JON HEIDERICH, Applicant
SEATS INC, Employer
In May 2005, the applicant filed his application for hearing seeking compensation under Wis. Stat. § 102.35(3). An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development heard the claim on October 25, 2005. Prior to the hearing, the employer conceded jurisdictional facts and an average weekly wage of $459.57.
On November 8, 2005, the ALJ issued her decision dismissing the application. The applicant filed a timely petition for review.
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 makes the following:
The applicant was born in 1961. He began working for the employer on October 18, 2002 (1) as a materials handler. He originally lifted metal products from bins and restocked machines. He later started working on a robotic welder which involved putting parts on a jig.
The employer gives new or probationary employees a 60-day evaluation derived from scoring by the employee's supervisor, team leader, and three coworkers in five areas: attendance, cost effectiveness/participation, safety/housekeeping, attitude/team effort, and quality/productivity. The scores are based on a 1-10 scale. Transcript, page 29. The employer's human resources manager testified that an employee who does not score 25 points may be discharged, or may be given a chance to make 25 points in a second review. An employee who does not make 25 points on the second review will be discharged without exception. Transcript, page 40.
In December 2002 or January 2003, the applicant received his first performance review. The review itself is not in the file, but the applicant admitted scoring only 22.8 points. The employer did not discharge him immediately because the applicant had moved his family to be closer to the job and because -- according to the personnel manager, at least -- the 60-day evaluation period ended in mid-December around the holiday season. At the time of this first evaluation, the applicant testified, he was told he was not meeting expectations as a material handler, and needed to do more production. After his evaluation, he was transferred to the job on the robotic welder.
On Tuesday, March 25, 2003, the applicant suffered an inguinal hernia while operating the robotic welding machine. He did not recall the exact nature of the injury at the hearing; the accident report indicates he was prying a part out of a jig. At the hearing, the employer seemed to call the injury into question, but since it offered no expert medical report to counter the reports of the applicant's doctors on causation, there really is little question the applicant sustained a compensable work-related injury.
The applicant did not immediately report the injury because he thought he just had a muscle strain. However, when he continued to have pain, he saw Karl Hoffman, M.D., on March 28, 2003. Dr. Hoffman diagnosed an inguinal hernia and referred the applicant to Dr. Klingbeil for a surgical consultation. Dr. Klingbeil saw the applicant in April 2003 and recommended surgery, which was done on April 29, 2003.
The applicant testified that following the injury on March 25, but prior to his surgery on April 29, he was on light duty for a month. Transcript page 26. He also testified that the injury had affected his productivity during this period. Id.
Also after his injury but before his surgery, the applicant's performance was reevaluated. The evaluations were due on April 7, 2003. It is not clear exactly when the rating sheets were handed out to the supervisor, lead worker and coworkers for completion, but at least one evaluation was not turned in by April 21. Thus, at least one evaluator, and likely more, would have completed the evaluation after the applicant was injured and working on light duty in late March 2003.
The applicant got a 24.9 on this second evaluation (exhibit 2), or at least that is how the employer scored his evaluation. On June 2, 2003, the applicant was released to return to work following his hernia repair surgery. When he returned to work that day, he was discharged.
The applicant was told he was fired because he did not make the mandatory 25 point cut-off on his second evaluation. In order to make 25 points, of course, the applicant would need to average 5 points in each of the five areas. The applicant's ratings were mostly in 4 to 6 range, but one rating in each category in the 4 to 6 was 2 or 2.5. The low rating appears to come from a single evaluator, as it is listed last in every category. The low rating was also accompanied by "no comment" in each instance, except for the safety/housekeeping category -- where a 2.5 rating was accompanied by the comment "cleans up good."
On appeal, the applicant suggests that this one evaluator low-balled, or in effect black-balled, him, and that if the lowest ratings were discounted, he would have made the 25-point cut-off. That is true, but the fact is that another evaluator (the second in each category) gave him ratings of 3.5 and 3.25 in two categories, indicating that he needed to step up his pace and that a "turtle was faster" than the applicant on some days. None of the applicant's ratings are particularly high. Outside of attendance, his highest rating was six. In the quality/productivity category, his highest individual rating was only 5 points.
The commission notes that the attendance score is not graded subjectively by the supervisor and coworkers. Rather the attendance score is based on a worker's actual attendance record. According to exhibit 2, workers lose 1 point for an absence and 0.5 points for being tardy. Exhibit 2 also indicates the applicant was never sick or absent, and tardy only once. Subtracting 0.5 from the 10.0 scale would result in an attendance score of 9.5. (2) Without explanation, the employer gave the applicant 8.5 points for attendance, and used that figure in arriving at his 24.9 total score. If the apparently correct 9.5 point figure is used for attendance, the applicant's score is 25.9.
