JEANNE NEESE, Applicant
BERGSTROM CHEV-PONT-CAD, 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 March 9, 2005
neeseje . wsd : 101 : 8 ND § 8.18 § 7.28 § 9.2
/s/ James T. Flynn, Chairman
/s/ David B. Falstad, Commissioner
/s/ Robert Glaser, Commissioner
This case poses two issues: first, does the employer have good cause for its failure to appear at the hearing, and second, does the record support the award in favor of the applicant under Wis. Stat. § 102.35(3) even though the employer did not appear.
1. Failure to appear.
Wisconsin Stat. 102.18 (1)(a), while stating that all parties should be afforded the opportunity for a full and fair hearing after reasonable notice, provides that disposition of an application may be made by default. The court of appeals has affirmed the practice of the commission and the department to issue decisions on a hearing at which only the applicant appears on the theory that the non-appearing respondent is in default. County of Juneau v. LIRC and Skalak, Case No. 84-1746 (Wis. Ct. App. Oct. 24, 1985).
No specific statutory or rule provisions govern a failure to appear in workers compensation cases. Gram Stolpa v. Seljan Tool Company, WC Claim No. 97011508 (LIRC, February 28, 1998). With respect to failures to appear at a hearing, the commission has previously held:
"In general, a nonappearing party may be entitled to relief in the form of further hearing if his or her failure to appear was a result of excusable neglect. Auclair v. LIRC and Friendly Village, Inc, WC Case No. 83-836 (Wis. Ct. App., May 22, 1984). Excusable neglect is that neglect that might have been the act of a reasonably prudent person under similar circumstances. Auclair, slip opinion at 3, and Hedtcke v. Sentry Insurance Company, 109 Wis. 2d 451, 468 (1982). Excusable neglect is not the same as neglect, carelessness or inattentiveness.
"For the purposes of determining whether to remand for hearing on the failure to appear issue the commission follows a procedure similar to that followed when acting on late petitions. First, the commission assumes that statements offered by the non-appearing party to explain his nonappearance are true, unless something in the record makes the statements appear inherently incredible. The next step is to consider whether, if believed, those statements establish that the failure to appear was from excusable neglect. If the statements, even if believed, do not meet that standard, remand is unnecessary: the commission simply denies further hearing. If the alleged facts do show excusable neglect, the commission may either remand for a hearing to attest whether the facts actually are as alleged or simply remand for testimony on the merits."
Angela M. Brinkley v. Stat Temporary Services, WC Claim No. 2000-028860 (LIRC, December 18, 2001) (applicant's failure to appear) and Gestrich v. Dr. Detail, WC Claim No. 1999-034612 (LIRC, January 24, 2000) (respondent's failure to appear); VanVleet v. Transportation Unlimited, WC Case No. Claim No. 2001-020854 (LIRC, April 23, 2003). See also: Raymond Podgorski v. ABB Painting, WC Claim No. 95035783 (LIRC, August 29, 1996) aff'd sub nom. ABB Paint Finishing, Inc. v. LIRC, case no. 96 CV002246 (Wis. Cir Ct. May 23, 1997), summarily aff'd Case No. 97-1992 (Wis. Ct. App., January 6, 1998) (involving employer failure to appear in unreasonable refusal to rehire case.)
In this case, the employer contends that it failed to appear because it "mistakenly believed its insurer would be defending this claim." While default orders are disfavored, Brantner v. Brick Oven Bakery, Inc., WC Claim No. 1999-011909 (LIRC, March 23, 2001), the commission has previously rejected the excuse offered by the employer in this case as a basis for excusable neglect in Brantner (setting aside the default order for other reasons) and Terri Payne v. Parkview Care Center, WC Claim No. 90-045397 (LIRC, December 13, 1991) (upholding default order).
As in Payne, the record indicates the employer was explicitly informed that its worker's compensation insurer had no responsibility to defend the claim On January 24, 2001, the department sent the employer a letter on form GL33 stating that the applicant was alleging an unreasonable refusal to rehire and that the "Worker's Compensation insurance carrier has no responsibility to defend or pay this claim." (See Respondent's Exhibit 1, a February 6, 2001 letter from the employer to the worker's compensation division the including GL33 letter as an enclosure).
In short, the employer has not shown probable good cause for its failure to appear, and the commission shall proceed based on the record from the March 11, 2004 hearing.
2. Refusal to rehire
The next issue is whether the record on default supports the findings of an unreasonable refusal to rehire. 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. Further, as stated in Dielectric Corp. v. LIRC, 111 Wis.2d 270, 278, 330 N.W.2d 606 (1983):
"Under [Wis. Stat. § 102.35(3)], once the employee has suffered a worker's compensation injury, the question initially becomes: does the employer have good cause not to rehire. If the employee is rehired, the rehiring cannot be a pro forma rehiring. Therefore, if there is an eventual discharge, the employer must show that there is no bad faith on its part to evade this statute and that the rehired employee was discharged with good cause."
Thus, 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).
