TOM L BAIN, Applicant
EDL PACKAGING ENGINEERS, Employer
WORKER'S COMPENSATION DECISION
Claim No. 2001-057091
The applicant filed an application for hearing raising the issue of the employer's liability for an unreasonable refusal to rehire under Wis. Stat. § 102.35(3). All other issues were resolved by compromise. The refusal to rehire issue was heard by an administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development on June 28, 2004. At the hearing, the employer conceded jurisdictional facts, a compensable injury on March 15, 2001, and an average weekly wage on that date of $640. At issue was whether the employer is liable for an unreasonable refusal to rehire under Wis. Stat. § 102.35(3).
The ALJ issued his decision dismissing the applicant's claim on July 8, 2004. The applicant filed a timely petition for commission review.
The commission has considered the petition and the positions of the parties, conferred with the presiding ALJ concerning witness credibility and demeanor, and reviewed the evidence submitted to the ALJ. Based on its review, the commission makes the following:
The applicant was born in 1959. Upon leaving the military in 1980, he went to a technical school where he took welding and blueprint reading courses. He then worked as a welder for FWD Seagraves, where he did detailed welding on doors for fire trucks, from 1998 to 2001. While working at Seagraves, he had some problems with his hands that caused him to miss time from work, before being released by his doctor to full duty.
The applicant started working for the employer in February 2001. On March 15, 2001, while the applicant was grinding a piece of metal, the piece flew out of his hand and he experienced sharp pain in his right arm. He immediately told his supervisor about the pain, and sought treatment at a local hospital.
Indeed, on the very day of the injury, the applicant signed a statement provided by his supervisor, Ken Anderson, which stated:
Due to an injury I sustained at my previous employer, I will be unable to use my right arm until I receive written permission from my doctor.
I am unable to lift, write or do anything that may require the slightest use of my right arm.
I hold ELD Packaging Engineers harmless of any costs related to this incident.
Exhibit 7.
Subsequently, the applicant treated with Dr. Papandrea on March 19, 2001. His note mentions recurrence of pain about the applicant's elbow and arm over the last several weeks, and that he had been doing a lot of grinding at this new job which was about like his old one. The doctor also noted that the injury seemed to be related to the applicant's previous employment.
The applicant returned to work for the employer, first to one-handed work, then on April 4, to work "as tolerated" which meant a forty-hour week. The employer's other welders were working a 50-hour week.
On or about May 3, 2001, the applicant was working at his bench when Ken Carter, an owner or main boss of the employer, came up to him and began to discuss workers compensation. According to the applicant, Carter told him that he (Carter) did not need a worker's compensation situation or claim, did not want to hire an attorney, and did not want to jeopardize the applicant's job. The applicant testified he (the applicant) apologized, because he viewed his injury as having occurred with the prior employer, Seagraves.
The applicant then had a doctor's appointment on May 4. He returned to work the next day. He worked his full shift. He testified that, at the end of the day, the plant manager pulled him aside and told him he was fired because he was not quick enough. The applicant tried to protest that he was on work restrictions, but the supervisor did not care.
According to the applicant, until he was discharged, he never had been warned about his performance. He testified, too, that he was unaware of any probationary period when he was hired. Transcript, page 29.
The applicant's supervisor, Clinton Neshek, also testified. He said that the employer required a probationary period and that, in the last few years, only one of four welders made it off probation. He testified, too, that the applicant was discharged because of poor performance, or poor workmanship, as his product was not square. He said he spoke with the applicant about it on several occasions, prior to the discharge.
There are, however, no written warnings. The employer submitted the applicant's attendance record, but Neshek testified that only the quality of his work, not his attendance or limitation on hours, were the reason for his discharge, at least as far as Neshek was concerned or as far as he knew. Transcript, pages 97-98. Neshek did not actually discharge the applicant, however, or participate in the decision to discharge him.
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.
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. Further, when absences due to a work injury are at least part of the reason for the discharge, the fact the employer has a 12-point attendance violation rule is not a sufficient defense. Id., 189 Wis. 2d at 318-320.
