FORREST MORRILL, Applicant
WETTSTEIN & SONS INC, Employer
In September 2001, the applicant filed an application for hearing seeking compensation from the employer under Wis. Stat. § 102.35(3). An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development heard the matter on June 4, 2003.
Prior to the hearing, the employer conceded an average weekly wage of $490. The ALJ issued her decision on June 20, 2003. The applicant filed a timely petition for commission review.
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 makes the following:
The employer owns commercial property. The applicant was hired in January 2001 to work as a custodian for the employer, and his duties included supervising other workers. On August 12, 2001, he hurt his neck at work. His doctor took him off work temporarily thereafter, and then released him to work without restriction on August 20, 2001.
At the time of his injury, the applicant had been working first shift as the maintenance supervisor, though he occasionally "filled in" on second shift. When he returned to work following the injury, he was assigned permanently to second shift work, 2:30 p.m. to 11:00 p.m. The employer's president Wettstein explains this as part of a "management change." The employer had hired a more experienced individual (Thurston) a month earlier who was put in charge of the custodial workers. As a result, the applicant had to report to Thurston after the change. However, the applicant's pay remained the same.
The applicant's first day back from the work injury, then, was also his first day on second shift, August 20, 2001. On that day, he finished early, about 9:30 p.m., and called Thurston to see if he could leave. According to the applicant, Thurston gave him permission to leave early, and he locked the doors and left.
The applicant went on to testify that the next day, August 21, 2001, Thurston called the applicant and told him he was fired. The applicant testified Thurston told him the discharge was for lack of communication during the time he was off work for the work injury.
The applicant's wife, Michelle, who also worked for the employer, testified she too talked to Thurston. Michelle testified Thurston fired her as well over the phone, telling her he had to do it before the employer's president returned from vacation. She also testified that Thurston later told her he did not have a reason to fire her, and that she could return to work.
The employer's president, Wettstein, testified that the employer does not discipline employees who are injured, and did not fire the applicant due to his workers compensation claim. Rather, Wettstein testified the applicant was fired because he was not happy with his job, and for his poor attitude, his lack of communication, and leaving work early. Wettstein admits the applicant did not receive any oral or written reprimands. He testified he might have been on vacation when Thurston fired the applicant and that Thurston did not consult with him about it.
Thurston testified, as well. He testified the applicant was unhappy about the schedule changes, and "threatened to bounce my head" when Thurston and the applicant discussed the matter. Thurston also testified he did not give the applicant permission to leave early on August 21, 2001, but specifically told him the shift ended at 11:00 p.m. Thurston also testified that he fired the applicant face-to-face, not over the phone, because his of attitude, his uncooperativeness, and the threat. Thurston denied firing Michelle Morrill.
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...."
To make a prima facie case of liability under Wis. Stat. § 102.35(3), a worker must prove 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.
The applicant has established that he was an employee with a work injury who was discharged. He has therefore made his prima facie case, and the burden shifts to the employer to show reasonable cause for the discharge. The ALJ concluded the employer met its burden by establishing that the applicant was fired because of "personality conflicts" with Thurston and Wettstein.
However, the commission does not agree. If the employer had proven that it reasonably believed the applicant had an insubordinate or uncooperative attitude following the reorganization, that might well have established reasonable cause for the discharge. Certainly, the physical threat to his supervisor, if it occurred, would have been reasonable cause. Further, leaving work early without permission might also have established reasonable cause for the discharge.
However, the ALJ did not conclude the applicant was discharged for any of those reasons. Rather, she explicitly found that the employer's witnesses, Thurston and Wettstein, were incredible, and she "completely rejected the testimony of [those] witnesses." The commission, after a careful examination of the record, sees no reason to disturb the firsthand credibility impressions of the ALJ -- who actually observed all the witnesses as they testified. Like the ALJ, then, the commission concludes the employer has not shown it discharged the applicant because of an insubordinate attitude, threats against Thurston, or leaving work early.
In fact, because the testimony of its witnesses has been completely discredited, the employer has not proven any cause for the applicant's discharge. The commission is left with the explanation provided by the applicant -- that he was told he was fired because he failed to communicate adequately with the employer during his time off work for his injury. However, the employer did not establish how or even if the applicant failed to communicate adequately, let alone why such a failure, assuming it existed, provided reasonable cause for the applicant's discharge.
The ALJ found that the applicant was discharged because of a personality conflict with his supervisors. The commission accepts the finding that a personality conflict existed, noting again that the ALJ could observe the applicant and his supervisors at the hearing. However, no one testified the applicant was actually discharged due to a personality conflict. In any event, a discharge for something as nebulous as a "personality conflict" is suspect where, as here, it occurred the day after the applicant's return from a work injury and the employer's witnesses testified incredibly that much more serious problems were the basis for the discharge.
In sum, the employer has not met its burden of establishing reasonable cause for the discharge, and the applicant is entitled to compensation under Wis. Stat. § 102.35(3). The employer therefore is liable for wages lost during the period of the unreasonable refusal, not exceeding one year's lost wages.
Following his last day of work on August 20, 2001, the applicant lost wages as follows:
In total, then, the employer is liable to the applicant in the amount of $8,994 in lost wages.
The one year's lost wages provision under Wis. Stat. § 102.35(3) sets a monetary, not a temporal, limit. Hill v. Chili's Inc, WC Claim No. 2001-017165 (LIRC, November 21, 2002); Muhammed v. Maple Leaf Farms, WC Claim No. 95002415 (LIRC, May 8, 1997); Neal & Danas, Worker's Compensation Handbook § 7.34 (5th ed., 2003). Consequently, jurisdiction is retained to permit further orders regarding the employer's potential liability under that statute in the event the applicant loses additional wages in the future.
NOW, THEREFORE, the Labor and Industry Review Commission makes this
The findings and order of the administrative law judge are reversed.
Within 30 days from the date of this order, the employer shall pay the applicant Eight thousand nine hundred ninety-four dollars ($8,994) in lost wages under Wis. Stat. § 102.35(3).
Jurisdiction is reserved for further orders and awards as are consistent with this decision.
Dated and mailed January 29, 2004
morrilf . wrr : 101 : 8 ND § 7.25
/s/ David B. Falstad, Chairman
/s/ James T. Flynn, Commissioner
/s/ Robert Glaser, Commissioner
Because the commission adopted the ALJ's stated credibility impressions, a credibility conference under Transamerica Ins. Co. v. ILHR Department, 54 Wis. 2d 272, 283-84 (1972) was not necessary. Rather, the commission reached a different legal conclusion based on the record evidence that the ALJ found credible.
cc: Attorney Thomas S. Sleik
Appealed to Circuit Court. Affirmed December 2, 2004.
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