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


RICHARD PERGANDE, Applicant

STOUGHTON TRAILERS INCORPORATED, Employer

WORKER'S COMPENSATION DECISION
Claim No. 93-018851


An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development (Department of Industry, Labor and Human Relations prior to July 1, 1996) 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 the applicable law, records and evidence in this case, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

I. Procedural Background

The application in this matter was filed in March of 1993 and listed a date of injury of June 13, 1991, a last day of work before disability of July 1, 1991, and date of notice of injury to the employer of June 13, 1991. Five percent PPD at the left wrist was claimed. The application indicated that the claim had been denied due to a dispute between the insurance companies as to the date of injury. EBI was on the risk in 1989 and Liberty Mutual was on the risk in 1991. In its answer Liberty Mutual requested that EBI be impleaded based on an original injury date of April 4, 1989. Thereafter the department made EBI a party. A department order dated July 27, 1994, approved a limited compromise by which it was agreed to adjust the applicant's claim based upon an alleged July 13, 1991, injury. The limited compromise did not definitely determine an injury date or dates.

Prior to testimony the parties stipulated to jurisdiction, an arbitrarily determined average weekly wage of $342.00, bringing the total amount in controversy, i.e., one year's wages, to $17,784.00, and the applicant was discharged on October 14, 1991. In dispute was liability under Wis. Stat. 102.35 (3), and whether the full amount in dispute had accrued. In an order dated October 4, 1995, the administrative law judge dismissed the application.

This matter is back before the commission following the setting aside of the administrative law judge's original order and remand for further proceedings. The commission remanded this matter because the administrative law judge did not determine the date of injury for applicant's claimed occupational injury. Instead, the administrative law judge dismissed applicant's claim finding the record did not support a date of injury of April 4, 1989, a date impleaded at an insurer's request, and the date of injury pled in the application for hearing, June 13, 1991, occurred after the dates of absence at issue, June 11 and 12, 1991. The commission remanded the matter for the administrative law judge to determine the date of injury. Further, the commission noted that the determination of an occupational disease injury date does not preclude a finding that absences occurring prior to that date were due to a work-related injury.

The administrative law judge, by agreement of the parties, did not hold further hearing but based his new order on the evidence previously presented. The administrative law judge in his order dated October 21, 1996, again dismissed the application, finding that the applicant had failed to carry his burden of proof in establishing an injury of June 13, 1991 and also an injury date of April 4, 1989.

II. Merits

Applicant worked from August of 1988 to October of 1991 for the employer. Up until June of 1991 he worked as a spray painter. On March 31, 1989 applicant was seen by Dr. Horswill for complaints of left-hand numbness. He was taken off work for three weeks and placed in a wrist brace. An EMG was scheduled for April 7, 1989. A treatment note dated April 17, 1989, noted that the EMG showed mild carpal tunnel syndrome. Applicant returned to work on light duty on or about April 17. Applicant was released to return to his regular job, per his request, on April 24, 1989.

Applicant continued to have problems with his wrist which increased on or about June 9, 1991. On June 11, 1991, the applicant's left wrist reached the point where it would not work. Applicant reported this fact to an individual he believed to be a supervisor, Mr. Manievich, and was allowed to leave work early on that date. Applicant worked second shift and went to bed when he got home. He was assessed one-half occurrence for leaving work early. On June 12, he made an appointment to see his doctor, and the earliest he could get in was June 13.

Applicant telephoned the employer's human resources receptionist in the morning of June 12 and notified the receptionist that he had an appointment with his doctor on June 13 for his carpal tunnel. The applicant asked the receptionist what paperwork he would need to have for worker's compensation. The applicant indicated that he would like to see the employer's nurse, Ms. Ott, and have her take a look at him. Applicant saw Ms. Ott in the afternoon of June 12 and informed her that he had a recurrence of his carpal tunnel and would be going to his doctor on June 13. Applicant informed Ms. Ott that he did not want to work until he saw his doctor because he did not want to "ruin" his wrist. Ms. Ott informed the applicant that the absence would be an occurrence unless his doctor "covers" it. Applicant did not work on June 12. He was assessed a full occurrence for his absence.

Applicant did see Dr. Horswill on June 13. Applicant did not work on June 13. Applicant was initially taken off work for three weeks but on June 14 was released to return to light- duty/one-handed work on June 17 pending his surgery. Applicant did work up to his date of surgery sorting nuts and bolts.

On July 10, 1991, Dr. Horswill performed surgery on applicant's wrist. Applicant took vacation time to get paid while off work. Applicant returned to work in assembly, which he had requested.

