JUAN RAMOS VASQUEZ
a/k/a PEDRO RAMIREZ, Applicant

EMMPAK FOODS INC, Employer

BIRMINGHAM FIRE INSURANCE CO OF PA, Insurer

The applicant submitted a petition for commission review alleging error in the administrative law judge's Findings and Order issued in this matter on September 13, 2004. Emmpak Foods, Inc. and Birmingham Fire Insurance Company of PA (respondents) submitted an answer to the petition and briefs were submitted by the parties. At issue are the nature and extent of disability attributable to the conceded work injury of August 5, 2002.

The commission has carefully reviewed the entire record in this matter, and after consultation with the administrative law judge regarding the credibility and demeanor of the witnesses, hereby affirms in part and reverses in part his Findings and Order. The commission makes the following:

The applicant began working for the employer as a meat cutter in November 1999. In May 2002, the employer's manager told the applicant his social security number did not match his name and he should straighten this out. The manager told the applicant he would get back to him about this problem. The applicant concedes that he was using a false name and a false social security number, but there is no evidence with regard to whether he was an illegal alien. It is the employer's regular policy to terminate individuals without proper identification. After the applicant failed to provide the employer with proper documentation, the employer told him he would be training a replacement. The record does not reveal the date on which the applicant's replacement was hired, but on August 5, 2002, the applicant was training that individual when he accidentally cut the applicant's right arm with a knife. The wound was on the medial side just above the right elbow, and included a complete transection of the ulnar nerve, which Dr. Ron Stark surgically repaired on the date of injury.

The surgery had a good result and Dr. Stark released the applicant to one-handed duty as of August 13, 2002, which the employer provided beginning on that date. However, on August 15, 2002, the employer discharged the applicant because he had not straightened out the false identification problem. On August 20, 2002, the employer sent the applicant a letter indicating that work was available for him, providing that he would be able to show valid documentation authorizing him to work in this country. The applicant found employment through a temporary help agency beginning on October 4, 2002. On an unspecified date in December 2002, he obtained legal identification. He asserted that he did not go back to the employer because they had fired him, but more credibly conceded that he did not want to go back because the work injury scared him.

The applicant is claiming temporary total disability from August 15, 2002 to October 4, 2002, and temporary partial disability from October 4, 2002 to August 3, 2003. Both respondents' and applicant's physicians opined that a healing plateau was reached after August 3, 2003. The applicant is also claiming 20 percent permanent partial disability at the right elbow, and an interlocutory order.

TEMPORARY DISABILITY

As noted in Arista-Rea v. Kenosha Beef, WC Claim No. 1990-070904 (LIRC May 5, 1999) (Affirmed in Kenosha Beef International and Transportation Insurance Company v. LIRC and Arista-Rea, No. 99-CV-000539 (Wis. Cir. Ct. Kenosha County March 6, 2000)), a worker who is discharged because of illegal alien status, and not offered reemployment, remains eligible for temporary disability benefits. The reason for such eligibility is that no provision in Wisconsin's Worker's Compensation Act disqualifies such an individual from receiving temporary disability. However, the employer in Arista-Rea did not offer the applicant reemployment after his discharge. The employer in the case at hand informed the applicant by letter dated August 20, 2002, that work was available for him as soon as he provided valid documentation. For reasons not explained by the applicant, he chose not to obtain such documentation until December 2002, and even then he did not attempt to return to employment with the employer. (1)   The applicant did not establish that he was an illegal alien, or that he was otherwise unable to obtain proper documentation sooner than he did obtain it in December 2002. The employer's demand that the applicant provide his legal name and social security number was entirely reasonable, and had been made to the applicant in May 2002, well before his work injury. The employer had given the applicant ample time to obtain the documentation, but after he failed to do so, the employer hired an individual to replace him. The applicant was training this individual when the injury occurred. Wis. Admin. Code § DWD 80.47 provides:

Even though an employee could return to a restricted type of work during the healing period, unless suitable employment within the physical and mental limitations of the employee is furnished by the employer or some other employer, compensation for temporary disability shall continue during the healing period. (emphasis added)

The credible inference is that the employer's offer of reemployment in the letter dated August 20, 2002, was legitimate and was made in good faith. The offer only required the applicant to obtain documentation of his legal identity in order to return to work. The employer therefore carried its burden of demonstrating that the termination was with reasonable cause. The applicant's unexplained failure to respond to this bona fide offer was the equivalent of a refusal of an offer of work, and it was this refusal rather than the effects of the work injury that caused the applicant's unemployment and underemployment during the periods in question. However, because the employer's offer was not made until August 20, 2002, and because a reasonable period of time for the applicant to have received and responded to it is inferred to have been two weeks, temporary total disability will be allowed through September 2, 2002.