Finally, 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 employee testified she was an employee of the employer who sustained a work injury, and was subsequently discharged. While the applicant testified that an employer's representative told her she had not been discharged because she was too important to the company, the applicant's further testimony that she was never placed elsewhere or offered employment went unrebutted by competent evidence. Her testimony is corroborated by a February 6, 2001 letter from the employer's general counsel which admitted she was terminated. Respondent's Exhibit 1.
Of course, the employer's general counsel did state in the same letter that the applicant was offered and declined reemployment. However, while an admission of a party opponent (that is, a statement offered against the party making the statement) is technically not hearsay, (1) the representation of the employer's general counsel that the applicant declined a job offer was not offered as evidence against the employer. Consequently, that part of the general counsel's letter -- the statement that the applicant was offered and declined reemployment -- does not fit the hearsay exception for an admission of a party opponent. In any event, the firsthand testimony from the applicant about what was said during her meetings with the general sales manager and personnel representatives would be more credible than the recital of the employer's general counsel--who was not present at those meetings -- about what was said.
The employer also cites Hill v. LIRC, 184 Wis. 2d 101, 516 N.W.2d 441 (Ct. App. 1994). In that case, a truck driver suffered injuries that would prevent him from returning to work as a truck driver. The employer had other work within his restrictions, but did not offer it to him as he had expressed no interest in work other than truck driving. The commission held that an applicant need not formally reapply when a worker is released to his old job, or when the worker has been terminated while on disability leave. However, the commission went on to state that where the applicant is not able to return to his old job, he must tell the employer he is interested in other work. The court of appeals affirmed this holding.
However, the employer itself recognizes that the Hill holding applies when the work injuries prevent the injured worker from returning to his or her former job. Here, the applicant was able to return to her sales job, and in fact returned to it for some time prior to her discharge. More on point in this case is L&H Wrecking, Inc. v. LIRC, 114 Wis. 2d 504 (Ct. App., 1983). There, the employer discharged an injured worker prior to the end of healing based on the erroneous conclusion that the work injury prevented him from doing his work. The commission found a violation of Wis. Stat. § 102.35, but the circuit court reversed because the worker did not present himself for work after reaching a healing plateau. The court of appeals reinstated the commission's decision stating that "to require a terminated employe to report to work in order to recover under sec. 102.35(3) is an unreasonable construction of the statute." Id., at 114 Wis. 2d 510.
The employer also argues that the applicant lost wages due to her injury and the resulting restrictions, not its failure to rehire her. On this point, the employer notes the applicant was assigned very tight work restrictions when she ended healing. Again, however, the applicant had actually returned to work during her healing period and earned wages. The fact she was subsequently terminated by the employer resulted in the lost wages; her injury, so far is it can be determined from the record, did not prevent her from earning wages as a salesperson for the employer.
An injured worker with permanent residuals will often have some restrictions that negatively affect the applicant's ability to earn money. The fact that there are such restrictions do not automatically rule out a refusal to rehire claim. Rather, if an employer is claiming a worker cannot work for the employer 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; otherwise it does not rebut the prima facie case. West Bend, supra, at 149 Wis. 2d 126. The employer has not done that here.
In sum the applicant has made her prima facie case, and the employer has not rebutted it. The ALJ's decision must be affirmed.
3. Collateral issues.
Finally, the commission addresses some collateral issues raised by the applicant's attorney in response to the petition for review.
First, the applicant's attorney contends the PCR should be dismissed as insufficient under the commission's "rule of practice" that requires a petitioner to set out the ALJ's findings on which error is claimed. The applicant goes on to point out that the employer's petition does not do that, but instead generally alleges error in the ALJ's conclusion. The applicant also contends the employer's petition questions the propriety of the default order and whether the applicant's lost wages were due to the refusal to rehire, neither of which were the subject of specific findings by the ALJ.
The commission, however, has no "rule of practice" requiring any level of specificity in petitions for review. The applicant's argument apparently is based on a form (WKC-28) that the department provides for petitions to the commission. While the form helpfully asks parties to list the errors they believe were made, it does not add to the basic statutory and administrative rule requirements for a sufficient petition which, apart from timeliness, are minimal. See Wis. Stat. § 102.18(3) and Wis. Admin. Code §§ LIRC 1.02 and 3.01.
The applicant's attorney also asks the commission to find the petition "frivolous" and states he is seeking penalties against the employer for filing a frivolous petition. Of course, the commission has no authority to find a petition for review frivolous and impose sanctions under Wis. Stat. ch. 102, Wis. Stat. § 814.025, or elsewhere. The applicant may file an application seeking assessment of a penalty for bad faith or unreasonable delay in payment under Wis. Stat. § 102.18(1)(bp) and 102.22(1), and the commission is unwilling to bypass that process.
Finally, the applicant's attorney challenged the use of a transcript of the hearing rather than the ALJ's hearing notes for review. Here, the transcript is from a worker's compensation employee, the employer provided the applicant with a copy, and the applicant really has identified no prejudice from using the transcript. See Wis. Admin. Code § LIRC 3.02.
cc:
Attorney Stuart J. Spaude
Attorney Samuel J. Bomier
Appealed to Circuit Court. Affirmed December 19, 2005.
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