Here, the applicant seeks compensation under Wis. Stat. § 102.35(3) for her discharge after returning to work following a work-related injury. 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...."
As stated in Dielectric Corp. v. LIRC, 111 Wis. 2d 270, 278 (Ct. App. 1983), 111 Wis.2d at 278:
"Under [Wis. Stat. § 102.35(3)], once the employee has suffered a worker's compensation injury, the question initially becomes: does the employer have good cause not to rehire. If the employee is rehired, the rehiring cannot be a pro forma rehiring. Therefore, if there is an eventual discharge, the employer must show that there is no bad faith on its part to evade this statute and that the rehired employee was discharged with good cause."
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.
The ALJ found for the employer. She did, however, note that the peer review portion of the employer's evaluation process lacked "significant insight and credibility." However, the ALJ concluded the employer acted reasonably because, in discharging the applicant, the employer simply followed the process it has chosen to use to evaluate its employees.
Applying the legal standard set out above, however, the commission must disagree. The applicant met his burden of proving that he was an employee who was injured and discharged. The employer thus has the burden of proving reasonable cause. The commission concludes the employer has not met its burden to show reasonable cause for two reasons.
First, by including a week of light duty in the second evaluation period, and given the applicant's credible testimony that his hernia condition hampered his ability to work during his final week in the evaluation period, it is reasonable to conclude the applicant's discharge was due in part to temporary disability from his work injury. At least, the employer has not shown otherwise. As with a discharge under a "no-fault" attendance policy which includes absences from the work injury, a performance-based discharge based in part on perceived performance shortcomings during a period including disability from a work injury is necessarily based in part on the work injury. Here the applicant was subsequently given a complete release to work -- which has not been challenged by contrary medical opinion. The second performance review fails to establish that that the effects of the applicant's disability from the work injury were not considered by the evaluators in judging his performance. The employer has not shown a discharge on these facts is reasonable.
Second, the applicant had a 25.9 rating assuming a single, half-point "tardy" deducted from a 10-point base for attendance. A discharge based on a miscalculated 24.9 rating thus also seems to fall short of the "reasonable cause" or "good cause" standard. The commission acknowledges that neither party raised this particular point its brief. However, the commission's review is not confined to the argument of counsel. UPS v. Lust, 208 Wis. 2d 306, 313-14 (Ct. App., 1997) (holding that LIRC has the duty to "find the facts and determine the compensation irrespective of the presentation of the case by the attorneys. [Citations omitted.]")
In short, the applicant was fired on the very day he returned from a surgery to correct a work-related injury. His discharge was based on a performance evaluation that almost certainly included a temporary period of light duty and diminished capacity from the work injury, circumstances which the employer had no reason to expect would continue. Further, it appears that the score of the evaluation that the employer contends was the basis of the discharge was miscalculated. The employer is therefore liable under Wis. Stat. § 102.35(3).
Following his discharge from the employer, the applicant was unemployed from June 2, 2004 to May 17, 2004 and again from September 21, 2004 into November 2004. This amounts to one years' lost wage, the statutory maximum payment under Wis. Stat. § 102.25(3). (3) At the conceded average weekly wage of $459.57, one years' lost wages equals $23,897.64.
The applicant agreed to an attorney fee set at 20 percent of the amount awarded, or $4,779.53. The applicant is entitled to the remainder, $19,118.11. These amounts shall be paid with 30 days.
NOW, THEREFORE, the Labor and Industry Review Commission makes this
The findings and order of the administrative law judge are reversed. With 30 days, the employer shall pay all of the following:
1. To the applicant, Jon Heiderich, Nineteen thousand one hundred eighteen dollars and eleven cents ($19,118.11) in compensation under Wis. Stat. § 102.35(3).
2. To the applicant's attorney, Ronald Fitzpatrick, Four thousand seven hundred seventy-nine dollars and fifty-three cents ($4,779.53) in attorney fee.
Dated and mailed March 30, 2006
heiderj . wrr : 101 : 8 ND § 7.32
James T. Flynn, Chairman
/s/ David B. Falstad, Commissioner
/s/ Robert Glaser, Commissioner
The commission did not confer with the presiding ALJ concerning witness credibility and demeanor. The commission's decision is based on essentially the same facts as found by the ALJ, and its reversal is not based on a different impression as to the credibility of the witnesses. Rather, the commission reversed based on the legal conclusion that the employer's reliance on its 25-point minimum performance standard system in discharging the applicant was unreasonable under the facts.
cc:
Attorney Ronald M. Fitzpatrick
Attorney Stacie J. Andritsch
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