STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

BRYAN W LEISER, Applicant

MADISON FREIGHT SYSTEMS INC, Employer

UNITED WISCONSIN, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 2005-000361


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.

ORDER

The findings and order of the administrative law judge are affirmed.

Dated and mailed March 22, 2006
leisebr . wsd : 175 : 8   ND § 7.32

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner


MEMORANDUM OPINION

The employer asserts in its petition for commission review the administrative law judge erred in determining the employer unreasonably refused to rehire the applicant in violation of Wis. Stat. § 102.35(3) when it terminated the applicant within hours of his work injury on December 30, 2004. The employer states it had reasonable cause for discharging the applicant following his work injury when the applicant failed to follow the employer's policy and undergo a urine test when he was first treated on December 30, 2004. The evidence indicates the applicant suffered a torn biceps tendon while driving a truck for the employer on December 30, 2004, while making a delivery in Chicago. The applicant, although in a great deal of pain, was able to operate his truck and return from Chicago to the employer's base in Milwaukee, and he sought treatment on December 30, 2004, at St. Francis Hospital for a torn right biceps tendon. The applicant testified that he had not sought medical attention immediately because he knew the employer was shorthanded and the employer was looking for a reason to get rid of him, and he wanted to avoid that outcome and return the truck as soon as possible.

The applicant testified when he was hired he made the employer aware he suffered from shy bladder syndrome which made it difficult for him to undergo a urine test on demand. The employer admitted that it was aware of the applicant's shy bladder syndrome and the existence of the syndrome was not contested. The applicant testified he was unable to provide a urine sample on December 30, 2004, because he was not able to use his right arm which was in a sling, he was in severe pain at the time he had received the pain injection, and because of his shy bladder syndrome. The applicant testified he attempted to get a urine sample but was unsuccessful. The applicant offered to provide a blood sample or to be catheterized to obtain the necessary sample, and was given a breathalyzer test which was negative.

The administrative law judge appropriately noted the applicant did not refuse to be tested and he willingly underwent an alcohol breath test which was negative; and he also tried to produce a urine sample but was not successful. In the case of a discharge, the employer's refusal to rehire must have been without reasonable cause in order to find the employer liable under Wis. Stat. § 102.35(3). The employer must show that there was no bad faith on its part to abate the statute and that the employee was discharged with good cause. Dielectric Corp. v. LIRC, 111 Wis. 2d 270 (Ct. of App. 1983).

In this case the employer did not establish that it had reasonable cause for discharging the applicant shortly after his work injury on December 30, 2004, when he suffered a ruptured right biceps tendon. The applicant credibly testified he was in a great deal of pain and disability following the work injury and treatment at St. Francis Hospital. The evidence indicates the applicant attempted to comply with the employer's policy to provide a urine sample immediately following the work injury and treatment. The applicant testified that given the fact that his right arm was immobilized, and he was in a great deal of pain, and considering his shy bladder syndrome, he was unable to provide a sample as required. The employer's refusal to allow the applicant to give a sample by another means was unreasonable under the circumstances.

The commission agrees with the administrative law judge that the employer's actions in refusing the applicant both options led to an unreasonable termination of employment. The applicant gave the employer due notice of his shy bladder syndrome, and had given a urine sample in a previous injury situation. In addition, the applicant had undergone a breathalyzer test on December 30, 2004, which was negative and he unsuccessfully attempted to provide a urine sample. The employer provided no reasonable explanation for failing to allow the applicant to provide the sample through catheterization or blood sample. Based on the facts presented in this case, the commission does not find the employer had reasonable cause for discharging the applicant on December 30, 2004. Therefore, the commission finds that the employer unreasonably refused to rehire the applicant in violation of Wis. Stat. § 102.35(3) when it determined to discharge the applicant shortly after his work injury on December 30, 2004.

cc:
Attorney Monika A. Hartl
Attorney Daryll J. Neuser



Appealed to Circuit Court. Affirmed November 2, 2006.

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