ROBERT E. ROBERGE, Applicant
MARTEN TRANSPORT LTD, Employer
An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development heard this matter on March 23, 2004. Jurisdictional facts and a compensable injury were conceded prior to the hearing. At issue was the employer's liability under Wis. Stat. § 102.35(3).
On June 23, 2004, the presiding ALJ issued his decision in the employer's favor. The applicant filed a timely petition for commission review.
The commission has considered the petition and the positions of the parties, discussed witness credibility and demeanor with the presiding ALJs, and reviewed the evidence submitted to the ALJ. Based on its review, the commission makes the following:
The applicant, a truck driver, was in a serious accident in the course of employment on July 29, 2001. He testified that he choked on some juice while driving, and as a result passed out and lost control of his vehicle.
The employer decided to discharge the applicant on August 2, 2001. Exhibit H, a log of information kept by the employer concerning the accident contains a notation for that date stating
"smp 08/02/01 15:47 ACCIDENT REVIW COMM- GROUP VOTED TERMINATION"
The employer's safety director, Daniel Peterson, testified that that was the only notation concerning the applicant's termination, and that "smp" were the initials of safety committee member, risk manager Steve Prinze. Mr. Peterson also testified the decision was made after talking to the applicant only once, by telephone on July 31, 2001, when the applicant told Peterson that he had gotten a drink and it went down wrong, causing him to cough to catch his breath and pass out. Exhibit H, notation for July 31, 2001 at 8:44 a.m. According to Mr. Peterson, the safety committee considered the accident "preventable" and discharged the applicant for failing to keep the vehicle under control.
Thereafter, on August 17, 2001, then, the employer's human resources manager, Susan Deetz, sent the applicant a letter terminating his employment as of that date "due to the violation of company policy, pertaining to your recent preventable accident of July 29, 2001." Exhibit D. However, shortly before that letter was sent, on August 13, 2001, the employer's president sent a handwritten note to the applicant stating:
I understand you are slowly starting to heal after your major accident that part is good news -- the bad side is the healing from our first ever 1 million dollar accident (1) will take years.
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.
In this case, the applicant has established a prima facie case by showing that he was an employee who suffered a work injury and was subsequently discharged. The burden has thus shifted to the employer to show a reasonable cause for the discharge.
It is evident from Mr. Peterson's testimony that the decision to discharge the applicant was based on the belief the applicant probably fell asleep instead of choked. Mr. Peterson testified he did not believe the applicant choked, and also that he felt drivers are usually too embarrassed to admit they fell asleep. However, Mr. Peterson testified he would not have regarded choking on a drink as a basis for finding an accident nonpreventable in any event, that he believed even a choking driver should be able to keep a vehicle under control.
Nonetheless, on at least one prior occasion, the employer had declined to discharge a driver, Muirhead, who lost control while coughing and drove into a median. See exhibit 11, notation for Muirhead. Mr. Peterson explained that Muirhead had not been discharged because of his length of service; Muirhead had been on the job for more than four years, while the applicant had been for less than one year. It is noteworthy that Mr. Muirhead did not file a claim for worker's compensation.
The commission understands that the medical record contains inconsistent explanations as to how the applicant lost control. However, the applicant denied telling medical personnel that he lost control because he sneezed or fell asleep, and that those entries are erroneous. Further, the most damaging part of the medical record -- the September 10, 2001, physical therapy note where the therapist recorded the applicant fell asleep -- was written over a month after the applicant was fired.
That is significant because, after the burden shifts, the inquiry focuses on whether the employer has reasonable cause for the discharge. When the decision was made to discharge the applicant on August 2, 2001, the employer relied either on the belief that the applicant fell asleep or that losing control of a vehicle during a choking incident is preventable. However, as of August 2, 2001, there was little evidence the applicant fell asleep and the fact the employer did not discharge Mr. Muirhead for coughing indicates it had accepted such a similar excuse as nonpreventable in the past. Further, Mr. Marten's note of August 13, 2001 strongly suggests that the employer's decision to discharge the applicant was based on the plain fact that he had been in an expensive accident causing injury, rather than on an assessment of the "preventableness" of the accident.
The commission concludes the applicant in fact lost control because he choked while driving. The commission further concludes that the employer has not proven it had reasonable cause to discharge the applicant.
The applicant documented $9,761 in lost wages for the period from February 21, 2002 to February 24, 2003, a figure to which the employer has not objected. The applicant agreed to a 20 percent fee, as well as the payment of costs of $76.29, which shall be deducted from the applicant's award and paid to his attorney under Wis. Stat § 102.26.
Accordingly, the amount due the applicant's attorney as fee is $1,952.20 (0.20 times $9,761). That amount, plus costs of $76.29, shall be paid to the applicant's attorney within 30 days. The remainder, $7,808.80, shall be paid the applicant in 30 days.
Prior to the hearing, the applicant's attorney stated that there was no ongoing loss after February 24, 2003. However, recognizing that the "one years wages" limit in Wis. Stat. § 102.35(3) is monetary rather than temporal (2), the applicant seeks an interlocutory order in the event of additional lost wages. This order shall be left interlocutory to permit additional awards under Wis. Stat. § 102.35(3) if further wage loss is sustained. In addition, this order should not be construed to preclude other claims not arising under Wis. Stat. § 102.35(3).
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 all of the following:
1. To the applicant Robert E. Roberge, Seven thousand eight hundred eight dollars and eighty cents ($7,808.80) under Wis. Stat. § 102.35(3).
2. To the applicant's attorney, Daniel Schosinski, One thousand nine hundred fifty-two dollars and twenty cents ($1,952.20) in fee and Seventy-six dollars and twenty-nine cents ($76.29) in costs.
Jurisdiction is reserved for further orders and awards as are warranted and consistent with this decision.
Dated and mailed May 31, 2005
robergr . wrr : 101 : 8 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 explained that he drew an adverse impression of the applicant's credibility because he was not wearing his safety belt at the time of the accident, and because the applicant minimized the seriousness of his traffic ticket at the hearing. These factors led the ALJ to conclude the applicant was reckless and more likely fell asleep than choked. The ALJ also reported that the applicant did not have good eye contact at the hearing, and seemed more nervous than usual for a testifying applicant.
However, the ALJ also reported he did not entirely credit Mr. Peterson's testimony either. In particular, the ALJ questioned Mr. Peterson's testimony that the employer's owner, Mr. Marten, was not involved in the discharge decision. The commission agrees this seems unlikely, especially as Mr. Marten handwrote a note to the applicant that pointedly mentioned the size of the financial loss from the work injury.
Further, while the commission acknowledges the applicant was not wearing a safety belt when injured, the applicant was a trainer for the employer which Mr. Peterson acknowledged was a very important job. During a driving test, the employer reported he had done an excellent job, and that his skill level was exceptional (the highest rating.) The commission agrees that the applicant's decision not to wear a safety belt was unwise, but it declines to infer from that omission that he was reckless or lying about how he lost control of his vehicle.
cc:
Attorney Daniel R. Schoshinski
Attorney William J. Westerlund
Appealed to Circuit Court. Affirmed February 17, 2006.
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