ANNETTE C CAPITILLO, Applicant

KOHLER CORPORATION, Employer

KOHLER CORPORATION, Insurer

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. Jurisdiction is reserved for such further findings and orders as may warranted.

Dated and mailed April 30, 2002
capitan . wsd : 185 : 8  ND § 7.32

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

/s/ Laurie R. McCallum, Commissioner

In the petition for commission review, the employer asserted that the "only reasonable conclusions" it could have come to after its investigation of this matter, were that the applicant had intentionally included Ms. Sanchez as a witness in her incident report, and that the applicant had discussed the matter with Ms. Sanchez before Ms. Sanchez completed her witness report. The commission disagrees and came to different conclusions.

Wis. Stat. § 102.35(3) requires "reasonable cause" for the failure to rehire (discharge) of an injured worker. The allocation of the burden of proof was reiterated in West Bend Company v. LIRC, 149 Wis. 2d 110, 123, 438 N.W.2d 823 (1989):

"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 applicant. Dielectric Corp. v LIRC, 111 Wis. 2d 270, 278, 330 N.W.2d 606 (Ct. App. 1983); West Allis School Dist. V. DIHLR, 116 Wis. 2d 410, 424, 425, 342 N.W.2d 415 (1984)."

Both the administrative law judge and the commission found credible the applicant's testimony that she made an inadvertent error when she listed Ms. Sanchez as one of the witnesses on her incident report. Mr. Schwantz and Ms. Toshner each indicated that they considered even "good faith errors" in completing an incident report to constitute grounds for termination. Neither Mr. Schwantz nor Ms. Toshner even alleged that the applicant deliberately falsified her incident report. Ms. Toshner testified that she telephoned the applicant and the applicant told her she had mistakenly put Ms. Sanchez' name on the report, because she was one of the individuals who generally went on break with her. Ms. Toshner indicated that she thereupon told the applicant she would be terminated, and within a day or two the applicant was terminated. There was no indication in the testimony or the exhibits that the employer conducted any investigation to determine whether the applicant had acted deliberately when she put Ms. Sanchez' name on the report. Nor was there any indication in the evidence that anyone asked Ms. Sanchez whether the applicant had talked to her about the incident or her report.

Reasonable cause for termination is not demonstrated by showing that an injured employee, who completed an incident report describing her injury, inadvertently included as a witness an individual who was not actually present at the incident. In the applicant's case, it is credible that her error was inadvertent because Ms. Sanchez normally did go on breaks with the applicant and others, and the applicant completed the incident report nine days after the accident when she was in considerable pain.

cc: 
Attorney Samuel Zelpe
Attorney Steven E. Westphal

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uploaded 2002/05/10