The employer has a no-fault attendance policy. The applicant worked for the employer pursuant to a labor agreement which, among other things, outlined the attendance policy and manner in which its Attendance Review Board functions. Certain absences do not result in an occurrence, including those for work-related injuries, family medical leave, and death of a family member. An absence with a doctor's excuse is charged an occurrence, unless the absence involves hospitalization. The accumulation of 6 occurrences results in discharge. If a worker has 60 days without an absence or tardy the worker gets one point back. Four months without an absence or tardy eliminates all occurrences. In the employer's April of 1991 edition of the company newsletter, the Trailer Tribune, the employer notified workers of some changes to its attendance policy including that "Work related injuries or illnesses that are not reported on the day they occurred are now counted as an occurrence. . . ."

The applicant was discharged on October 14, 1991, by his supervisor at the time, Darryl Klemp, because he had reached 6 occurrences during the period of May 22, 1991 to October 14, 1991.

After his discharge applicant received unemployment insurance benefits of $198 per week for benefits totaling approximately $9,000.00. In August or September of 1992 applicant obtained work with Newco Engineering, originally it appears through a temporary help agency, until he was discharged in October of 1994.

Applicant's treating doctor, Dr. Horswill, completed a 16-B dated March 16, 1993, in which he indicated that he had been treating applicant for left carpal syndrome since March 31, 1989. Dr. Horswill indicated a date of disability from work of July 8, 1991, and assessed 5% PPD to the left hand and wrist.

Dr. Horswill first began treating applicant for left hand complaints, ultimately diagnosed as carpal tunnel syndrome, on March 31, 1989. Dr. Horswill noted on April 17, 1989 that an EMG showed mild CTS. The records further reflect that applicant was off work in March, April, and August of 1989.

Dr. James White, a hand surgeon, completed a 16-B with attached medical report on behalf of EBI, dated June 7, 1994. In that report Dr. White notes that applicant first treated with Dr. Horswill for CT complaints on March 31, 1989, and that an EMG compatible with mild CTS on the left was conducted on April 7, 1989. Dr. White also noted that Dr. Horswill took applicant off work for three weeks. Dr. White noted that applicant went treatment free from August 26, 1989 to June 13, 1991. Dr. White noted applicant's subsequent treatment beginning in June of 1991, and his July 10 surgery. Dr. White also noted that on December 23, 1993, Dr. Horswill issued a letter to EBI stating that the 1991 surgery was due to the applicant's 1989 work exposure. In Dr. White's opinion:

". . . this claimant had indeed developed a left CTS in his dominant left hand as a result of his painting duties at Stoughton Trailers in 1989. The condition then stabilized and did not progress until he was placed back in the painting duties, namely the specialty painting working with the cup gun in 1991 when he himself stated he noted sudden pain in his wrist. This was clearly a re-aggravation of a previously existing condition with definite acceleration beyond normal progression. This obviously led to surgery in July, 1991.

It is this reviewer's opinion that the initial causation would be the responsibility of the workers' compensation carrier back in 1989. Equally important however is the fact that the condition accelerated beyond normal progression due to the work exposure in June of 1991. Had it not been for this increased work activity, there is no evidence to suggest that the symptoms would have progressed, worsened, or that surgery would have been necessary.

Dr. White also assessed 1% PPD of the left hand as compared to amputation at the wrist.

Dr. Joseph Burgarino also completed a 16-B, dated June 17, 1994, with an attached medical report. Dr. Burgarino likewise noted the 1989 treatment and diagnosis of CTS and subsequent July 1991 surgery. According to Dr. Burgarino applicant reported he was symptom free at the time of the exam. Dr. Burgarino opined that the applicant developed the initial signs and symptoms of CTS in 1989 and therefore the syndrome must be considered preexisting as far as Liberty Mutual is concerned. Dr. Burgarino further stated that the condition was temporarily aggravated, but not beyond normal progression, by the subsequent work exposure at Stoughton Trailers. Dr. Burgarino concluded that applicant had suffered no PPD, had reached an end in healing, and needed no further medical treatment.

The first issue is whether applicant sustained an occupational work injury and, if so, the date of that injury.

The commission finds based on the applicant's testimony and opinions of Doctors Horswill, White, and Burgarino that applicant sustained an occupational injury to his left wrist a result of his employment. The commission further finds a date of injury of March 31, 1989. That is the date the applicant sought medical treatment for his wrist and experienced a wage loss due to his carpal tunnel syndrome. Applicant's later treatment and lost work time was a recurrence of the occupational injury first diagnosed, and for which applicant was taken off work, in 1989. In addition, applicant testified that he continued to experience problems with his wrist after his 1989 medical treatment.

The next issue is whether the employer by discharging the applicant unreasonably refused to hire him in violation of Wis. Stat. 102.35 (3) which provides in part:

"Any employer who without reasonable cause refuses to rehire an employee who is injured in the course of employment . . . has exclusive liability to pay . . . the wages lost during the period of such refusal, not exceeding one year's wages."

