DONAVAN IRELAND, Applicant
J L FRENCH CORP, Employer
In October 2002, the applicant filed an application for hearing seeking compensation 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 April 14, 2003.
Prior to the hearing, the employer filed an answer denying that the applicant had sustained an injury arising out of his employment. In his decision, the ALJ framed the dispute as arising on the applicant's allegation that his termination from employment was based on absences connected with the work injury.
On July 31, 2003, the ALJ issued a decision in the employer's favor dismissing the application. The employer filed a timely petition for review.
The commission has considered the petition and the positions of the parties,
reviewed the evidence submitted to the ALJ, and consulted with the presiding ALJ
concerning witness credibility and demeanor. Based on its review, the commission
makes the following:
The applicant was born in 1967, and began working for the employer in June 1999. On January 25, 2002, he went to the "health room" with wrist complaints, and was told to go home and ice his wrist. On January 28, 2002, the applicant went to see his doctor, Kevin Gassner, M.D., who diagnosed tenosynovitis or tendonitis due to overuse of the hand at work. Exhibit A.
Dr. Gassner released the applicant to one-handed work, a restriction which the employer accommodated. On February 22, 2002, the applicant's restrictions were modified to permit nonrepetitive right hand use. He was assigned work that again caused his wrist to swell; several times he had to go the health room because his hand swelled. He testified he had absences due to the hand swelling on February 4, March 20 and March 22.
The applicant's employment was terminated on April 10, 2002, when a supervisor, Brian Johnson, told him that he was discharged. According to the applicant, Mr. Johnson orally referred to the number of absences as the reason for the applicant's discharge. The file also contains a written "Disciplinary Action" dated April 9, 2002, which is marked as "Final Term." Exhibit 4. This document states the reason for the action in general terms as "poor job performance -- continuous down time caused by poor judgment and lack of 'common sense.'" The applicant acknowledges getting this document on April 10.
Tim Kellner, the employer's vice president of human relations who was not yet working for the employer when the applicant was discharged, testified the applicant was discharged for performance. He added that based on performance, the applicant could have been fired for shipping bad parts in December 2000 following a three-day suspension for bad parts in June 2000.
Supervisor Johnson likewise testified the applicant was discharged for performance, specifically a pattern of poor performance. In his last months of employment, the applicant received warnings for poor performance documented by "verbal" written warning on January 9, 2002; and a written warning on January 16, 2002; a 3-day layoff on February 7, 2002. See exhibit 4 last page. The employer's records also contain documents indicating that during reference checks the employer told, or would tell, other prospective employers that the applicant was fired for poor performance.
However, Exhibit C, which is a record from the Department of Workforce Development, Unemployment Insurance Division, indicates that the employer's representative told Unemployment Insurance Division personnel that the applicant was fired for both poor performance and attendance lapses. In the employer statement on form UCB 157, the employer's representative specifically mentioned the applicant's violation of its "no-fault" attendance policy. Exhibit C. Vice-president Kellner acknowledges that the person responding on behalf of the employer in the unemployment insurance matter was Linda Faust, the employer's benefits administrator, and that she listed performance and attendance as reasons for the discharge.
Moreover, Exhibit E -- which the applicant identified as a "paper from the company" showing the applicant's attendance -- discloses that the applicant lost his 14th point deducted for attendance on April 1, 2002. Exhibit E also indicates the applicant was discharged ten days later.
Vice president Kellner testified that the employer's attendance policy excluded worker's compensation days. Indeed, Exhibit E notes absences, but assesses no points, for two days associated with a work injury, February 15 and 22. However, Exhibit E also assess 2.5 points for three days -- February 4, March 20 and March 22 -- when the applicant testified he missed work because of his work injury. Admittedly, there are no doctor's slips releasing the applicant from work for these dates. However, the employer's own exhibit (Exhibit 1) states that the applicant missed work because of "WR tendonitis (hand is swollen)" on March 22 and ambiguously explains the February 4 absence as "WNBI."
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.
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. On the other hand, when absences due to a work injury are at least part of the reason for the discharge, the fact the employer has a 12-point attendance violation rule is not a sufficient defense. Id., 189 Wis. 2d at 318-320.
In this case, the employer admitted in its answer that the employer-employee relationship existed; Dr. Gassner's opinion (exhibit A) that the applicant sustained a work injury is unrebutted; and the employer admitted discharging the applicant at the hearing. In other words, the applicant has established that he was an employee with a work injury who was discharged. The applicant has therefore made his prima facie case, and the burden shifts to the employer to show reasonable cause for the discharge.
The employer asserts the applicant's discharge was performance-related. Certainly, exhibit 4 establishes that the applicant was "written-up" or warned on numerous occasions for various non-attendance violations (1) in the two years preceding his discharge. On the other hand, exhibit E, which was apparently admitted without objection, documents that the applicant exceeded the 12-point attendance standard, with the last point deducted ten days before the applicant was fired. As set out above, at least some of the absences for which the applicant received points were related to his work injury. In addition, vice president Kellner acknowledged that the employer's benefits administrator, Linda Faust, listed performance and attendance as the reasons for the applicant's discharge in connection with the applicant's unemployment insurance claim.
In sum, the commission concludes that the applicant's attendance played at least some role in his discharge, and that at least some of the attendance violations leading to his discharge were due to the work injury. Because the applicant was fired at least in part for absences due to his work injury, he is entitled to compensation under Wis. Stat. § 102.35(3) under Great Northern, at 189 Wis. 2d 318-19.
