State of Wisconsin

Labor and Industry Review Commission

Timothy S. Rodey Worker’s Compensation

Applicant Decision 1

Marten Transp., Ltd.

Respondent/Self-Insured Employer Dated and Mailed:

September 30, 2019

Claim No. 2017-005621

Interlocutory Order
The commission modifies and affirms the decision of the administrative law judge.
Accordingly, within thirty (30) days from the date of this order, the respondent shall
pay:

1. To the applicant, the sum of twenty-four thousand, five hundred ninety-seven

dollars and eighty-eight cents ($24,597.88).

2. To the Wisconsin Support Collections Trust Fund, the sum of three thousand,
ninety-eight dollars and twelve cents ($3,098.12).

3. To the applicant’s attorney, Jeffrey Klemp, the sum of six thousand, nine
hundred twenty-four dollars and no cents ($6,924.00) in attorney fees.

The employer shall be liable for any additional wage loss the applicant suffered
greater than thirty (30) weeks, up to the maximum of $60,008.00 ($1,154.00 x 52
weeks). This order is interlocutory to allow the parties to submit a stipulation to the
Department of Administration, Division of Hearings and Appeals, Office of Worker’s
Compensation Hearings (Division), as to the length of any additional unemployment.
If a stipulation cannot be reached, the Division shall set the matter for hearing on
the issue of the length of the applicant’s unemployment and to obtain evidence
regarding child support liens. Jurisdiction is thus reserved for such further findings
and orders as to the applicant’s wage loss as a result of the employer’s unreasonable
refusal to rehire that may be necessary consistent with this order.

1Appeal Rights: See the yellow enclosure for the time limit and procedures for obtaining judicial review
of this decision. If you seek judicial review, you must name the following as defendants in the summons
and the complaint: the Labor and Industry Review Commission, and all other parties in the caption
of this decision or order (the boxed section above). Appeal rights and answers to frequently asked
questions about appealing a worker’s compensation decision to circuit court are also available on the
commission’s website, http://lirc.wisconsin.gov.
By the Commission:
/s/
Michael H. Gillick, Chairperson

/s/
David B. Falstad, Commissioner

/s/
Georgia E. Maxwell, Commissioner

Procedural Posture
In March of 2018, the applicant filed a hearing application seeking a penalty against
the employer for failure to rehire pursuant to Wis. Stat. § 102.35(3). An
administrative law judge for the Department of Administration, Division of Hearings
and Appeals, Office of Worker’s Compensation Hearings, heard the matter on
September 5, 2018, and issued a decision dated January 22, 2019, finding that the
employer discharged the applicant without reasonable cause within the meaning of
Wis. Stat. § 102.35(3). The respondent filed a timely petition for review.

Prior to the hearing, the respondent conceded jurisdictional facts, an average weekly
wage of $1,154.00, and that the applicant sustained a compensable industrial injury
on February 24, 2017. The issue is whether the employer is liable under Wis. Stat.
§ 102.35(3) for up to one year’s wages because of the employer’s discharge/refusal to
rehire the applicant following the industrial injury, i.e., whether the employer
terminated the applicant without reasonable cause. The commission has considered
the petition and the positions of the parties, and has independently reviewed the
evidence. Based on its review, the commission modifies and affirms the decision of
the administrative law judge.

Findings of Fact and Conclusions of Law

As supplemented by the commission’s memorandum opinion, 2 the commission makes
the same findings of fact and conclusions of law as stated in the decision of the
administrative law judge and incorporates them by reference into the commission’s
decision, subject to the following:

Modifications
On page 2 of the decision, in the first and second sentences of the second full
paragraph of the Findings of Fact and Conclusions of Law, replace the word “divers”
with “drivers.”

2 The commission’s memorandum opinion may be the basis for more formal findings of fact. Manitowoc
Boiler Works v. Indus. Comm’n, 165 Wis. 592, 594-95, 163 N.W. 172 (1917).
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 Memorandum Opinion
The applicant, who was born 1967, worked as a truck driver for the respondent for
about two years when he bruised his ribs when he tripped over a pallet and fell. The
applicant reported the injury. When he returned to work four days later, he submitted
to a drug test and sought medical treatment. The employer ran an Insurance Services
Office or “ISO” report and discovered apparent discrepancies between the report and
the applicant’s application materials regarding his health history and prior worker’s
compensation claims. The employer terminated the applicant the next day for giving
false information to the employee responsible for records or failure to provide
accurate and complete information when requested by the employer. The applicant
claims that the employer terminated him without reasonable cause because he
provided accurate information to the employer to the best of his knowledge, and the
employer did not verify information in the ISO report. The respondent argues that
the applicant provided false information, and that it followed its established protocol
before terminating the applicant; therefore, the respondent asserts that it terminated
the applicant for reasonable cause.

