Windus, 121418 WIWC, 2017-004763

Case DateDecember 14, 2018
CourtWisconsin
JEFFERY WINDUS Applicant
ADS WASTE HOLDINGS INC Employer
No. 2017-004763
Wisconsin Workers Compensation
State of Wisconsin Labor and Industry Review Commission
December 14, 2018
          Attorney Gordon R. Leech           Attorney Erik K. Eisenmann           WORKER’S COMPENSATION DECISION 1           Georgia E. Maxwell, Chairperson.          Interlocutory Order          The commission reverses the decision of the administrative law judge. The employer unreasonably refused to rehire (discharged) the applicant on January 26, 2016, after his work injury of the previous day, within the meaning of Wis. Stat. §102.35(3).          Due to a lack of competent evidence in the record to support a finding of the applicant's average weekly wage, or to support a finding of the exact amount of lost wages incurred as of the hearing date, the matter is remanded to the department for resolution of those issues.          So that this order may be appealable, the employer is ordered to pay to the applicant within 30 days from this date the sum of Four Hundred dollars ($400.00) towards lost wages; and to applicant's attorney, Gordon R. Leech, fees in the amount of One Hundred dollars ($100.00), and costs in the amount of Twenty-Eight dollars and Twenty-Five cents ($28.25).          This order is interlocutory solely with respect to any dispute which may arise concerning either the issue of average weekly wage, or the issue of the amount of lost wages that are attributable to the violation of Wis. Stat. §102.35(3). This includes any lost wages that may be incurred subsequent to the hearing date of July 6, 2017, not in excess of the maximum limit of one year's wages.          By the Commission:           Laurie R. McCallum, Commissioner, David B. Falstad, Commissioner          Procedural Posture          On February 20, 2017, the applicant filed a hearing application alleging that the employer violated Wis. Stat. §102.35(3), by unreasonably refusing to rehire him (discharging him) subsequent to his work injury of January 25, 2016. The employer disputed the claim and a hearing was held on July 6, 2017, before an administrative law judge (ALJ) for the Department of Administration, Division of Hearings and Appeals, Office of Worker's Compensation Hearings. On January 3, 2018, the ALJ issued a decision dismissing the applicant's claim. The applicant subsequently filed a timely petition for commission review.          The commission has reviewed the evidence submitted as the record of hearing, considered the petition and the positions of the parties, and consulted with the ALJ regarding the credibility and demeanor of the witnesses. Based on its review, the commission makes the following:          Findings of Fact and Conclusions of Law          1. The applicant was hired by the employer on November 9, 2015, as a commercial waste truck driver. This involved operating a truck with a loading device that lifted large waste receptacles and dumped the contents into the truck. On or about November 19, 2015, the applicant was driving the truck into a dock area to make a pick up, while an individual who was accompanying him for training purposes was outside the truck guiding him into the dock. The stop was not intended to be serviced by front-loading trucks such as the one the applicant was driving that day, but he was nevertheless told to make the stop.2 In an area where the applicant s vision was blocked, his truck contacted the customer’s building and put "a little puncture mark” in the aluminum siding.3 On November 25, 2015, he was given a “Documented verbal coaching for this “preventable accident or injury.” 4          2. On November 30, 2015, the applicant was attempting to steer a truck up to a dumpster at UW Milwaukee when his partner inside the truck warned him he was getting close to a concrete pole.5 He stopped the truck and they both got out and looked at the pole. The applicant observed no indication that he had made contact with the pole, and observed no damage to it or to the truck.6 His co-worker nevertheless advised him to call their supervisor, Chad Siegel, to come and take a look because there were surveillance cameras in the area and a complaint could be filed.7 There is no competent evidence of record to indicate that Siegel observed any damage to the pole;8 however, Siegel and one of the employer s human resources representatives issued a written warning to the applicant dated December 1, 2015, on which a box was checked indicating: "Preventable accident or injury."9 The applicant was very upset with this warning because he believed it was not justed.[10] Nevertheless, Siegel transferred the applicant to a residential pick-up position that involved manually picking up discarded items and loading them into the back of the truck that he drove.11          3. On January 25, 2016, the applicant was dispatched to drive his truck to a condominium complex and pick up some discarded furniture items.12 He arrived at the site and loaded up some of the furniture from a waste corral. Then he drove over to another corral where he saw a large entertainment center that needed to be picked up, but there was a large, old-model TV in front of the entertainment center.13 The applicant knew he was not supposed to pick up electronic items such as a TV with the truck he was driving, and he also knew he was not supposed to attempt to pick up items that were too heavy to lift. In accord with company policy he telephoned the dispatcher to tell him about the TV, and that he would get it the following day.14 During the call he also informed the dispatcher that he would have to move a large TV out of the way in order to get to the entertainment center, and the dispatcher told him that would be okay.15          4. The applicant did not attempt to lift the TV but was able to "scoot it or walk it” about 3 feet out of the way so that he could get to the entertainment center.16 It took him approximately an hour to dismantle and load the entertainment center, and then he...

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