ROBERT F SCHAEFER, Applicant
NORCO MFG CORP, Employer
This case arises on the applicant's claim that the employer is liable for payment under Wis. Stat. § 102.35(3) based on an unreasonable refusal to rehire. A hearing was held before an administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development on May 19, 2004. Prior to the hearing, jurisdictional facts and an average weekly wage of $522.50 were conceded.
On November 22, 2004, the ALJ issued his decision dismissing the application. The applicant filed a timely appeal.
The commission has considered the petition and the positions of the parties, reviewed the evidence submitted to the ALJ, and discussed witness credibility and demeanor with the applicant. Based on its review, the commission makes the following:
The applicant began working for the employer as a machine operator for the employer, a steel fabricating company, in September 1998. He has several work injuries during his employment with the employer.
In late November 2001, shortly after the last incident occurred but before he had been released to return to work, the employer called a meeting with the applicant in which the applicant was discharged. The applicant testified that he was told at the discharge meeting with the employer's president, Dave Eberle, and the applicant's foreman, Wayne Thieme, that he was discharged for safety concerns. Transcript 1, pages 16, 17.
The applicant's wife, Rebecca, was also at the discharge meeting. She recalled Dave Eberle telling them the applicant was fired for safety concerns, and also "his [Eberle's] insurance was going to go up." Transcript 1, page 39. Indeed, she testified he said he was going to have to pay in insurance because of the applicant's injuries -- obtain "higher risk insurance" -- and showed the applicant and his wife a letter to that effect. Transcript 1, page 39.
After the discharge meeting, and after the applicant had been released to return to work in early December 2001, the couple later received a letter from the employer dated December 17, 2001 (exhibit C) stating in part:
"...We have been concerned about the safety of you and your fellow employees, and feel that it is in the best interests of all parties that you be laid off/terminated."
The employer's president, Dave Eberle, also testified. He said he made the decision to fire the applicant after the fifth injury, and that his decision was based on two factors: the applicant's injury history and the increasing severity of those injuries. He testified that as the applicant was injured, the employer kept trying to find less dangerous work for him, but that it had literally run out of available choices. Transcript 2, page 6.
Eberle testified, too, that the employer stopped allowing the applicant to drive a forklift or operate the crane, because whenever the applicant used either conveyance, all work would stop because his coworkers were concerned about their safety. Eberle did acknowledge that the employer did not document its concerns with the forklift or crane, but just stopped him from using those devices. Transcript 2, pages 10, 11. The applicant admitted he was taken off that work. Transcript 1, page 32.
Eberle also testified about the meeting with applicant and his wife. He stated that Rebecca asked Eberle what the employer expected her to do with Eberle if he was discharged -- that she could not leave him at home alone. Eberle said he responded by telling her he felt that comment was an incredible thing to say -- that Rebecca would rather have the applicant risk injury or death in an industrial setting. Transcript, 2, page 16. Rebecca, for her part, testified she did not recall making the remark. Transcript 1, page 41.
Eberle went on to testify that steel fabrication is a relatively dangerous job, that he has seen amputations and fatalities -- albeit in other companies that fabricated bigger components. Transcript 2 page 17. He testified that while the applicant was loyal and would do what he was told if he was instructed what to do, he did not retain the instruction from day to day, and could not "go from one responsibility to another." He testified that he did not believe more instruction would work -- that that had been tried to no avail. Transcript 2, page 31.
One interesting aspect of Eberle's testimony is that he initially stated the applicant was hired in late 2000, but admitted later it was September 1998. Transcript 2, pages 17 and 20. Eberle also testified that he learned in October 2001 -- or before the applicant's last injury -- that his worker's compensation insurer for 2001 was dropping the employer at the end of the year. Transcript 2, page 23. Eberle testified that the insurer had told him that the number of injuries the employer's employees had suffered generally was the reason it was dropping coverage. Transcript, page 27. Eberle also admitted the applicant's past injuries contributed to his decision to fire the applicant. Transcript 2, page 28. He admitted, too, telling the applicant the worker's compensation premiums were going to go up. Transcript 2, page 28.
The applicant's direct supervisor, Wayne Thieme, testified as well. He stated that the applicant's injuries to him seemed like carelessness, that the applicant had more injuries than the other workers he supervised, and that the injuries started happening after the first year of employment. In particular, he testified that even though he, Thieme, told him to be careful and safety conscious, the applicant just was not doing it. Transcript 1, pages 55 and 56.