To establish employer liability under Wis. Stat. 102.35 (3), in cases where the employer has not conceded that the employe's injury was the reason for the failure to rehire, the employe has the burden of showing that he was an employe, that he sustained a compensable injury, and that he was refused rehire. Once the employe meets his prima facie case, the burden shifts to the employer to establish reasonable cause not to rehire the employe. Dielectric Corp. v. LIRC, 111 Wis. 2d 270, 278 (Ct. App. 1983); West Bend v. LIRC, 149 Wis. 2d 110, 123 (1989). Based on the above factual findings, the commission determines that the applicant has met his prima facie case.

In Great Northern Corp. v. LIRC, 189 Wis. 2d 313 (Ct. App. 1994), the court dealt with the issue of whether an employer can carry out an attendance policy that includes absences due to work-related injuries as part of the total number of absences allowed before termination. The court affirmed LIRC's conclusion that when a work-related injury is used in part as a basis for firing, even when used only as a cumulative tool, the employer violates Wis. Stat. 102.35 (3). The court stated that while there is nothing in the law which prohibits an employer from recognizing the accident prone, Wis. Stat. 102.35 (3), prohibits an employer from acting upon that recognition by terminating those who had work-related accidents.

The employer maintains that the applicant was properly assessed an occurrence under its policy because he did not report his June 11 partial absence due to his wrist injury to a supervisor. Assuming it was proper for the employer to assess an occurrence on June 11 because applicant gave notice of injury to the wrong individual, applicant clearly gave the notice required under the employer's policy on June 12. On June 12 the applicant contacted the human resources receptionist and indicated that he was suffering from the effects of his carpal tunnel syndrome and inquired as to what he needed to do for worker's compensation purposes. The employer maintains that such absence was not counted as a worker's compensation injury because he was offered work by the nurse and had not seen his doctor.

First, while the employer maintained that one-handed work was available, it did not establish that the applicant was informed that such work was being offered. Ms. Ott's notations simply reflect that applicant was told that he would get an occurrence if he did not work unless his doctor covered the absence. No mention is made of an offer of light-duty work.

Second, the commission finds that it is unreasonable to expect a worker suffering the effects of a work injury to rely on the employer's medical opinion of his ability to work, rather than on his own doctor's opinion. The applicant was not required to work until he was able to see his doctor. Further, the employer received confirmation from Dr. Horswill on June 13 that applicant was suffering from the effects of carpal tunnel syndrome. Indeed, his doctor initially took him off work completely. It was unreasonable to assess an occurrence for the applicant's June 12 absence given the facts known to the employer on June 12 and June 13. Finally, the commission notes that the employer's policy contains no statement indicating that an employe must be totally incapacitated or see a doctor on the day of absence in order for the absence to be "covered."

The commission finds that the employer impermissibly counted the applicant's June 12 absence due to a work-related injury as an occurrence and by doing so violated Wis. Stat. 102.35 (3), as interpreted by the court in Great Northern. The employer impermissibly counted the June 12 absence in implementing its attendance policy which resulted in applicant's discharge and by doing so unreasonably refused to rehire the applicant.

ORDER

The findings and order of the administrative law judge are reversed. This matter is remanded to the Worker's Compensation division to determine the wages lost during the refusal to rehire period.


Dated and mailed June 5, 1997
pergari.wrr : 132 : 11   ND 7.25 7.32

Pamela I. Anderson, Chairman

David B. Falstad, Commissioner

MEMORANDUM OPINION

The commission did not speak with the administrative law judge regarding witness credibility and demeanor. The commission has not made any credibility determination contrary to findings made by the administrative law judge. The administrative law judge found that the record did not support the injury dates pled and impleaded in the application for hearing. The commission disagrees with the administrative law judge that an applicant must pick the correct date of injury for an occupational disease case or risk dismissal of his application.

The responsibility for determining the correct date of injury rests with the administrative law judge and, on appeal, the commission. There have been numerous occupational injury cases where the administrative law judge, the commission, and/or the courts have determined a date of injury other than that alleged by the applicant. Such determination did not result in dismissal of the application. The employer was put on notice that the applicant was claiming an occupational injury, in the nature of carpal tunnel syndrome, and that the occupational exposure related to his job duties during 1989 and/or 1991. In this regard, the commission notes that there is medical support and wage loss in for a date of injury in 1991, specifically June 11, 1991. In either case, the date of injury precedes June 12, 1991, a fact that would be more significant if the commission were to agree with the administrative law judge that a worker cannot be absent due to the effects of a work injury prior to the date of injury as defined in Wis. Stat. 102.01.

cc: ATTORNEY RICHARD R MCCUE JR

ATTORNEY JAMES E HAMMIS
STOUGHTON TRAILERS INCORPORATED


Appealed to Circuit Court.  Affirmed February 27, 1998.

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