SEAN HESCHER, Applicant

MCDONALD LUMBER CO INC, Employer

In February 2001, the applicant filed an application for hearing seeking payment under Wis. Stat. § 102.35(3) for an unreasonable refusal to rehire following a work injury. The employer filed an answer denying that the accident or occupational exposure actually occurred when alleged, that the applicant was performing services growing out of and incidental to his employment when injured, and that the accident or disease causing injury arose out of employment.

An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development heard this matter on November 14 and December 17, 2001. On January 8, 2002, the ALJ issued a decision awarding payment under Wis. Stat. § 102.35(3). The employer filed a timely petition for review.

The commission has considered the petition and the positions of the parties, reviewed the evidence submitted to the ALJ, and consulted with the ALJ concerning witness credibility and demeanor. Based on its review, the commission makes the following:

The applicant was born in 1969. He began working for the employer, a real estate development company, in June 2000. When he started working, the applicant primarily drove a dump truck, cleared land, and put up silt fencing to hold back run-off. The dump truck, he testified, was in bad condition so that the ride was constantly jarring. As a result, he would from time to time go home with a sore back.

On August 30, 2000, the applicant hurt his knee at work. He saw a doctor who kept him off work for three days, during which the employer paid him. Upon his return to work, he did odd jobs, including work on a warehouse, and drove the dump truck.

At the hearing, the applicant testified that during the week of October 2, 2000, the applicant's back became particularly sore from bouncing around in the dump truck. By Thursday and Friday, it was quite sore, though the applicant did not report anything hoping it would get better over the weekend. On Saturday, he picked up a relative for a family gathering around noon, noticing at that time that his back was real sore. By two o'clock, he could hardly walk.

The next day, on Sunday, October 8, the applicant sought treatment at a hospital emergency room. The triage nurse's note for this visit is at exhibit 1. The applicant's chief complaint was back pain radiating down the right leg. The note mentions stiffness the prior day at 11:00 a.m., with worse pain and tingling in the right leg on Sunday. Another nurse took substantially the same history with an onset of pain at 11:00 a.m. while sitting in a chair. She noted, too, that he was ambulating with difficulty.

The emergency room doctor's typewritten note states that the applicant had been going about his normal activity without restriction until October 7, 2000 (Saturday), when he woke up with back pain in the lower lumbar area. The pain got progressively worse, and began radiating into both legs, causing the applicant to seek medical treatment. The applicant rated the pain at 10 of 10.

Upon examination, the emergency room doctor saw no evidence of a neurological deficit. He thought the problem was likely a strain, but could be radiculopathy. He recommended narcotics and a muscle relaxer, and suggested follow-up with his regular doctor.

At the hearing, the applicant admitted that he did not tell the emergency room personnel about onset of symptoms while at work, but indicated it was because he was worried about losing his job.

The applicant next saw Alan Finesilver, M.D., on October 9, 2000. The note for this visit is at exhibit A. Dr. Finesilver reported that the applicant was basically well until two days earlier, when he noted the acute onset of right lumbar pain radiating toward the right lower quadrant of the abdomen and lateral aspect of the right thigh. The doctor reported no history of acute trauma such as lifting or a fall, though he noted a prior back injury in a motor vehicle accident years ago.

At the hearing, the applicant first testified that he told Dr. Finesilver that his pain began on Saturday, October 7, 2000, rather than earlier in the week. November 2001 transcript, page 41. However, the applicant also testified that, while it does not appear in the doctor's note, the applicant told Dr. Finesilver that he had been getting jarred around in a truck and that started his pain. November 2001 transcript, page 42. The applicant explained that he was worried that that would reflect adversely on his job, and asked Dr. Finesilver not to mention work. November 2001 transcript, page 42-43. The applicant suggests that, in deference to his concerns, Dr. Finesilver did not note the possible work connection in his notes.

In any event, Dr. Finesilver's diagnostic impression was lumbar sprain and possible low-grade radiculopathy. The doctor permitted a return to work on October 10, 2000, with no heavy lifting until October 16, when he could return without restriction.

A lumbar MRI was done the next day. It showed disc desiccation at L3-4, L4-5 and L5-S1, with mild disc height loss at L4-5 and L5-S1. There was no evidence of disc herniation or stenosis. As part of the MRI screening, the applicant reported that his back pain had started on Saturday, October 7. He complained of numbness in his right leg, and noted left leg problems two years earlier.

The applicant was able to work for a couple of hours on Tuesday, October 10, before his back became too sore to continue. He was unable to work on Wednesday, October 11, and called into the employer to report he could not work. Indeed, the applicant was not able to work again until Tuesday, October 17.

