick shift motor vehicle due to his knee immobilization.

On Thursday, November 6, 1997, the applicant did not report to work nor did he telephone the employer to report his absence. On November 5, 1997, he had told Gelin that the insurer told him it would be better if he stayed home until he saw the orthopedic surgeon on Monday. Gelin responded to that news by telling him to call back when he thought he would be returning. The applicant was groggy and nauseous from the pain medication he was taking at this time. He also testified that he knew Dr. Miller had released him without restriction on November 4, 1997, and if a vehicle with automatic transmission had been available he could have "gutted it out" and gone to work.

In the applicant's unemployment insurance hearing held on January 5, 1998, he testified that had the vehicle with automatic transmission been available on November 5, 1997, he would have driven it to work, because the pain he was experiencing "wasn't enough" to keep him from work. He also testified that he had stopped taking his pain medication, which Dr. Johnson had prescribed, but due to increased pain he resumed taking it the night of November 5, 1997. He went on to testify that "the way my medication was going" on November 6 and November 7, he had no intention of going to work those days.

Also on November 6, 1997, Gelin contacted Dr. Miller and learned that he had released the applicant to work without restriction on November 4, 1997. Dr. Miller faxed a copy of the November 4 work status report to Gelin, who received it Friday morning, November 7, 1997. Gelin telephoned the applicant and asked him whether he was coming to work that day, and the applicant indicated that he was not. He told Gelin he was trying to buy a car. Gelin considered the applicant's absences and Dr. Miller's release, and later in the day decided to discharge him. He telephoned the applicant again and read to him from the Employee Handbook concerning attendance, informed him that he had a copy of Dr. Miller's release, and told him he was discharged for his absences.

The applicant saw the orthopedic surgeon, Dr. John Konkel, on Monday, November 10, 1997. Dr. Konkel prescribed conservative treatment and diagnosed anterior knee pain post-contusion with no evidence of structural injury. The applicant continued conservative treatment with Dr. Johnson and with another orthopedic surgeon, Dr. Paul Miller. Dr. Paul Miller ordered a MRI on March 20, 1998. This showed a small Baker's cyst with very small knee joint effusion, but no other abnormalities. Dr. Miller injected the knee and eventually released the applicant with no limitations effective June 22, 1998.

The applicant's roommate had telephoned Dr. Johnson on November 7, 1997, and informed her of the circumstances surrounding the applicant's discharge. In response, Dr. Johnson wrote a note dated November 7, 1997, which indicated that the applicant was unable to work due to the influence of his pain medication and inability to bear weight on his knee from November 5 through November 7. The applicant and his roommate went in to pick up the applicant's last paycheck from the employer on November 14, 1997, and brought with them this slip from Dr. Johnson. However, Gelin was not at the office when the applicant and his roommate came. They gave Dr. Johnson's slip to the office manager, Carol Dittman, who put it into the applicant's employment file. There is no testimony from Gelin as to when he first had knowledge of this excuse slip, but he at least knew about it by the time of the unemployment insurance hearing on January 5, 1998. Gelin never offered the applicant reemployment and the applicant did not ask for it. The applicant was unable to find new employment until late June or early July of 1999.

Gelin had reasonable cause to discharge the applicant on November 7, 1997, because he had seen a copy of Dr. Miller's written release allowing the applicant back to work without restriction as of November 4, 1997. He reasonably inferred from this release that the applicant had been dishonest concerning his medical condition, and the commission infers that this tipped the scale for Gelin in making up his mind to discharge the applicant. However, the question remains as to whether the employer had reasonable cause not to rehire the applicant after it was informed, through Dr. Johnson's excuse dated November 7, 1997, that the applicant had not been dishonest concerning his medical condition.

The applicant did have a legitimate medical reason for not reporting to work on November 6 and November 7, 1997. While he probably could have and should have reported to work on November 4 and November 5, 1997, there were mitigating factors for those absences. The applicant's knee pain was increasing on November 4, 1997, and he saw Dr. Miller and was fitted with a knee immobilizer on that day. The immobilizer prevented him from driving the only vehicle available to him to get to work on November 5, 1997. Standing alone, the applicant's failure to secure transportation would not excuse his absences on November 4 or November 5, 1997, because employees are generally expected to provide their own transportation to work. However, the applicant was dealing with a medical problem which restricted his ability to obtain transportation.

Of greater importance, the reasonable inference is that Gelin would not have discharged the applicant merely for missing work on November 4 and/or November 5, 1997, because Gelin had spoken with the applicant on both of these days, and he knew the reasons the applicant was not coming to work on each of them. On November 5, 1997, the applicant had informed Gelin that aside from the transportation problem, the worker's compensation insurer had told him it would be better if he stayed home until the orthopedic surgeon saw him on November 10, 1997. At that time, Gelin made no objection to this arrangement. It was only after he decided to check on the applicant with Dr. Miller on November 6, 1997, that he obtained information which led him to incorrectly infer that the applicant was being dishonest. At a minimum, Gelin or someone else from the employer should have investigated the entire circumstance after the employer was provided with Dr. Johnson's excuse dated November 7, 1997. The applicant could also have been more aggressive in attempting to reclaim his lost employment, but he had been terminated, and terminated employees are not required to report to work to recover under Wis. Stat. § 102.35 (3). L & H Wrecking Company, Inc. v. Industrial Commission, 114 Wis. 2nd 504, 510, 339 N.W.2d 344 (Court of Appeals 1983).

Considering all these circumstances, the employer failed to show reasonable cause for not rehiring the applicant after it had received Dr. Johnson's excuse on November 14, 1997.

Dr. Konkel released the applicant for normal duties as of December 8, 1997, but Dr. Johnson recommended rest when she saw him for an aggravation of his knee condition on February 20, 1998. Dr. Paul Miller was treating the applicant during this time, and he did not release him to unrestricted work until June 22, 1998. The employer went out of business on February 28, 1999. Accordingly, the applicant lost employment and wages from the employer from December 8, 1997, to February 20, 1998, and again from June 22, 1998, to February 28, 1999. These two periods of lost wages total 35 weeks, which defines the applicant's recovery under Wis. Stat. § 102.35 (3). The applicant's weekly wage was $547.82, resulting in an amount due of $19,173.70. A 20 percent attorney's fee and $59.66 in costs will be subtracted from this amount.

Within 30 days from this date, Air Flow, Inc. shall pay to the applicant the amount of Fifteen thousand two hundred seventy-nine dollars and thirty cents ($15,279.30); and to Shneidman, Hawks & Ehlke, S.C., fees in the amount of Three thousand eight hundred thirty-four dollars and seventy-four cents ($3,834.74), and costs in the amount of Fifty-nine dollars and sixty-six cents ($59.66).

Dated and mailed July 25, 2001
buchomi . wrr : 185 : 3  ND § 7.32 

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

cc: 
Shneidman, Hawks & Ehlke, S.C. (Attorney Daniel Schoshinski)
Attorney Gordon K. Aaron

Appealed to circuit court.

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