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

ROSS HILL, Applicant

CHILIS INC, Employer

WORKER'S COMPENSATION DECISION
Claim No. 2001-017165


The employer submitted a petition for commission review alleging error in the administrative law judge's Findings and Interlocutory Order issued in this matter on July 8, 2002, and amended on July 15, 2002. At issue are the amount of the applicant's average weekly wage, and whether or not the employer violated Wis. Stat. § 102.35(3), by terminating the applicant's employment.

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

MODIFIED FINDING OF FACT


Delete the first two paragraphs on page 12 of the administrative law judge's decision and substitute the following paragraphs therefor:

"A dispute remains with regard to the applicant's average weekly wage. The commission finds the written summary of weeks worked and wages earned submitted by the employer as Hearing Exhibit 8, impossible to understand with respect to the exact amounts earned in the specific weeks the applicant worked during his final period of employment with the employer. Accordingly, the employer should compute the number of weeks worked by the applicant during his final period of employment, and the wages earned in each of those weeks, to arrive at an average weekly wage. This computation should be submitted to the applicant for comparison with his calculations, and if agreement cannot be reached, opportunity for additional hearing regarding the wage issue shall be provided.

It must be noted that the penalty under Wis. Stat. § 102.35(3), which is not to exceed 'one year's wages,' is assessed based on a monetary rather than a temporal limit. Accordingly, the penalty accrues beginning with the discharge date and continuing until one year's wages have been lost, assuming that amount is lost within any reasonable period of time after the discharge. This is computed on a week-by-week basis with no penalty in weeks in which an applicant earns as much from new employment as he would have earned had he still been working for the employer. There is a pro rata deduction from the weekly penalty amount for weeks in which he earns an amount less than what he would have earned from the employer. The penalty has accrued in this case beginning with the discharge date, April 1, 2001, and will continue to accrue on a week-by-week basis until and unless a penalty amount equaling one year's wages has been paid."

All the rest of the administrative law judge's FINDINGS OF FACT are affirmed and reiterated as if set forth herein.

NOW, THEREFORE, this

INTERLOCUTORY ORDER

The Findings and Interlocutory Order of the administrative law judge are modified to conform with the foregoing, and as modified are affirmed. The employer is liable for the penalty under Wis. Stat. § 102.35(3). The matter is remanded to the department for opportunity for a new hearing with respect to the exact amount of the average weekly wage, and with respect to the monetary amount of the penalty currently due the applicant.

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

Dated and mailed November 21, 2002
hillros . wrr : 185 : 1 ND § 7.32  § 7.34

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

/s/ Laurie R. McCallum, Commissioner

MEMORANDUM OPINION

The commission agreed with the administrative law judge that the applicant and Jennifer Mahoney gave credible testimony with respect to Norman Bondoc's offer to give the applicant $50.00 if he would not report his thumb injury as a work injury. As the administrative law judge noted, the fact that the employer has a policy of deducting money from a manager's bonuses if a worker's compensation claim is filed on his/her shift, in conjunction with the fact that the applicant was aware of this policy, leads to the credible inference that the applicant became aware of the policy because Bondoc made the offer to him on March 28, 2001.

In addition, both Bondoc and Jack Maher failed to give credible testimony concerning the reason they discharged the applicant. Both men essentially professed ignorance of the important circumstances surrounding the applicant's decision to sit at the employer's bar after he was released from work on March 30, 2001. This included the fact that the applicant's immediate supervisor had released him from work because the applicant was in significant pain, the fact that the applicant was sitting at the bar to wait for his girlfriend who was a co-worker and with whom he commuted to and from work, and the fact that he was only at the bar for 20 minutes. By their own admissions, Maher and Bondoc were unaware of these significant details and made no realistic investigation into what had actually occurred on the date in question. Rather, they allegedly chose to discharge the applicant simply because a co-worker had complained that the applicant had gone to the bar after leaving his work duties early, and because this allegedly created a "negative perception" in the minds of the employees who were still working. By their own testimonies, Bondoc and Maher established that they did not have reasonable cause to discharge the applicant.

The employer's argument that the unreasonable refusal to rehire claim should be dismissed because the applicant allegedly threatened Bondoc and vandalized his vehicle approximately two weeks after the administrative law judge's decision had been issued, is summarily dismissed. There is no authority in Chapter 102 of the statues, or in the case law, for the proposition that an individual's behavior after the unreasonable refusal to rehire (discharge) may be relied upon to negate an employer's violation of Wis. Stat. § 102.35(3). The employer's reference to the "aggressor defense" (1)  is misplaced. Under that defense, an employee is not covered for worker's compensation purposes when he acts as an aggressor, and thus steps out of the course of his employment. However, the applicant was no longer employed at the time he allegedly made the threats and committed the vandalism. The employer's reference to the National Labor Relations Board and Title VII decisions, involving cases where actual reinstatement to the employment was a remedy, are inapplicable to this worker's compensation proceeding under Wis. Stat. § 102.35(3), where a monetary penalty is the only remedy available. If the applicant is guilty of the actions alleged by the employer, Bondoc, and perhaps the employer, have other civil law remedies. Criminal statutes might also be applicable.

cc: 
Attorney Aaron N. Halstead
Attorney Edward A. Corcoran


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Footnotes:

(1)( Back ) See Vollmer v. Industrial Commission, 254 Wis. 162, 35 N.W.2d 304 (1948). 

 


uploaded 2002/12/13