JEANETTE A GOETSCH, Applicant

FORT JAMES OPERATING COMPANY, Employer

Fort James Operating Company (hereinafter employer) submitted a petition for commission review alleging error in the administrative law judge's Findings and Interlocutory Order issued in this matter on January 12, 2001. The applicant submitted an answer and briefs were submitted by the parties. At issue with regard to this claim for unreasonable refusal to rehire under Wis. Stat. § 102.35(3), are: (1) whether the commission has the authority in this case to find a violation of Wis. Stat. § 102.35(3); (2) whether federal preemption applies to the claim; and (3) whether the applicant has demonstrated that a statutory unreasonable refusal to rehire took place on or about July 16, 1999.

The commission has carefully reviewed the entire record in this matter, and after consultation with the administrative law judge regarding the credibility and demeanor of the witnesses, hereby reverses her Findings and Interlocutory Order. The commission makes the following:

The applicant worked for approximately 15 years as a laborer for the employer, a paper mill. She filed an application for hearing on June 23, 1997, alleging a herniated cervical disc and bilateral carpal tunnel syndrome attributable to repetitive heavy work.

The applicant asserted that on Friday, September 20, 1996, she was working in the roll tray department operating machines which made cartons. The applicant would take stacks of these cartons from the machines, bag them, twist the bags shut, and place the bags in a box. When the boxes were full she would lift them onto pallets. The cartons were of different weights, but the average weight of the boxes was about 40 lbs. The applicant further asserted that on September 20, 1996, she tried to pick up two boxes, each weighing about 30 lbs., and at that moment felt a sharp pain in her neck. She stopped for a minute and rubbed her neck, and the pain went away. She finished her shift and felt okay that night, although she took two Advil for general stiffness and soreness.

The applicant asserted that when she awoke the next morning (Saturday) her neck was so stiff she could not move it. It did not get any better so on Monday, September 23, 1996, she went to see Dr. Tim Jessick. She told Dr. Jessick that she had a two-day history of neck pain which she had awakened with, and denied any trauma or injury. She made no mention of lifting at work. Dr. Jessick diagnosed a neck strain and prescribed medications. The applicant was released for work with restrictions on September 30, 1996.

On January 9, 1997, the applicant returned to the clinic and complained of constant numbness in her fingers, worse on the right. She underwent nerve conduction studies which revealed bilateral carpal tunnel syndrome. On September 17, 1997, Dr. G. R. Tanner saw the applicant and diagnosed carpal tunnel syndrome together with right arm pain. He suspected the right arm pain was either cervical pain or shoulder girdle muscle pain.

On February 13, 1997, the applicant was referred to Dr. G. A. Spurgeon for evaluation of right-sided neck pain, right arm pain, and right hand numbness. She told Dr. Spurgeon that she had been experiencing pain in the right trapezius for about three months. Dr. Spurgeon ordered a cervical MRI which showed significant degenerative disc disease. Specifically, there were disc protrusions and bone spurs at C5-6 and C6-7. On February 27, 1997, Dr. Spurgeon diagnosed a herniated disc at C5-6, and also "some disc protrusion" at C6-7. He also diagnosed very mild carpal tunnel syndrome and overuse syndrome with tendinitis of the right arm. He opined that the overuse syndrome and perhaps the carpal tunnel syndrome were work-related, but that: "I don't know that we can state her neck disease is related to her work."

The applicant testified that after learning of the results of her cervical MRI, she concluded that her cervical condition was caused by her work exposure, particularly the alleged incident of September 20, 1996. Prior to that time she had attributed all her symptoms to the carpal tunnel syndrome.

On February 28, 1997, Dr. Mark Weissman saw the applicant for surgical evaluation. She told Dr. Weissman that she was injured at work when loading pallets in "October/November" of 1996. Dr. Weissman performed a C5-6 discectomy and fusion on March 12, 1997. He completed a WC-16B on June 9, 1998, in which he checked the "occupational disease" causation box, citing the applicant's repetitive heavy work.

Hearings were held on June 23, 1998, and again on June 14, 1999, before an administrative law judge (ALJ). On July 9, 1999, the ALJ issued a decision in which she found that the applicant had sustained bilateral carpal tunnel syndrome from her work activities, with the date of injury being January 17, 1997. However, the ALJ dismissed the claim for a cervical disc injury, citing discrepancies in the applicant's evidence.