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 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. As the applicant points out, the supreme court has said that when a worker is injured and the employer believed is likely he would reinjure himself, it needs expert medical evidence to justify the discharge. West Bend, 149 Wis. 2d at 130. In other words, where an employer offers a medical reason or prognosis for refusing to rehire, it must have a competent medical opinion to support that reason. West Bend at 149 Wis. 2d 130.
An employer may also meet its burden by establishing that the employee was discharged for an intervening, reasonable cause unrelated to the injury, such as absences which have nothing to do with the work injury, 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). However, Wis. Stat. § 102.35(3) applies even where a worker is fired only in part because of the work injury. Great Northern, at 189 Wis. 2d 318-19.
The commission has stated that when a discharge is not based on medically justified work restrictions attendant to the work injury, reasonable cause for discharge or failure to rehire must 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 (LIRC, September 13, 2000); Christina Kiefer v. Menard Cashway Lumber, WC claim No. 1997022484 (LIRC, September 27, 2000).
In this case, the applicant has established that he was an employee of the employer who was injured in the course of employment and subsequently discharged. He has made his prima facie case for recovery under Wis. Stat. § 102.35. The burden is thus on the employer to show reasonable cause for the discharge.
While Mr. Eberle testified the applicant did not retain instruction from task-to-task, there is no competent proof from a medical or psychological expert that the applicant had a condition or impairment that made him mentally or psychologically unfit for his employment. Nor has the employer proven the applicant's injuries were due to intentional safety violations or reckless conduct. The applicant had worked for the employer for more than three years when he was discharged. While Mr. Thieme generally told the applicant to be more careful or safety conscious, it does not appear that the applicant ever received specific safety instructions which he ignored. While he had a number of accidents, they involved different activities and involve the everyday lapses in care that underlie most industrial accidents.
On the record before it, the commission cannot conclude that the employer had shown anything more than that the applicant was accident prone. As the court of appeals has recognized:
"[Great Northern (the employer)] candidly justifies its ["no fault" attendance] policy on the grounds that Great Northern wanted to "recognize" those employees who are accident prone or who are frequently ill. While there is nothing in the law that prohibits an employer from "recognizing" the accident prone, § 102.35(3), STATS., prohibits an employer from acting upon that recognition by terminating those who had work-related accidents."
Great Northern, 189 Wis. 2d at 319. Under the facts of this case, the employer has not rebutted the applicant's prima facie case by showing reasonable cause for discharging the applicant.
Based on the foregoing, the commission finds the employer is liable under Wis. Stat. § 102.35(3). The remaining issue is how much.
Exhibit D documents earnings of $17,662.91 during the period after the applicant was able to return beginning in December 2001 through the date of hearing in May 2004. Subtracting these earnings from the amount the applicant would have earned in the same period had he remained employed yields a difference well in excess of $27,170, the maximum payment of one year's wage under the statute. (2)
Accordingly, the employer is liable to the applicant in the amount of $27,170. The applicant has agreed to an attorney fee set at 20 percent under Wis. Stat. § 102.26. The fee of $5,434 shall be deducted from the award and paid the applicant's attorney within 30 days. The remainder, $21,736, shall be paid to the applicant.
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, Twenty-one thousand seven hundred thirty-six dollars and no cents ($21,736.00) as an award under Wis. Stat. § 102.35(3).
2. To the applicant's attorney, Daniel J. Kelley, Five thousand four hundred thirty-four dollars and no cents ($5,434.00) in fees.
Dated and mailed July 14, 2005
schaefr . 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. He characterized the applicant's demeanor at the hearing as "disconnected," pointing out that the applicant did not seem to remember facts one would normally expect a worker to recall and that the applicant did not seem to react to the testimony of other witnesses as a worker would normally be expected to react. He believed the applicant's wife had indeed told Eberle she was concerned for the applicant's safety if left home alone. The ALJ added that he found Mr. Eberle quite credible, and believed that Mr. Eberle acted on the good faith belief the applicant would injure seriously injure another worker or himself if he remained employed. When asked if he believed the applicant had a diagnosable medical or psychological condition or impairment which affected his ability to work, the ALJ frankly stated he could not be sure and added that the applicant's behavior might have been on verge of a symptomatic or diagnosable condition.
The commission agrees that Mr. Eberle was credible. He frankly admitted that the applicant's injuries factored into his decision, and that he told the applicant and his wife that the injuries affected his worker's compensation rate or ability to procure lower risk insurance. However, given the case law discussed above, the commission could not conclude that Mr. Eberle's concerns established reasonable cause under the facts of this case.
cc:
Attorney Daniel J. Kelley
Attorney Mark R. Hinkston
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