STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

MICHAEL J PERCIFIELD, Applicant

MIDLAND PLASTICS INC, Employer

WORKER'S COMPENSATION DECISION
Claim No. 91064268

Pursuant to the timely petition for review filed by the employer in the above-captioned matter, the commission has considered the petition and all relief requested. The commission has reviewed the applicable records and evidence and finds that the administrative law judge's findings and order are supported thereby. The commission therefore adopts the findings and order of the administrative law judge as its own.

NOW, THEREFORE, the Labor and Industry Review Commission does

ORDER

That the findings and order of the administrative law judge are hereby affirmed.

Dated and mailed at Madison, WI October 31, 1994.
ND § 7.29

Pamela I. Anderson, Chairman

Richard T. Kreul, Commissioner

James R. Meier, Commissioner

MEMORANDUM OPINION

According to the applicant's testimony at the hearing, he had obtained prior authorization from his foreman to be off work on February 7 because of a doctor's appointment. The applicant introduced a return to work slip from the doctor's office manager dated February 7 to verify a visit on that date. He contends he called the employer's business on February 7 to inform his supervisor of the results of the visit, but was transferred to the materials manager (a higher-up), Daniel Pitterle, who fired him. The foreman, Scott Schaefer, did not testify at the hearing.

In its petition for commission review, the employer contends that it was well within its rights to discharge the applicant and that the administrative law judge incorrectly concluded the applicant's absence on February 7, 1992, was excused. The employer contends that it was incredible that the applicant would have taken a day of his own vacation to visit a doctor, and noted that the applicant had no vacation time left anyway.

This, of course, assumes that the applicant meant he was taking an official vacation day with pay for February 7. The applicant's testimony could be construed to mean he simply wanted time off work for the doctor's appointment with advance notice, as opposed to calling in sick as he had the previous two days. The fact he may have no formal no vacation time left does not mean the commission must reject the applicant's testimony that his foreman authorized a day off to seek medical treatment in advance.

The employer also argues it had good cause to discharge the applicant for poor attendance, regardless of the February 7 absence. It cites two arbitrator's decisions apparently finding good cause for discharges due to excessive illness over extended periods of time.

The rule in unreasonable refusal to rehire cases under sec. 102.35, Stats., is that:

"After an employe 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."

West Bend v. LIRC, 149 Wis. 2d 110, 123 (1989) and Dielectric Corp. v. LIRC, 111 Wis. 2d 270, 278 (Ct. App., 1993). A discharge after a work injury may serve as the basis for an unreasonable refusal to rehire claim. Dielectric, at 111 Wis. 2d 278. It is equally clear that a poor attendance record may provide reasonable cause for a discharge, thus eliminating liability under sec. 102.35, Stats. Dielectric, at 111 Wis. 2d 279. However, the employer must still show the discharge was for a reasonable cause, not simply one unrelated to worker's compensation.

In this case, it appears that most of the applicant's attendance problems arose after his absence for a work injury in September and October 1991. The applicant testified some of the attendance problems arose because of adverse effects from medication. The record contains credible evidence to the effect that the final absence after which the applicant was discharged was excused in advance. Under these circumstances the commission agrees with the administrative law judge that the employer has not met its burden of showing a reasonable basis for discharging the applicant.

cc: ATTORNEY MICHAEL W FLEMING
MICHAEL W FLEMING SC

ATTORNEY RONALD S STADLER
SCHOBER AND RADTKE

Appealed to Circuit Court. Affirmed November 20, 1995.

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