In calculating the applicant's award, the commission observes that the award of "one year's lost wage" under Wis. Stat. § 102.35(3) has consistently been construed to be a monetary, not a temporal, limit. Mushbash-Shir Muhammed II v. Maple Leaf Farms, Inc., WC Claim No. 95002415 (LIRC, May 8, 1997); Randy Brungraber v. Joseph Parent H Inc., WC Claim No. 1997-058704 (LIRC, March 1, 2001). See also: Neal & Danas, Workers Compensation Handbook, § 7.34 (5th ed., 2003). Further, unemployment insurance is not offset against the employer's liability under Wis. Stat. 102.35(3) (which is to be paid "in addition to other benefits.") Giese v. Associated Contractors Corporation, WC Case No. 89- 075597 (LIRC, March 4, 1992); Randy Brungraber v. Joseph Parent H Inc., WC Claim No. 1997-058704 (LIRC, March 1, 2001).
The applicant testified without contradiction that his hourly wage for the employer was $19.40 per hour. Assuming a forty-hour week, that amounts to $776 per week. Assuming a 52-week year, the limit on the total amount of compensation which may become due under Wis. Stat. § 102.35(3) in this case is $40,352.
The applicant was discharged April 10, 2002. He did not work at all from April 11 to December 29, 2002, a period of 37 weeks and two workdays. During this period, assuming the average weekly earnings of $776, the applicant lost wages of $29,022.40.
The applicant then worked for Locate Staffing Inc. The applicant submits pay data from Locate Staffing at exhibit F that establishes that during the period from December 29, 2002 to March 16, 2003, he lost wages as follows:
In all, then the wages lost while the applicant worked for Locate Staffing would be then $5,424.96.
As of March 17, 2003, the applicant began working for Rock Line Industries, where he makes $10 per hour. In the absence of testimony to the contrary, the commission infers the applicant worked a forty-hour week to the date of hearing on April 14, 2003. From March 17 to April 14, 2003, is a period of four workweeks, during which the applicant would have lost $1,504 {4 times ($776 minus $400)} in wages.
In sum, the applicant lost $35,951.36 from the time of his discharge to the date of hearing. He authorized a fee, set under Wis. Stat. § 102.26 at twenty percent of the award, or $7,190.27, which shall be paid to his attorney within 30 days. The remainder due the applicant within 30 days is $28,761.09.
Because the full dollar amount of the unreasonable refusal to rehire award has not been paid, and because the applicant may experience lost wages after the date of the hearing, this order shall be left interlocutory to address any claims for post-hearing wage loss.
NOW, THEREFORE, the Labor and Industry Review Commission makes this
The findings and order of the administrative law judge are reversed.
Within 30 days, the employer shall pay the following:
1. To the applicant, Donavan Ireland, Twenty-eight thousand six hundred sixty-one dollars and nine cents ($28,661.09) in compensation under Wis. Stat. § 102.35(3).
2. To the applicant's attorney, Samuel Zelpe, Seven thousand one hundred ninety dollars and twenty-seven cents ($7,190.27).
Jurisdiction is reserved for such further orders and awards as may be necessary and consistent with this decision.
Dated and mailed September 16, 2004
ireland . wrr : 101 : 8 ND
§ 7.25 § 8.26
James T. Flynn, Chairman
/s/ David B. Falstad, Commissioner
/s/ Robert Glaser, Commissioner
The commission conferred with the presiding ALJ concerning witness credibility and demeanor. He told the commission that he believed that the employer convincingly proved its attendance procedure was not the reason for the applicant's discharge; that essentially no proof was offered to show the attendance procedure was a factor; and that the applicant did not understand that there could be separate reasons (attendance and performance) for his discharge. When asked specifically about Ms. Faust's statement to the Unemployment Insurance personnel at exhibit C, the ALJ replied that that evidence was related to a matter heard in another forum, and that there was no evidence presented in his forum proving that attendance played a role in the applicant's discharge.
However, vice president Kellner testified in this case -- on direct examination by the employer -- that Ms. Faust gave the statement at exhibit C to the Unemployment Insurance Division and that she listed performance and attendance. Simply because the testimony given by Mr. Kellner related to an unemployment insurance claim does not mean it cannot be considered as evidence.
True, Wisconsin Stat. § 108.101 states that no finding of fact or law made with respect to liability under the unemployment insurance statutes is binding in an administrative action under the worker's compensation law, (2) but the applicant did not argue the commission or ALJ were bound by any finding made in his unemployment insurance case. It is also true that the commission may not take administrative notice of the content of an unemployment insurance file in a worker's compensation claim unless the parties are permitted to offer rebuttal evidence at a hearing. Amsoil, Inc. and Travelers Insurance Company v. LIRC and Silberg, 173 Wis. 2d 154, 166, 496 N.W.2d 150 (Ct. App. 1992), (holding that LIRC erred in taking "administrative notice" without providing opportunity for rebuttal on further hearing, but that the error was harmless because other evidence in the record supported the decision.) Here, of course, the commission is not taking "administrative notice" of the employer's statement in exhibit C; rather the applicant offered it as an exhibit at his worker's compensation hearing. Moreover, the employer had the opportunity, and in fact availed itself of the opportunity, to question a witness regarding exhibit C.
cc:
Attorney Samuel Zelpe
Attorney Joseph J. Voelkner
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