DWIGHT A BAKER, Applicant

FINDORFF J H & SON INC, Employer

An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission agrees with the decision of the ALJ, and it adopts the findings and order in that decision as its own.

The findings and order of the administrative law judge are affirmed. The application brought under Wis. Stat. § 102.35(3), is dismissed.

Dated and mailed November 8, 2005
bakerdw . wsd : 185 : 8   ND § 8.22

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

The applicant's foreman, Barry Behringer, did not rehire the applicant when he returned for work on August 12, 2003. Behringer credibly testified that he did not take the applicant back because he wanted individuals who were harder workers than the applicant to get that particular project going. He was concerned that in the past the applicant had spent too much time talking to other people on the job, rather than attending to his work duties. As noted in the administrative law judge's findings, Behringer was also concerned with the quality of the applicant's work. The commission did not find credible the applicant's testimony that Behringer told him he could not rehire him because the employer's safety director had told him not to do so, based on the fact that he had been injured at work. Behringer and the safety director both credibly denied this allegation.

In its cross-petition, the employer asserted that the claim should be dismissed due to alleged witness tampering. The message the applicant left on the co-worker's answering machine could be interpreted as threatening, but if so, the threat was indirect and did not affect the presentation of the employer's case. Regardless, there is no remedy in Chapter 102 for witness tampering, other than the fact that it reflects negatively on the credibility of anyone who engages in it.

cc:
Attorney Paul F X Schwartz
Attorney Timothy G. Costello

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uploaded 2005/11/22