The ALJ noted that the employer had produced production records verifying that the applicant had not worked in the roll tray department on September 20, 1996, but on different machines in the blank tray department. Also, in her visit to Dr. Jessick on September 23, 1996, the applicant made no mention of a work incident or her job duties. The ALJ also made reference to a file note from the employer's nurse dated October 4, 1996, which stated that the applicant had gone home that day with neck pain from a strain at home the prior week.

On July 16, 1999, seven days after the ALJ's decision, the employer terminated the applicant for allegedly falsely claiming a neck injury. The applicant had been working under the terms of a "Last Chance Agreement" dated October 23, 1998, which called for her termination if she violated any personal conduct rule within 18 months of the agreement. The "Last Chance Agreement" was the result of a reprimand for the applicant's dishonest assertion that she had been forced to work for four straight hours without a break. A videotape showed that she had taken cigarette breaks outside during these four hours.

THE COMMISSION'S AUTHORITY IN THIS CASE

The employer asserts that the department and the commission have no authority in this case to find a violation of Wis. Stat. § 102.35(3). The employer asserts that the applicant's claim is based on an allegation that it unreasonably discharged her for falsifying a claim for a work-related neck injury, but that it has been previously determined by the department that no work-related neck injury occurred. The argument continues that in order to recover under Wis. Stat. § 102.35(3), there must be a causal nexus between a work injury and the unreasonable refusal to rehire (in this case the unreasonable refusal to rehire was a discharge). However, as stated in Dielectric Corp. v. LIRC, 111 Wis.2d 270, 278, 330 N.W.2d 606 (1983):

Under this new statute, once the employee has suffered a worker's compensation injury, the question initially becomes: does the employer have good cause not to rehire. If the employee is rehired, the rehiring cannot be a pro forma rehiring. Therefore, if there is an eventual discharge, the employer must show that there is no bad faith on its part to evade this statute and that the rehired employee was discharged with good cause.

The applicant in this case was found to have sustained a work-related carpal tunnel syndrome injury, and this injury was one of those listed in her application for hearing under Wis. Stat. § 102.35(3). The applicant claimed that her carpal tunnel syndrome injury occurred during the same time frame as her alleged neck injury, thus raising a valid legal issue under the statute. The applicant was an employee of the employer who sustained a compensable work injury and was subsequently discharged by the employer. Accordingly, the employer has the burden of demonstrating that it had reasonable cause for this discharge. If it cannot carry that evidentiary burden a violation of the statute must be found, even though it alleges that the discharge was due to a neck injury claim which the department denied. The statute does not require that a causal nexus be shown between the unreasonable refusal to rehire (discharge) and a particular work injury.

FEDERAL PREEMPTION

As the administrative law judge very capably explained in her findings, a state law claim such as the one brought here under Wis. Stat. § 102.35(3), is subject to federal preemption only when the state law claim cannot be resolved without interpreting the applicable collective bargaining agreement. Lingle v. Norge Div. Of Magic Chef, Inc., 486 US 399, 403, 108 S. Ct. 1877 (1988); Miller Brewing Company v. DILHR, 210 Wis. 2d 26, 38-39, 563 N.W.2d 460 (1997).

In the petition, the employer continues to argue that the collective bargaining agreement between itself and the applicant's union had to have been interpreted by the administrative law judge in order for her to have determined whether the applicant was guilty of "falsely claiming injury," as that phrase is found in the collective bargaining agreement. The employer argues that interpretation of that phrase was needed because the applicant allegedly made a false claim of an injury occurring on a specific date, while the administrative law judge looked to " . . . the totality of Ms. Goetsch's presentation and not her falsly claiming an incident of injury on one specific date." The administrative law judge made a factual determination concerning the factual issue of whether or not the applicant deliberately attempted to falsely claim a work injury. After articulating a review of the facts as she found them, the administrative law judge determined that it had not been a false claim because she believed the applicant had mistakenly recalled the wrong date for the alleged work incident. This was a factual inference based on review of the evidence, and it did not require any interpretation of what "falsely claiming injury" means under the collective bargaining agreement. There is no ambiguity inherent in the question of what it means to falsely claim that a specific work injury occurred. The applicant's claim under Wis. Stat. § 102.35(3), is not subject to federal preemption.