The applicant has made his prima facie case here. There is no question the applicant was the employer's employee or that he was discharged. Further, the employer conceded a compensable injury on March 15, 2001. Transcript, page 7.
Has the employer rebutted the prima facie case by establishing a reasonable cause for the discharge? Certainly, a discharge legitimately based on poor job performance could be a reasonable cause for a discharge. Here, Mr. Neshek testified the applicant was discharged before the end of his probationary period because of the quality or workmanship of his product, and that he had verbally warned the applicant about it prior to discharge. However, the applicant testified no such warning occurred, and that he was told he was being discharged because he was too slow while he was working subject to restrictions from his injury.
The ALJ found the applicant's discharge was "due to lost time and the quality of work produced." Thus, while the ALJ found in the employer's favor, he did not completely credit Neshek's testimony that the applicant's discharge was due solely to the quality of the work. This is borne out by the absence of written warnings about performance, as well the fact the employer introduced two exhibits, 3 and 4, which document the lost time. The commission thus concludes the discharge was due at least in part to lost time due to the conceded work injury.
Moreover, on the date of injury, the employer had the applicant sign exhibit 7, which purported (1) to hold the employer harmless for the work injury. Based on this document, the commission credits the applicant's testimony that Ken Carter spoke with the applicant about a potential worker's compensation claim in May 2001, and suggested his job might be in jeopardy. Finally, while the employer brought in Neshek to testify about his concerns with the applicant's workmanship and job performance, he did not actually discharge the applicant or decide that he would be fired. He admitted that while he had input into the process of discharging the applicant, he did not participate in the actual decision and that he was not sure who made the decision. Transcript, page 79. Neshek cannot offer first-hand evidence as to why the applicant was discharged.
In short, the commission cannot credit the employer's contention that workmanship or product quality was the sole or motivating reason for the applicant's discharge. The commission finds further that the employer has not shown a reasonable cause for the applicant's discharge.
After the applicant was discharged on or about May 5, 2001, he earned $1,681 in wages from Lannon Tank from June 4 to July 3, 2001. From August to November 2002, he earned $7,670.65 at D & D Products. He worked at Generac from August 2003 to February 2004, where he earned $5,838.65 in 2003. He then began working for Allister Fabrication on April 8, 2004, where he remained employed to the date of the hearing. He also earned $2,000 or $3,000 in contract work after his discharge.
Based on this history, and giving the employer full credit for wages earned from the period May 5, 2001 to April 8, 2004, the applicant has lost wages in the amount of at least one years' wages (2) with the employer. At the average weekly wage of $640, then, the full amount of the employer's liability under Wis. Stat. § 102.35(3) is $33,280.
The applicant approved an attorney fee set under Wis. Stat. § 102.26 at 20 percent of the amount awarded or $6,656. That amount shall be paid to the applicant's attorney within 30 days. The remainder, $26,624, shall be paid to the applicant in 30 days.
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:
Dated and mailed June 23, 2005
bainto . 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 pointed out that, when the conversation between the applicant and Ken Carter allegedly occurred in May 2001, the employer did not yet know the applicant would bring a claim against it and the applicant's own doctor was associating the disability with the injury with Seagraves. This, the ALJ believed, made it unlikely Carter would discuss worker's compensation issues with the applicant, and undercut the applicant's credibility about why he was discharged and whether he had been warned.
However, the employer was aware the applicant suffered a recurrence of pain while at work for the employer on March 15, 2001. Indeed, its concern about potential worker's compensation liability led it to obtain the hold harmless agreement at exhibit 7. The commission is not persuaded that, upon getting the hold harmless agreement, the employer believed it was immunized from any worker's compensation claim and that worker's compensation issues no longer played any role in its dealings with the applicant. Rather, the commission concludes that concern about worker's compensation liability, the expenses and inconvenience of possible litigation -- as well as accommodating the applicant's work restrictions and lost work time from the injury -- played a substantial role in his discharge.
cc:
Attorney Jerome A. Konkel
Attorney Ross J. Nova
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