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...