The Applicant’s Employment, Injury, and Termination

The applicant began working for the employer in 2015. On the Prework Screen Health
History Questionnaire, signed by the applicant on February 8, 2015, the applicant
checked the boxes “No” for the questions, “Have you had any illness or injury in the
last 5 years?” and “Shoulder problems” listed under “MUSCULOSKELETAL
DISORDERS AND CONDITIONS.” 3 The applicant testified that he marked the “No”
box that he had not had any illness or injury in the last five years. 4 He also testified
that he was not having any shoulder problems on February 8, 2015, though he did
have a shoulder surgery in 2012. 5

The applicant had a medical evaluation two days later. On the Medical Examination
Report signed by the applicant on February 10, 2015, 6 the health history has lines
drawn through all of the boxes on the “No” column for all of the health conditions,
including “Any illness or injury in the last five years.” The heading of the health
history section states that the “Driver completes this section, but medical examiner
is encouraged to discuss with driver.” 7 The applicant testified that he did not draw
the lines through the column for “No” answers; he stated that he marked Xs, so he
did not know who drew the lines. 8 If he had completed the medical form, he would
have indicated that he had not suffered any illness or injury in the last five years
because he had not had any. 9

The applicant was offered employment and on a Post Offer Supplemental Health
History Questionnaire (undated), the applicant circled “No” for all of the questions,
3 Exhibit (Ex.) 6.
4 Transcript of Proceedings dated September 5, 2018 (Tr.), p. 67.
5 Tr., pp. 67-68.
6 See Ex. 5.
7 Ex. 5.
8 Tr., p. 66.
9 Tr., p. 66.

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including “In your lifetime, have you ever….Filed a worker’s compensation claim?”
and “Have you ever missed time from work due to a work injury?” 10 The applicant
testified that he had never had a serious injury, he had never missed any work due
to a physical injury or a work injury, and he had never filed a worker’s compensation
claim before this one. 11 He was in an auto accident at one time, but he was not injured;
he did not consider the bruises on his shins from the accident to be “injuries.” 12

When he was hired, the applicant signed an employee manual. The Driver Employee
Manual, Revision Date, December 2016, is 162 pages. 13 The relevant provisions are
on pages 37 and 38 regarding Employee Conduct and Discipline. In relevant part, the
Manual provides:

To assure orderly operations and provide the best possible work

environment Marten Transport expects employees to follow rules of
conduct that will protect the interests and safety of all employees and
the employer. It is not possible to list all the forms of behavior that are
considered unacceptable in the work place, but the following are
examples or infractions of rules of conduct that may result in
disciplinary action, including suspension or discharge:
***
• Giving false information to employee responsible for records or
failure to provide accurate and complete information when
requested by the Company 14

The Manual continues to state that the employer reserves the right to deal with each
infraction on a case-by-case basis and may determine that a particular incident may
require more or less severe discipline. It states that “In situations relating to
behavior, performance, attendance, etc., the following guidelines are likely to be
followed at the discretion of Marten Transport,” and it then lists a verbal warning,
and three levels of written warnings. 15

The applicant acknowledged receipt of the policies and procedures in the Employee
Manual. The acknowledgement specifically stated:

I have been advised of the policies and procedures set forth in, and have
read, the Driver Employee Manual and the applicant manual
supplement of the state out of which my work for Marten Transport is
based (collectively, the “Employee Manual”). I acknowledge that it is my
responsibility to ask questions about anything that I do not understand

10 Ex. 7.
11 Tr., pp. 68-69.
12 Tr., pp. 69-70.
13 Ex. 2.
14 Ex. 2, p. 37. This was the only basis on which Ms. Bauer made the decision to terminate the

applicant. Tr., p. 95.

