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

RENEE A BORTH, Applicant

GORDON ALUMINUM INDUSTRIES INC, Employer

WAUSAU UNDERWRITERS INS CO, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 1996-016084

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 by the employer.

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.

ORDER

The findings and order of the administrative law judge are affirmed.

Dated and mailed June 25, 2003
borthre . wsd : 175 : 2   ND § 7.25   § 7.32 

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION


The employer asserts in its petition for commission review that the administrative law judge erred in determining the employer violated Wis. Stat. § 102.35(3) and unreasonably refused to rehire the applicant when it terminated her employment in December 1998. The employer states the applicant was employed by the employer for over two and one-half years following her injury, and the evidence shows that the applicant was terminated for repeated and documented violation of the employer's attendance policy. The evidence indicates the applicant suffered a work-related left thumb injury on March 12, 1996 and underwent several surgeries and received 50 percent permanent partial disability at the thumb as a result of her work injury. The applicant returned to work for the employer on light duty, one-handed work in 1997, and continued to work until she was terminated in December 1998.

The applicant was discharged under the employer's new attendance policy which was instituted in November 1998 as part of its union agreement. The attendance policy provided that effective November 2, 1998, an employee who obtains eight occurrences of absences in one year would be subject to termination. In order to be considered as an excused absence under the new policy the absence must be for vacation, death in the immediate family, funeral leave, national guard duty, jury duty, provisions of the State of Wisconsin family leave act, and pre-approved leaves of absence. The new attendance policy does not provide that absences for treatment for a work-related injury is an excused absence. The policy also provided that an employee will no longer have to turn in a physician's excuse for a one-day illness because it will not be an excused absence, and will be counted as an occurrence.

The applicant testified she had undergone a pain management injection in her neck in December 1998 to relieve the pain she was suffering from her work-related thumb injury and had an adverse reaction and could not breathe afterwards. The medical notes on December 10, 1998, reveal the applicant was seen for lung problems at that time which corroborates testimony. The applicant testified that on November 28, 1998 through December 22, 1998 at no time did she miss any work due to anything other than treatment for her work-related thumb injury and doctor's appointments for such treatments. The applicant testified that in each instance she called the employer to let the employer know the reason for her absence and she gave the employer a physician's statement every time she went to see her physician during that period of time.

The applicant admitted on cross-examination that she knew she needed to give the employer advance notice of her reasons for absences but if it was an emergency situation, and she could get in to see her physician on the same day, she did not have time to let the employer know ahead of time about the appointment. Mr. Mahler, the employer's human relations manager, admitted that based on the applicant's records some of the applicant's absences between November 2, 1998 and December 22, 1998 when she was terminated were due to her work injury and she did notify the employer.

The medical records submitted into evidence do not include treatment notes for each of the dates of absences used as a basis to discharge the applicant. However, the treatment notes contained in the record reflect the applicant had ongoing treatment and sporadic surgeries on her left thumb throughout the period from 1997 to August 1999. The applicant's treatment notes on December 15, 1998 reflect the need for chest x-rays which is consistent with the evidence that she suffered a collapsed lung as a result of a pain injection on December 8, 1998. Ms. Guillaume, a representative of the employer's insurer, stated in a letter to the applicant on April 29, 1999, that her ongoing complaints of left-thumb problems are related to the crush injury of March 12, 1996, and that based on the employer's physician, Dr. Gmeiner, the applicant reached a healing plateau from her work injury as of February 16, 1999. The applicant's treating physician, Dr. Dzwierzynski, indicated in a report dated April 27, 1999, the applicant has an additional 15 percent permanent partial disability due to a fusion of the left thumb, and she was under temporary partial disability from March 6, 1998 to March 30, 1999.

The employer's records also reflect that on at least three occasions which were used to substantiate the applicant's discharge the reason given was the that applicant needed treatment for her work-related thumb injury. Under Wis. Stat. § 102.35(3) an employer is liable for one year's lost wages if the employer unreasonably refuses to rehire an applicant subsequent to work injury. In this case the applicant was rehired but subsequently terminated and the law is clear that the penalty provision applies to such situations in which an applicant is subsequently terminated following being rehired by the employer. The termination must be for reasonable cause and in good faith.

In a very similar case involving the termination of injured employees, the Wisconsin Court of Appeals held in Great Northern Corporation v. LIRC, 189 Wis. 2d 313 (November 1994), that the statute providing for a penalty for unreasonable refusal to rehire must be liberally construed to effectuate its significant purpose of preventing discrimination against employees who have sustained compensable work-related injuries. In the Great Northern case two employees were discharged by the employer following work injuries and having been rehired. The employees in the Great Northern case were discharged according to the employer's attendance policy dictating that an employee receiving nine occurrences within a 12-month period would be subject to termination, and the policy did not provide for an excused absence for treatment for a work-related injury. In the Great Northern case, as in our current case, the employer asserted that its policy was numerically objective even if it took into account work-related injuries.

The Court of Appeals held in the Great Northern case that while there was nothing in the law that prohibits an employer from implementing an attendance policy which recognizes the accident prone, Wis. Stat. § 102.35(3) prohibits an employer from acting upon that recognition by terminating those employees who had work- related accidents. The Court of Appeals stated that using work-related injury and treatment as part of the total absence used to justify the discharge, the employer terminated the employees on a basis that the statute is designed to prevent. Similarly in our current case, the employer used the applicant's work-related injury and treatment as part of the total absences used to justify her discharge. The commission agrees with the administrative law judge that the employer's actions in this case were clearly contrary to the statute which is designed to prevent discrimination against employees who have previously sustained injuries. The commission finds that under the facts presented in this case the applicant's termination based on her absences for treatment for her work-related thumb injury amounted to an unreasonable refusal to rehire and violated the provisions of Wis. Stat. § 102.35(3).

cc: 
Attorney Robert J. Gray
Attorney John B. Wagman

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