MICHAEL FISCHER, Applicant

WEYAUWEGA MILK PRODUCTS, 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, except that it makes the following modifications:

Delete the material beginning with the last paragraph beginning on the sixth page of the ALJ's decision and ending with the third paragraph beginning on the seventh page of the ALJ's decision and substitute:

"Mr. Fischer reported to work on January 1, 2003, because he misread the schedule, due to the location and layout of the schedule. Mr. Fischer's discussion with Mr. Thiel on December 31, 2002, about work on January 1, 2003, further confused the issue. Mr. Fischer reported to work on January 1, 2003 in plain view of the employer's managers and numerous coworkers, indicating he was not attempting to hide anything. When asked to leave on January 1, 2003, Mr. Fischer did so promptly in accordance with the employer's instructions. The employer's policy prohibiting injured workers on light duty from work on holidays is not in writing, and Mr. Fischer apparently was not told he could be discharged if he reported to work on January 1, 2004.

"While the employer's discipline policy does give the employer the prerogative to omit steps in its disciplinary policy depending on the nature and seriousness of the violation, the discharge of an injured worker must still be for reasonable cause to avoid payment under Wis. Stat. § 102.35(3). Given the confusion over the schedule, the fact that the special rules governing light duty status were only orally given to Mr. Fischer, the lack of a warning that discharge would result from reporting to work on a holiday, and the fact that Mr. Fischer's status on light duty was itself due to a work injury, it cannot be concluded that the employer has shown that Mr. Fischer's act in reporting for work on January 1, 2003 constituted reasonable cause for his discharge."

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

Dated and mailed March 30, 2006
fischer . wmd : 101 : 8  ND § 7.32

James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

On appeal, the employer basically asserts it had good cause for discharging the applicant and that the ALJ was essentially substituting his business judgment for that the employer. This, the employer asserted, runs afoul of the "business judgment rule," which the employer describes as a judicially-created doctrine that limits judicial review of corporate actions undertaken in good faith.

On the point, the employer cites Einhorn v. Culea, 2000 WI 65, 235 Wis. 2d 646. That case involved the obviously-distinguishable situation of a special litigation committee created in response to a shareholder's derivative action. While the court did refer to the business judgment rule, Einhorn, 235 Wis. 2d 646, ¶19, and the judicially-created doctrine limiting judicial inquiry into when corporate directors make business decisions on an informed basis, in good faith and the honest belief they are acting in the best interests of the company, the court also held that the doctrine did not apply to the situation at issue in that case. Id., at 235 Wis. 2d 646, ¶55. Further, this case does not involve a shareholders suit questioning a decision by corporate directors, but a determination under a statute that specifically directs the commission to determine whether the employer's management had reasonable cause for the applicant's discharge following a work injury. If the legislature wanted the commission instead to use a lower "good faith and honest belief" standard in its determinations under Wis. Stat. § 102.35(3), the legislature would have specified that standard.

The employer also points to testimony from its witnesses suggesting that the applicant acknowledged that he knew he was not supposed to go to work on January 1, 2003, but otherwise said very little during the first discharge meeting or the second one that included his wife. The applicant disputed making the admission and testified he told the employer's witnesses he misread the schedule. The ALJ, who observed the witnesses as they testified, credited the applicant's testimony. Finally, while the questions of the reasonableness of the applicant in reporting to work and the reasonableness of the employer in discharging him are related, it is the latter, not the former, that is decisive.

cc:
Attorney Samuel J. Bomier
Attorney Patrick P. Gill

Appealed to Circuit Court.  Affirmed January 17, 2007.

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