15 Ex. 2, p. 38.

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 regarding the information presented in the Employee Manual. If I have
not asked any questions, it is because I understand the contents of the
Employee Manual and agree to abide by the policies, practices and
procedures set forth in the Employee Manual. I further understand that
the procedures, working conditions, benefits, and policies described in
the Employee Manual are subject to change at any time by Marten
Transport. 16

On February 24, 2017, while working for the employer, the applicant tripped over a
pallet and bruised his ribs. 17 He continued working and notified dispatch. 18 Then he
finished his route and went home; he had four days off before he was scheduled to
work again. 19 When the applicant returned to work on March 1, 2017, he submitted
to a drug test and saw a doctor in Tomah. 20 The doctor took an x-ray and told the
applicant to take a week and a half off; the applicant then gave the off-work slip to
his employer. 21

On March 1, 2017, the applicant also signed the document in Exhibit B that asked
for a list of all medical/chiropractic providers in the last 15 years and for a list of all
health issues/conditions. 22 The applicant listed the rib injury in 2017 that is the
subject of this claim, a lump on the left side of his chest in 2015, a cold in 2013, a
shoulder surgery in 2012, a shoulder bursitis in “2008-2007?”, and a sinus infection
in “2007-2006?” On the second page of the document, he described the work injury:

I got unloaded at my second stop started back to the truck I triped [sic]
on a pallet. I noticed the pain when I got to my last stop. It was about
30 minutes later. I fell to the ground on my left side and left arm was
between the ground and my chest. 23

The respondent’s risk manager, Deborah Konkel, ran an ISO report on the applicant.
She explained the ISO report as a standard protocol with self-insured companies and
insurance companies throughout the country that is a sharing platform of
information regarding injury reports for insurance claims. 24 It is the respondent’s
standard practice to generate an ISO report for any employee who has a workplace
injury. 25 The employer does this to see past claims history to see if there’s a pattern,
if there have been similar injuries in the past, if the employee is still treating for a
similar injury, or to see if there is any past fraud or fraud. 26

16 Ex. 3.
17 Tr., p. 56.
18 Tr., p. 56.
19 Tr., p. 57.
20 Tr., p. 59.
21 Tr., pp. 59-60.
22 Ex. B.
23 Ex. B.
24 Tr., p. 20.
25 Tr., p. 79.
26 Tr., p. 79.

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The ISO ClaimSearch Match Report Summary for the applicant is Exhibit 1. The top
of the report states:

A claim report identified by ClaimSearch identification number

9S004287936 was received by ISO ClaimSearch on 3/2/2017 as a
Replacement of a previously submitted claim. Submission of this
replacement claim initiated a search of the ClaimSearch database. 27 The
claim(s) listed below appear(s) to be similar to the claim submitted.
Reasonable procedures have been adopted to maximize the accuracy of
this report. Independent investigations should be performed to evaluate
the relevant data provided. 28

The ISO report lists several insurance claims allegedly involving the applicant, based
on his name and social security number. Ms. Konkel or another adjuster marked
numbers next to the “Matching Claims” to identify the ones that involved alleged
worker’s compensation claims of the applicant. In addition to the incident that is the
subject of this hearing, the incidents listed on the ISO report included the following
loss dates, coverage type, loss type, and injury:

1. 03/23/1998 indemnity comprehensive No injury identified

2. 04/02/1995 indemnity comprehensive Toe(s) fracture
3. 08/13/2008 wc indemnity wc indemnity While doing
pre-shift stretching,
the ee experience [cut off]
4. 05/24/1995 indemnity comprehensive Chest including ribs,
sternum contusion 29
5. 04/10/2010 indemnity comprehensive Both shins bruised
6. 04/30/2003 wc medical wc medical Boat lift frame fell on
right foot fractured toe
7. 05/22/1996 indemnity comprehensive Knee sprain
8. 06/10/1992 indemnity comprehensive Hand contusion
9. 03/05/2002 indemnity comprehensive Fractured R little finger
10. 06/14/1995 indemnity comprehensive Lower leg laceration

The incident on April 10, 2010, involved the car accident where the applicant was a
passenger in the vehicle. Some of the information in the report refers to other persons
who were allegedly involved in the car accident at the same time as the applicant.

Ms. Konkel indicated that she or the adjuster investigated the ISO report on the
applicant. 30 However, when asked whether she talked with the employers or insurers

27 There was no testimony about the issue of a “resubmitted” claim, so there is no explanation for this

statement.
28 Ex. 1; emphasis added.
29 Note that number 4 is not marked. Ex. 1. See Tr., pp. 86-87.
30 Tr., p. 22.