APPLICATION OF WIS. STAT. § 102.35(3)

In her credibility conference with the commission, the administrative law judge indicated that she believed the applicant "got off track" with her testimony concerning the alleged work incident of September 20, 1996, because her claim was actually for an occupational disease injury, rather than for an acute injury involving only one incident. The administrative law judge inferred that it was probable that the applicant had experienced an incident or incidents like the one she described as occurring on September 20, 1996, but at some other time or times during the course of her employment with the employer. She concluded that the applicant's testimony that the incident occurred on September 20, 1996, was clearly inaccurate, but that this was explained by the fact that the applicant is a very poor historian with a poor memory. The administrative law judge also accepted the applicant's assertion that she initially believed all her symptoms were part of her carpal tunnel syndrome.

However, at the hearings held on June 23, 1998, and June 14, 1999, the applicant gave detailed testimony concerning the alleged incident of September 20, 1996, and its immediate aftermath. She recalled the specific machines she was allegedly working with in the roll tray department on that date; that she allegedly felt a sharp pain in her neck while lifting but that it "seemed to be all right" after she rubbed it; that she allegedly woke up Saturday morning September 21, 1996, with neck pain so severe she couldn't move her head; and that since the pain allegedly did not subside she went to see Dr. Jessick on Monday, September 23, 1996. The employer presented credible evidence in the form of production records demonstrating that the applicant did not work in the roll tray department on September 20, 1996, and that the machines she alleged she was working with were not even operating on that day, rendering her description of the incident incredible. The commission inferred that the detailed and specific recall which the applicant initially professed concerning the alleged incident of September 20, 1996, cannot be credibly explained by concluding that she was simply remembering an incident which occurred on an entirely different date. The applicant remembered going to see Dr. Jessick on the Monday after the alleged incident, and that medical visit is documented by Dr. Jessick's clinic note dated Monday, September 23, 1996. His clinic note also documents that she told him she woke up "the previous morning" with neck pain, and denied any history of trauma or injury. The neck pain was described as "without radiation" and no mention was made of arm or wrist symptoms, nor did Dr. Jessick mention anything about carpal tunnel syndrome. The applicant also completed an application for sickness and accident benefits on September 30, 1996, for the period of September 23, 1996 through September 30, 1996. She indicated on the application that the claim was for neck strain not related to her employment.

This evidence leads to the inference that the applicant did experience neck discomfort unrelated to her employment beginning on September 21 or 22, 1996, and continuing through the following week. The applicant specifically testified at the hearing held on June 23, 1998 (Tr., pp. 37, 51), that her neck had not been sore before the alleged incident of September 20, 1996, but that it " . . . was sore from that time on." It is not credible that the applicant could subsequently have confused this specific and well-documented episode with a work incident occurring on a different date. Certainly, these facts gave the employer substantial reason to believe that the applicant had deliberately attempted to claim that a work injury occurred on September 20, 1996, which she knew had not occurred. Thus, the employer had reasonable cause for discharging her on July 16, 1999.

NOW, THEREFORE, this

The Findings and Interlocutory Order of the administrative law judge are reversed. The application for unreasonable refusal to rehire under Wis. Stat. § 102.35(3), is dismissed.

Dated and mailed February 27, 2002
goetsje . wrr : 185 : 1  ND § 7.27  § 7.32 

/s/ David B. Falstad, Chairman

James A. Rutkowski, Commissioner

/s/ Laurie R. McCallum, Commissioner

The commission would also note that in her decision, the administrative law judge expressed concern over the potentially chilling effect a decision against the applicant's claim could have on the right of an employees to pursue claims under the Worker's Compensation Act.

No individual who believes he/she may have a compensable claim under the Act should hesitate to pursue such claim. The department and the commission examine the facts and apply the law surrounding each claim on an individual basis. The fact that the commission's review of this particular claim under Wis. Stat. § 102.35(3), led to its dismissal, should have no chilling effect on any individual who legitimately believes he/she has a compensable claim of any kind. On July 9, 1999, the department found that the applicant had not sustained a work-related neck injury. It was partly as a result of this determination that the employer decided to discharge the applicant for falsifying a worker's compensation claim. If it had been credibly demonstrated that a retaliatory motive, rather than reasonable cause, had motivated this discharge, the commission would have assessed the appropriate penalty under Wis. Stat. § 102.35(3). However, no such credible showing was made. The commission is confident that all parties recognize that each worker's compensation case must be decided based on the facts and circumstances of that particular case.

cc: 
Attorney Robert H Zilske
Attorney John R. Jokela

[ Search Decisions ] - [ WC Legal Resources ] - [ LIRC Home Page ]

uploaded 2002/03/04