The applicant is therefore entitled to temporary total disability for the period of August 15, 2002 through September 2, 2002, a period of two weeks and five days, at the applicable rate of $367.36 per week, for a total of $1,040.85. A 20 percent attorney's fee will be subtracted.

PERMANENT PARTIAL DISABILITY

The commission finds that a permanency assessment at the elbow is inappropriate because the only permanent residuals are in the applicant's wrist and hand, including his ring and little fingers. The applicant's symptoms of numbness do not extend proximally beyond his wrist, his grip strength is good, and his only loss of motion is the adduction loss in his little finger. Dr. Weiner's assessment of 7.5 percent permanent partial disability at the right wrist is accepted, except that it will be modified to 12.5 percent because it does not allow any percentage for the adduction loss in the little finger, and because the applicant's ulnar numbness distally extends from the wrist to the tip of his little finger.

The applicant is therefore entitled to 12.5 percent permanent partial disability at the right wrist, which is the equivalent of 50 weeks of compensation at the applicable rate of $212.00 per week, for a total of $10,600.00. The insurance carrier previously conceded and paid $6,360.00 in permanent partial disability, leaving the net amount due of $4,240.00. A 20 percent attorney's fee shall be subtracted from this net amount. 

FINALITY OF ORDER

Dr. Stark indicated in a WKC-16-B dated July 30, 2003, that the applicant could need a tendon transfer in the future. In a letter dated February 23, 2004, Dr. Stark indicated that he did not believe the applicant would need "any future treatment at this point." Dr. Weiner indicated in his November 2003 report that there was "no indication [the applicant] will require tendon transfers or a nerve graft at this point in time." These opinions are equivocal, and therefore the commission will exercise its discretion to leave the order interlocutory.

NOW, THEREFORE, this

Jurisdiction is reserved for such further findings and orders as may be warranted.

Dated and mailed June 10, 2005
ramirpe . wpr : 185 : 8  ND § 5.9

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

MEMORANDUM OPINION

The commission consulted with the administrative law judge regarding the partial reversal of the permanent partial disability award. The commission had no disagreement with the administrative law judge's impression that the applicant was straightforward in his testimony regarding his permanent residuals. As explained above, the commission found the applicant entitled to the additional 5 percent permanent partial disability at the wrist level based on the loss of adduction motion in his little finger, and based on the extent of his ulnar wrist/hand numbness.

COMMISSIONER GLASER, DISSENTING

I respectfully dissent from the majority decision. I do not believe the post-termination offer of reemployment was made in good faith, and in cases such as this where an injured employee has been terminated, offers of reemployment must be very closely scrutinized with respect to their legitimacy. The employer was willing to allow the applicant to work without proper identification from May through the time of the work injury on August 5, 2002. It was only after that injury that the employer chose to terminate him. After the work injury the employer allowed the applicant to return to work for only two days before terminating him, allegedly for a problem it had tolerated for months prior to that injury. The employer never clarified what job or duties the individual described as the "replacement" was hired to assume. The employer told the applicant it had work available if he would provide proper documentation of his identity, but the availability of such work was never substantiated, and the credible inference is that the employer assumed the applicant would not obtain this documentation. The Wisconsin Supreme Court and Court of Appeals have stated 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). Consistent with this purpose, and with the credible evidence presented in this case, I would find that the employer failed to demonstrate reasonable cause for its termination of the applicant. The statute was violated and the penalty should be assessed against the employer.

______________________________________
/s/ Robert Glaser, Commissioner

cc:
Attorney Israel Ramon
Attorney Joseph Danas, Jr.

Appealed to Circuit Court.  Affirmed April 12, 2006.

[ Search Decisions ] - [ WC Legal Resources ] - [ LIRC Home Page ]

(1)( Back ) The applicant did indicate he was reluctant to return to the employer because of the injury he sustained there, but no medical evidence was submitted indicating that he was physically or psychologically unable to return.

uploaded 2005/06/13