PATRICIA ASHTON, Applicant

DISTRIBUTION SERVICES, Employer

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.

Dated and mailed January 30, 2003
ashtopa . wsd : 101 : 3  ND § 7.25 § 8.29 

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

The applicant seeks compensation under Wis. Stat. 102.35(3) for her discharge after returning to work following a work-related injury. 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...."

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. 1983). 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 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.

If an employer is claiming a worker cannot do his or her job because of the work injury, an employer must provide evidence showing to a reasonable degree of medical certainty that the worker cannot perform his or her old job or other available work. West Bend, supra, at 149 Wis. 2d 126. When an employer is not asserting that a worker is unable to return to work because the work injury has rendered him or her unable, reasonable cause for a discharge or failure to rehire must generally include an absence of motivation related to the fact that the employee sustained a work injury. Karen Sann v. Badger Care-A-Vans, WC claim no. 1997-028543 (September 13, 2000). For example, economic factors such as a seasonal slowdown thus are a valid defense to an unreasonable refusal to rehire claim. Ray Hutson Chevrolet v. LIRC, 186 Wis. 2d 118 (Ct. App. 1994).

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). In addition, the law applies even where a worker is fired only in part because of the work injury. Great Northern, at 189 Wis. 2d 318-19.

In this case, the applicant's discharge -- in addition to being the subject of a hearing under Wis. Stat. § 102.35 -- has been the subject of a hearing to determine the applicant's eligibility for unemployment insurance under Wis. Stat. ch. 108. With respect to findings in unemployment insurance cases, Wis. Stat. § 108.101 provides:

"108.101 Effect of finding, determination, decision or judgment. (1) No finding of fact or law, determination, decision or judgment made with respect to rights or liabilities under this chapter is admissible or binding in any action or administrative or judicial proceeding in law or in equity not arising under this chapter, unless the department is a party or has an interest in the action or proceeding because of the discharge of its duties under this chapter."

Citing the parallel language covering the effect of other proceedings on UI claims, the court of appeals has held that a worker's compensation decision does not bind an administrative hearing on an unemployment insurance claim or the commission reviewing it. Goetsch v. DWD, 2002 WI App 128, 11, 254 Wis. 2d 807, 814, 646 N.W.2d 389. Similarly, the commission has in the past declined to consider findings in unemployment insurance decisions in related workers compensation claims under Wis. Stat. § 102.35(3). Howard Gasper v. WisMarq Corporation, WC claim no. 94067858 (LIRC, February 24, 1998); Nemitz v. Provimi Veal Corp., WC claim no. 1996012793 (LIRC, January 11, 1999). See also: William Vollmer v. Henrich Industries, WC claim no. 1997001593 (LIRC, May 20, 1999). Of course, the commission may take administrative notice of a UI file, or consider it offered as evidence, so long as the parties have the chance to present rebuttal evidence. Amsoil, Inc. and Travelers Insurance Company v. LIRC and Silberg, 173 Wis. 2d 154, 496 N.W.2d 150 (Ct. App. 1992), (holding that LIRC erred in taking "administrative notice" without providing opportunity for hearing, but that the error was harmless because other evidence in the record supported the decision.)

Further, of course, the standards that are applied under Wis. Stat. § 108.04(5) and Wis. Stat. § 102.35(3) are different. Under the unemployment insurance statute, if the discharge was not for "misconduct," the worker is entitled to unemployment insurance compensation. Under Wis. Stat. § 102.35(3), if the discharge or refusal to rehire is not "reasonable," the employer is subject to what is tantamount to a penalty for back wages.

In this case, the applicant has shown she was an employee who was injured at work and subsequently discharged. She has thus made her prima facie case under Wis. Stat. § 102.35(3), and the employer has the burden of showing reasonable cause for the discharge.

To meet that burden, the employer offered evidence that the applicant was discharged because she had exceeded her medical restrictions upon returning to work, and because she used abusive and insubordinate language in a telephone conversation with the employer's general manager shortly before her discharge. The ALJ held that the employer's reliance on the work restrictions was a clumsy attempt by the employer to make its case look better. The ALJ thought that it was unlikely the trivial violation of the work restrictions by walking unaided on a few occasions had much to do with the discharge. The commission notes that, even considering Mr. Raasch's testimony at the unemployment insurance hearing, it is evident that the insubordinate outburst during the telephone conversation was what drove Mr. Raasch's decision to contact Ms. Richter about terminating the applicant's employment. Exhibit F, pages 17-18. In any event, the outburst on the telephone, in light of other disciplinary problems in the past, led the ALJ to conclude the discharge was reasonable.

The applicant's argument on appeal is essentially that -- whatever Mr. Raasch says at the workers compensation or unemployment insurance hearings -- the only reason the applicant was given when she was discharged was that she violated her restrictions while at work. The applicant continues that she did not violate the work restrictions, and that even if she did it does not justify a discharge. Given the liberal construction cited in Great Northern, it would seem unfair to use a trivial violation of work restrictions -- which is frequently in some sense subjective -- as a basis for a reasonable discharge within the meaning of Wis. Stat. § 102.35(3).

However, the commission, after carefully considering the record in this case, adopts the presiding ALJ's impression of witness credibility and demeanor of the witnesses at the hearing. Other than the attempt of Ms. Richter to base the discharge on the work restrictions, there really is no other evidence that the injury had anything to do with the discharge. The employer appeared willing to work with the applicant's restrictions to put her back to work. While the employer ironically tried to use the injury as a pretext to justify a performance and personality-based discharge that in fact had nothing to do with the applicant's injuries or temporary restrictions, that does not make the decision to terminate the applicant unreasonable. Indeed, the employer has met its burden of showing a reasonable cause for the discharge in this case, and so compensation under Wis. Stat. § 102.35(3) must be denied.

cc: 
Attorney Katherine L. Pleger
Attorney Thomas L. Schober

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