CHARLES SWENSON, Applicant
DEBOER TRANPORTATION 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.
Dated and mailed February 27, 2008
swensch . wsd : 185 : jjs ND 7.32
/s/ James T. Flynn, Chairperson
/s/ Ann L. Crump, Commissioner
The commission concurred with the reasonable and thorough decision written by the administrative law judge. In particular, the employer did not credibly explain how the applicant's fitness to resume over-the-road driving could only have been evaluated by an overnight road trip. If it was night driving the employer was concerned about, it could have required the applicant to have gone out with an observer on a night driving trip, with a return home the following morning. This would have been precisely the type of route the applicant had driven in his pre-injury employment. The employer's unyielding insistence that there be an extended overnight trip was unexplained and unreasonable.
The simple accommodation the applicant requested for the testing process was reasonable, and it would not have jeopardized any of the employer's safety concerns. The applicant merely asked for an alternative schedule so that he could care for his terminally ill father, but the employer gave no explanation for failing to even consider this request. As noted by the administrative law judge, the employer had the burden of demonstrating reasonable cause for discharging the applicant, but failed to carry that burden. The employer's safety director refused to discuss any possible accommodation with the applicant, resulting in what constituted a discharge. The courts have regularly held that the statute must be liberally construed to effectuate its beneficent purpose of preventing discrimination against injured employees. The employer's actions evinced an unreasonable disregard for the applicant's circumstances, leading to the credible inference that the work injury did play a part in the discharge. The employer violated both the spirit and the letter of the law set forth in Wis. Stat. § 102.35(3).
ROBERT GLASER, COMMISSIONER Dissenting
For personal reasons, the applicant refused to comply with a reasonable employer rule that addresses safety concerns for over-the-road truck drivers. His refusal to comply with the rule caused him to lose his job, which the employer fully intended to restore to him after he had complied with the rule. The employer unambiguously demonstrated that it acted reasonably, and that because of the applicant's actions it had good cause not to rehire him. There is no credible evidence that the applicant's work injury was a motive entering into the employer's actions, or that the employer acted in anything other than good faith.
The administrative law judge found that the employer had not explained how an overnight driving trip was necessary to evaluate the applicant's fitness to drive over the road, after he had been away from his driving duties for six months. However, the employer's safety director, Dan Garcia, explained:
"I told him as per policy he would have to go out on a check-ride with one of our certified driver trainers, and that trip would consist of at least an overnight trip, and it was to reevaluate his skills for safety purposes so that we were ensuring the safety of the public."
When asked why the employer could not have just made an exception to the policy for the applicant, Garcia explained:
"Because it applies to everybody; that policy is set in place to protect people and the public, we have to make sure that the trucks that we put out there on the road and the drivers we put in those trucks on the road are qualified, safe drivers, and the road test, the brief road test that is done in orientation does not suffice to that, it doesn't give us enough information to know that the driver and the truck is qualified to fully handle the day-in and day-out duties of that job." (TR 66)
The employer's worker's compensation administrator, Cindy Vogel, also explained:
"Because the whole idea of the skills assessment trip is these people are off for ... and out of the tractors and off the public highways for a given period of time which can even change seasons, you know, they may get hurt in the summertime, they return when the road changes, do they have these skills, can they get in and out, are they safe, have they recovered to the point where they can operate this vehicle? No, we can't make an exception." (TR 80)
The employer's rule requiring an overnight road trip was reasonably related to safety concerns, and particularly in the applicant's case, given the fact that he had been away from over-the-road driving for six months. The employer presented unrebutted evidence that the rule had been in force without exception for almost 20 years,(1) and required the skills assessment trip to be taken after an absence of two months or more.(2)
The administrative law judge also found that "alternatives were not explored" by the employer. However, Wis. Stat. § 102.35(3), establishes a "reasonable cause" standard. It cannot reasonably be read to require an employer to forego a safety requirement that the worker is entirely capable of fulfilling. The only reason the applicant refused to take an overnight, over-the-road trip assessment was because he did not want to absorb the cost of the additional nursing care for his father that such a trip would have required. He told the safety director he would go on the trip if the employer would pay for the additional nursing care the trip would require for his father (TR 58). His father had been receiving "State-sponsored" nursing care overnight all the time the applicant worked for the employer prior to his work injury, because the applicant drove an overnight route. The additional nursing care would have been needed for daytime hours during which the applicant would have been gone on the skills assessment trip. It is unclear just how many days the trip would have taken. When asked, Garcia testified that it would have been no more than five days, and in most cases such trips lasted fewer than five days. No detailed discussion concerning the trip took place because the applicant flatly refused to go on any overnight assessment trip (TR 14-15, 32-33, 57). Simply put, the applicant's stance in the matter left no alternatives to be explored.
The applicant acknowledged on cross-examination that he telephoned "Social Services" and asked about obtaining daytime nursing care for his father on a short-term basis, and he was told that he would have to contact a private or religiously-sponsored healthcare agency (TR 92-94). That would have meant he and/or his father would have had to have picked up the cost of the additional care themselves. While I sympathize with the financial burden this would have entailed, it amounted to a short-term, personal financial responsibility assignable to him and to his father, not a responsibility that can reasonably be assigned to the employer.
There is no credible evidence in the record that the employer evinced any discriminatory intent against the applicant due to his work injury. The employer assisted the applicant in recovering from that injury by providing sedentary work when he needed it. When the applicant received his medical release for regular duty on February 27, 2006, the employer immediately began the training process necessary to restore him to his previous position. It gave the applicant a physical, put him through a three-day classroom orientation, and administered a short road test with a trainer.(3) All that remained for the applicant was to take the overnight, over-the-road skills assessment trip. It is unmistakably clear that the employer acted in good faith, and was ready and willing to bring the applicant back to his previous truck driving position. All it asked was for the applicant to complete the final requirement for reinstatement, a reasonable and universally-applied safety requirement that the applicant could have completed with a relatively minor reordering of his personal affairs.
The administrative law judge noted that Wis. Stat. § 102.35(3), should be liberally construed to effectuate its beneficent purpose of preventing discrimination against employees who have sustained compensable work injuries. Of course, I fully agree with this admonition set forth in the case law, and I consider myself to be vigilant in upholding the protection again unreasonable refusal to rehire established in the statute. However, liberal construction and application of the statute does not extend to misapplication of it, which I believe is the result of the majority decision. In this case the only credible evidence of record demonstrates that there was no violation of the statute.
Accordingly, I respectfully dissent from the majority decision.
/s/ Robert Glaser, Commissioner
Richard D. Weymouth
Appealed to Circuit Court. Affirmed. Appeal to Court of Appeals. Reversed and remanded, DeBoer Transportation v. Swenson and LIRC, 2010 AP 54, 324 Wis. 2d 485, 781 N.W.2d 709. Petition for review in Supreme Court accepted September 14, 2010. LIRC reversed (court of appeals affirmed), DeBoer Transportation v. Charles Swenson and LIRC, 2011 WI 64, 335 Wis. 2d 599, 804 N.W.2d 657
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(1)( Back ) See testimony at TR 60.
(2)( Back ) Respondent's Exh. 10, the employer's Professional Driver Workmanual, provides at page 55: "Drivers who are off work for any reason for more than two months are required to complete orientation and begin as a second seat driver and progress through the regular procedures to regain the necessary skills that were not used while off work."
(3)( Back ) It is evident that the three-day classroom orientation took place during the daytime, from which I must infer that the applicant was able to secure daytime nursing care for his father when he chose to do so.