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on the report, she responded that she did not recall; if she had talked to anyone, she
would have documented the conversation in her claim notes, but she did not bring
her claim notes to the hearing. 31 She testified that she “wouldn’t know” how many of
the employers or insurers that she contacted. 32 When asked how she verified that the
events documented in the ISO report occurred, she indicated, “I contact the insurer
to confirm the injuries because it’s true to what the date is reported.” When asked,
Who says it’s true? she responded, “The ISO claim search report.” 33 Ms. Konkel could
not say how much time she spent conducting her investigation. 34

After reviewing the ISO report, Ms. Konkel gave the ISO report and a copy of the
post-offer health questionnaire to the human resources senior generalist, Annette
Bauer. 35 Ms. Bauer reviewed the ISO report from the worker’s compensation
department, and the DOT physical, the post-offer supplemental health questionnaire,
and the prescreen health questionnaire from the applicant’s personnel file. 36
Ms. Bauer then made the decision to terminate the applicant. 37 She made this
termination decision within 24 hours of receiving the information from the worker’s
compensation department. 38 According to Ms. Bauer, she did not make the decision
to terminate because the applicant had filed a worker’s compensation claim. 39

Ms. Bauer did not verify the ISO report, and had no documentation that verified any
information in the ISO report. 40 Nevertheless, she indicated that she believed the
following information provided by the applicant was false:

On the health history box in Exhibit 5, the applicant indicated there was
no illness or injury in the last five years, and the ISO document showed
an illness or injury in 2010. 41 This was a motor vehicle accident in April
of 2010. 42 Ms. Bauer did not know if anyone had verified this injury. 43
She did not ask the applicant if he was injured, and did not know who
completed the ISO report. 44 She also did not ask the applicant to sign a
release for medical records for her to review the treatment records for
the bruised shins. 45 And Ms. Bauer never verified whether he actually
bruised his shins in the accident. 46

31 Tr., pp. 22-25, 28.

32 Tr., pp. 23-24.
33 Tr., p. 26.
34 Tr., p. 30.
35 Tr., pp. 29-30.
36 Tr., p. 37.
37 Tr., p. 35.
38 Tr., p. 39.
39 Tr., p. 92.
40 Tr., pp. 44, 52.
41 Tr., p. 41.
42 Tr., p. 43.
43 Tr., p. 41.
44 Tr., p. 44.
45 Tr., p. 45.
46 Tr., p. 45.

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 On the health history section in Exhibit 6, the applicant indicated that
he had not had an illness or injury in the past five years, but per the
ISO, he had had an illness or injury in the past five years, i.e., the shin
injury. 47

On the post-offer supplemental health history questionnaire in

Exhibit 7, the applicant answered “No” to all questions, and it was false
that he had not had a serious physical injury because he had been in the
car accident in 2010. 48 Also, the applicant marked “No” that he had
never filed a worker’s compensation claim and the ISO indicated that he
had had ten. 49 The questionnaire also asked if he had ever missed work
due to a work injury, and the ISO would indicate that there were several
claims that involved indemnity which would have involved lost work
time or possibly permanent partial disability. 50

When asked if she knew how the applicant would understand what filing a worker’s
compensation claim meant, Ms. Bauer responded, “I would not know what
Mr. Rodey’s comprehension of worker’s compensation is.” 51 Before terminating him,
Ms. Bauer did not ask the applicant if he had ever missed work due to a work injury,
if he had received permanent partial disability benefits as a result of a work injury,
or if medical payments had ever been paid due to a work injury. 52 The report lists
“indemnity,” but it does not list wage loss, 53 though that is how Ms. Bauer interpreted
it. 54 Nothing indicates if an injury was “serious.” 55

Ms. Bauer did not verify that the injuries occurred or know how it was verified or
documented that it was verified. 56 She terminated the applicant without verifying
the incidents in the ISO report, without meeting with anyone from the worker’s
compensation department, and without talking to the applicant first. 57 She did not
ask the applicant what his understanding was of an illness or injury. 58 Ms. Bauer
provided a list of 97 employees terminated for falsifying applications or company
records since 2015 when the applicant was employed, and through the time of the
hearing, which included the applicant. 59

47 Tr., p. 46.
48 Tr., p. 47.
49 Tr., p. 47.
50 Tr., pp. 47-48.
51 Tr., p. 49.
52 Tr., pp. 49-50.
53 Tr., p. 121.
54 Tr., p. 139.
55 Tr., p. 122.
56 Tr., pp. 140-141.
57 Tr., p. 142.
58 Tr., p. 144.
59 Ex. 8; Tr., pp. 51, 112.

