FRANK LYNN JR, Applicant

STOUGHTON TRAILERS LLC, 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 29, 2005
lynnfr . wsd : 175 : 8  ND § 7.32

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

The employer asserts in its petition for commission review the administrative law judge erred in determining the employer unreasonably refused to rehire the applicant pursuant to Wis. Stat. § 102.35(3) when it terminated the applicant for failure to appear at work on May 7, 2003. The employer contends it terminated the applicant for good cause and without bad faith given the fact the applicant had nine previous occurrences of absences within the past six months, and suffered the tenth occurrence on May 7, 2003, under the employer's no fault absenteeism policy. The employer states the applicant's final occurrence happened when the applicant, knowing full well that the employer was actively seeking the permission of his treating physician for the applicant to perform suitable one-handed, light-duty job, absented himself from his hometown, and professed ignorance that he was supposed to return to work in order to save his job, and then claimed that in one-half days time he could not find some means to travel six miles to the employer's place of business.

However, the applicant credibly testified he did not receive a second telephone message from Ms. Ott, the employer's worker's compensation manager, on May 6, 2004, indicating Ms. Ott had spoken to the applicant's treating physician who was willing to allow him to return to light-duty for one-handed work only, and the applicant should report the next morning for his regular shift at 6:00 a.m. The evidence indicates the applicant had been absent from his home due to the illness of his oldest child. The applicant credibly testified that he spoke with his treating physician, Dr. Idsvoog, on May 6, 2003, as instructed by the employer, but was not given a release to return to work for one arm work only. The evidence indicates the applicant did not have any transportation to work on the morning of May 7, 2003, due to his family situation at the time that he was contacted by Ms. Ott, and informed that he needed to come to work to avoid a final occurrence under the employer's attendance policy. The evidence does not indicate at the time that the applicant was discharged that he had been informed by his treating physician that he was released from his restrictions to stay off of work, and that he could perform one arm work only. The evidence indicates that the applicant was terminated without being given the opportunity of at least one days notice so that he could consult his physician to verify the modification in his restrictions and to make arrangements for light-duty.

The employer must demonstrate reasonable cause for discharging the applicant following a work-related injury. In West Allis School Dist. v. DILHR, 116 Wis. 2d 410, 422, 426 (September 1984) the Wisconsin Supreme Court noted that it is clear from the plain words of Wisconsin statute sec. 102.35(3) that its purpose is to prevent discrimination against employees who have previously sustained injuries, and to see to it if there are positions available, and the injured employee can do the work, that the injured person goes back to work with his former employer. Accordingly, an employer if there is suitable employment available can only refuse to rehire for a cause or a reason that is fair, just or fit under the circumstances.

In our current case, the administrative law judge appropriately noted that it was unreasonable for the employer having secured a modification of the applicant's work restrictions orally from Dr. Idsvoog, and having failed to contact and speak with the applicant directly, to then claim his absence had nothing to do with the work injury, and to fire him for his failure to promptly report. The commission does not find that the employer's purported reason for discharging the applicant was fair, just or fit under the circumstances. The commission agrees with the administrative law judge that the applicant should have been given at least one days notice to consult his physician and verify the modification to his work restrictions, and make arrangements to report for light duty. The evidence indicates the employer did not have reasonable cause for discharging the applicant, and therefore the employer unreasonably refused to rehire the applicant pursuant to Wis. Stat. § 102.35(3), and was appropriately awarded up to one years back pay as a result of the employer's violation.

cc:
Attorney Jerome Konkel
Attorney Timothy J. Yanacheck

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