The next day, Wednesday, October 18, he was given side jobs because his back was sore. He later worked putting up a silt fence. He returned to dump truck driving the next week, but did the job in pain.

On Friday, October 27, 2000, the applicant worked about three hours before he got a flat on his dump truck. He reported the flat to the employer, and was told someone would help, but meanwhile to try to fix it himself. The applicant testified that, as he tried to push the jack under the truck, the right side of his back "popped."

The applicant testified that he told the office secretary, Al, about the injury with the tire jack, though she wrote a note for his employment file which indicates that his back was sore after therapy on October 26. The applicant denies making that statement to her. Al told the applicant to go home.

The employer's mechanic, Lawrence Frank, saw the applicant on October 27, the day the applicant claims he hurt his back changing the tire. Mr. Frank first saw the applicant in the employer's office where he looked like he was in severe pain. As noted above, the applicant was sent home, but the muffler fell off his car on the way. Frank, who was en route to pick up a part, saw the applicant walking down the street in a normal manner -- evidently to retrieve the muffler -- only 15 minutes after the applicant had appeared to be in severe pain in the employer's office. December 2001 transcript, page 21.

The applicant did not work on Monday, October 30, because his back was still very sore. He did work on Tuesday, October 31, and was told at that time that he had been fired. 

The first mention of a work connection with the applicant's back complaints occurs in Dr. Finesilver's note following treatment on November 9, 2000. The November treatment note reported the doctor had seen the applicant on October 9, 2000, two days after he had sustained a work related sprain in the right lumbar area. The doctor noted the MRI showed degenerative changes, but nothing surgically treatable, and the applicant did well with physical therapy and analgesics. The doctor, too, noted a mild re-injury on October 27, 2000, and stated his impression of a resolving lumbar sprain.

Wisconsin Stat. § 102.35(3), provides as follows:

"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...."

The supreme court and court of appeals have held that Wis. Stat. § 102.35(3) "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 show 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 specifically 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 this case, the applicant has not made a prima facie case by showing that he sustained an injury arising out of employment. On this point, the commission notes: (a) the inconsistencies in the record about whether the applicant's back pain started at work in the week of October 2, or at home over the following weekend, (b) the fact that the initial reports to the doctors do not mention any work connection, but rather work is first mentioned in Dr. Finesilver's November 2000 report after the discharge, and (c) Mr. Frank's testimony about the applicant's change in appearance on October 27, 2000. The sum of these leaves the commission with legitimate doubt as to whether the applicant -- who bears the burden of proof on this issue -- sustained an injury arising out of his employment with the employer.

NOW, THEREFORE, the Labor and Industry Review Commission makes this

The findings and order of the administrative law judge are reversed. The application is dismissed.

Dated and mailed November 7, 2002
hescher . wrr : 101 : 8   ND § 7.25  § 7.28   § 7.30 

/s/ David B. Falstad, Chairman

James A. Rutkowski, Commissioner

/s/ Laurie R. McCallum, Commissioner

The commission consulted with the presiding ALJ concerning witness credibility and demeanor. She indicated that while she found the employer's witnesses generally incredible, she credited Mr. Frank, except for his testimony that the employer's truck that the applicant drove-which was old-did not have problems.

On the other hand, the ALJ credited the applicant's testimony that he told a supervisor, "Willie," about his back injury from driving the dump truck, and the office secretary, "Al," about the tire-changing incident on the day it happened. She noted the employer called neither to testify to contradict the story (even though they had the chance in the second day of hearing.) The ALJ also credited the applicant's testimony that he reported the work injury to Dr. Finesilver during his first visit in October 2000, but asked him to not mention it because he was worried about being fired. In her decision, she noted that Finesilver also acts as an IME, accustomed to scrutinizing reports. Nonetheless, Finesilver unreservedly found a work injury in his post-discharge November 2000 report.

The ALJ acknowledged during the credibility conference, however, that the respondent might not have called Al and Willie because the applicant had the burden of proving an injury. The commission also notes that Dr. Finesilver does not mention that he kept the work-relatedness out of his first report at the applicant's request. Nor does the doctor otherwise explain why his initial history on October 9 indicates the applicant was basically well until the acute onset of lumbar pain on a Saturday while his November 1997 note reports the applicant had sustained a work related sprain.

The commission finally notes that the applicant had no qualms about reporting his first injury to his knee in August, and suffered no ill consequences as a result. While the ALJ suggested during the credibility conference that the applicant may have been more reluctant to report a second injury -- and one that involved an unscheduled part of the body -- the commission views this as yet another factor leading it to question the occurrence of a work injury in this case.

cc: 
Attorney Terence J. Bouressa
Attorney John A. Haase

Appealed to Circuit Court. Affirmed May 30, 2003.

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