TRACY M. PORTER, Applicant
HICKMANS ACADEMY OF EXCELLENCE, Employer
An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development heard this matter on April 5, 2004. Prior to the hearing, the employer conceded jurisdictional facts, an average weekly wage of $350, and an injury arising out of the applicant's employment with the employer while performing services growing out of an incidental to that employment. At issue was the employer's liability under Wis. Stat. § 102.35(3).
On April 12, 2004, the ALJ issued his decision. The applicant filed a timely petition for commission review.
The commission has considered the petition and the positions of the parties, reviewed the evidence submitted to the ALJ, and consulted the ALJ concerning witness credibility and demeanor. Based on its review, the commission makes the following:
The applicant worked as a driver for the employer, a child care provider. On December 8, 2002, he was injured at work when the vehicle he was driving was struck from behind by another vehicle while stopped. He was taken off work for a month and released on light duty.
On January 7, 2003, the applicant contacted the employer about returning to work with light duty. The employer told him it had no light duty work available for him. The applicant was subsequently released to return to work without restriction, and department records indicate the employer's worker's compensation insurer stopped paying temporary disability on March 31, 2003.
In the first week of April 2003, shortly after he had been released to work with no restrictions, the applicant again returned to the employer inquiring about work. Thereafter, the employer's administrator, Leessa Derrick, told him there were no driver positions available.
Administrator Derrick testified that when the applicant sought reemployment in the first week of April 2003, she "ran the MVR" or checked the applicant's motor vehicle record. Transcript, page 24. Ms. Derrick learned the applicant had had two accidents within the last three years: the one causing his injury on January 7, 2003, and another one in 2000. According to the applicant, the 2000 accident, too, happened while his vehicle was stopped. Transcript, page 14.
Administrator Derrick testified that she contacted the employer's insurer who told her "[the applicant] would not be recommended for hire because he had two accidents in the last year." Transcript, page 24; see also Exhibit 1. The insurer's representative did not tell Ms. Derrick that it would not insure the applicant. Transcript, page 24. Ms. Derrick speculated that even if the insurer were to insure him, the rates would increase dramatically. Finally, Ms. Derrick testified she had hired other individuals to work as drivers for the employer in the year preceding the hearing. Transcript, page 27.
The applicant testified that he next retained employment at $10 per week from Harman's child care as a driver on February 10, 2004. Transcript, page 13. He has remained employed there ever since at 35 hours a week. No issue was raised here about any prior accident. Transcript, page 14. Of course, by February 2004, the 2000 accident would have fallen off his three-year record.
Wisconsin Statutes § 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...."
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).
The statute applies to unreasonable discharges after a return to work following a work injury, as well as simple failures to rehire; an employer cannot evade liability by showing a short-term pro forma rehire. 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., 1982).
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 specifically 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 employer's reasonable cause for the discharge or failure to rehire may be that the work injury prevents the worker from doing available work. In that event, the 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, if it refuses to rehire a worker for that reason. West Bend, supra, at 149 Wis. 2d 126. An employer may also meet its burden by establishing that the employee was discharged for a reasonable cause unrelated to the injury, such as misconduct, poor performance or a business slowdown. Great Northern Corp. v. LIRC, 189 Wis. 2d 318-19 (Ct. App., 1994); Ray Hutson Chevrolet v. LIRC, 186 Wis. 2d 118, 123 (Ct. App., 1994).
The ALJ dismissed the applicant's claim, finding the employer reasonably "relied on the representation of its insurance broker that the insurance carrier would charge a substantial higher premium or deem Porter uninsurable." He quite evidently believed Ms. Derrick's testimony that she contacted the insurer who recommended not hiring the applicant. However, the ALJ also added to that testimony in reaching the legal conclusion recited above and the fact finding on which it is based. Ms. Derrick testified she was not told one way or another if the applicant would be insurable or there would be a rate increase. Transcript, page 25.
In this case, the applicant has made his prima facie case under Wis. Stat. § 102.35(3) by showing that he was an employee, that he was injured, and that he has not been rehired by the employer. The burden thus has shifted to the employer to show reasonable cause for its refusal to rehire the applicant.
The commission concludes that the employer has not shown reasonable cause for refusing to rehire the applicant when he presented himself without restriction in early April 2003. The record contains no evidence that the applicant was uninsurable or that the employer's rates would increase. Ms. Derrick testified only that she was told the insurer recommended against hiring the applicant, and she thought the agent would tell her the rates would increase. More to the point, there is no first hand testimony about insurance issues at all -- the commission would have to draw an inference based on uncorroborated hearsay to find a reasonable cause for refusing to rehire the applicant on that basis.
Nor can the commission conclude that the employer had no work available when the applicant presented himself for rehire in early April 2003. If there was in fact no work available, or if the employer did not anticipate having work available soon, one must wonder why Ms. Derrick not only checked the applicant's motor vehicle record, but also contacted the employer's insurer about rehiring the applicant. In short, the validity of the "no work available defense" is undercut by the addition of another, inconsistent defense about insurability.
The applicant is therefore entitled to compensation for lost wages, not to exceed one year's wages. In this case, the applicant testified he earned $10 per hour working for the employer 35 hours a week. His actual weekly wage therefore was $350. That amount was apparently increased to $400 when his average weekly wage for the purposes of disability compensation was calculated under Wis. Stat. § 102.11, and the applicant claimed a $400 average weekly wage at the hearing. However, the applicant initially claimed only wages of $350 in his hearing application, the employer conceded wages in that amount in its answer, and "wage" was not listed as an issue for hearing. Consequently, the commission assumes a weekly wage of $350 for the purposes of Wis. Stat. § 102.35(3). (1)
Under the facts of this case, the commission concludes the start date for the lost wages should be Monday, April 7, 2003, based on Ms. Derrick's testimony the applicant presented for rehire in the first week of April 2003. The applicant testified he began working for another employer again on February 10, 2004, at $350 per week, and remained so employed to the date of the hearing. Consequently, the period of lost wages is from Monday, April 7, 2003 to Tuesday, February 10, 2004, a period of 44 weeks and one work day. At the weekly rate of $350 per week for a five day week, this equals $15,470 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, the employer shall pay the applicant Fifteen thousand four hundred seventy dollars ($15,470.00) in compensation for lost wages under Wis. Stat. § 102.35(3).
Jurisdiction is reserved for further orders and awards as are appropriate.
Dated and mailed May 6, 2005
portert . wrr : 101 : 1 ND § 7.32
/s/ James T. Flynn, Chairman
/s/ David B. Falstad, Commissioner
/s/ Robert Glaser, Commissioner
The commission conferred with the presiding ALJ concerning witness credibility. He regarded the applicant as straightforward and honest. Despite finding for the employer, he was less impressed with the credibility of the employer's witness, whose responses to questioning seemed glib or practiced.
cc. Ms. Leesa Derrick
Appealed to Circuit Court.
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