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Ms. Bauer sent a letter to the applicant dated March 2, 2017, terminating his
employment: “Due to the violation of company policy regarding giving false
information to employee responsible for records or failure to provide accurate and
complete information when requested by the Company, Marten Transport, Ltd. feels
it is in the best interest of both parties to terminate our employee/employer
relationship effective today.” 60 According to Ms. Bauer, she spoke with the applicant
the day after she sent the termination letter:

I asked him about several injuries he had had prior. At the time of our
conversation he had replied he answered the document to the best of his
knowledge, I believe was his term. Then he also said that he had told
the doctor – and I presumed it was the DOT doctor – that he had had
shoulder surgery. And I’d asked him, That wasn’t indicated anywhere, I
didn’t know about a shoulder injury prior to coming to work at Marten.
So that’s not what I was discussing with him. 61

While she was talking with the applicant, Ms. Bauer indicated that the applicant also
recalled a Ferris wheel fall on his hand when he worked at a carnival. 62

According to the applicant, Ms. Bauer called him the day after he turned in the forms
on March 1 and told him he was terminated for falsification; she did not tell him what
he falsified or lied about. 63 He testified that he never received the written termination
letter that the employer sent. 64 After he was terminated, the applicant was
unemployed for about six months. 65 He picked up some temporary work and then was
out of work for a month and a half before he secured his current employment. 66

Analysis
The issue is whether the employer wrongfully refused to rehire the applicant by
terminating him after his work injury. Wisconsin Stat. § 102.35(3) provides:

Any employer who without reasonable cause refuses to rehire an

employee who is injured in the course of employment, when suitable
employment is available within the employee's physical and mental
limitations, upon order of the department or the division, has exclusive
liability to pay to the employee, in addition to other benefits, the wages
lost during the period of such refusal, not exceeding one year's wages. In
determining the availability of suitable employment the continuance in
business of the employer shall be considered and any written rules
promulgated by the employer with respect to seniority or the provisions

60 Ex. 4.
61 Tr., p. 36.
62 Tr., p. 36.
63 Tr., p. 63.
64 Tr., p. 64.
65 Tr., p. 71.
66 Tr., pp. 71-72.

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 of any collective bargaining agreement with respect to seniority shall
govern.

The purpose of Wis. Stat. § 102.35(3) is to protect injured workers. 67 In West Allis
Sch. Dist. v. DILHR, the supreme court stated, “It is clear from the plain words of the
statute that its purpose is to prevent discrimination against employees who have
previously sustained injuries and to see to it, if there are positions available and the
injured employee can do the work, that the injured person goes back to work with his
former employer.” 68 Therefore, the statute “must be liberally construed to afford the
aggrieved worker additional compensation.” 69

Wisconsin employs a burden-shifting approach when an employee brings a wrongful

refusal to rehire claim. In deBoer Transp., Inc. v. Swenson, the supreme court stated:

Under this approach, the employee must first make a prima facie case
of an unreasonable failure to rehire. It is undisputed that as a part of
the prima facie case, the employee must show that (1) the claimant was
an employee of the employer from which he or she seeks benefits; (2) the
claimant was injured in the scope of employment; and (3) subsequent to
the injury, the employer refused to rehire the employee. 70

In this case, the respondent agrees that the applicant was an employee with a
compensable injury who was discharged. Therefore, the burden then shifts to the
employer to show reasonable cause for its failure to rehire the applicant. 71
“Reasonable cause” means that if there is suitable employment available, an
employer can refuse to rehire only for a cause or reason that is “fair, just, or fit under
the circumstances.” 72 The statute does not require employers to change their
legitimate and universally applied business policies to meet the personal obligations
of their employees. 73

The respondent argues that it met its burden to establish reasonable cause to
terminate the applicant. According to the respondent, the undisputed evidence shows
that it has a longstanding policy that provides for termination for giving false
information; that it has applied the policy uniformly; that the ISO verified that the
applicant provided false information at the time of his hire, including failing to
disclose prior injuries and 10 worker’s compensation claims; and that it terminated
the applicant solely based on the rule infraction and not because he had been injured.
The respondent points out the policy language and that the applicant signed for
receipt of the policy, acknowledging that he understood it and agreed to abide by its

67 West Allis Sch. Dist. v. DILHR, 116 Wis. 2d 410, 422, 342 N.W.2d 415 (1984).
68 Id.
69 Id.
70 deBoer Transp., Inc. v. Swenson, 2011 WI 64, ¶18, 335 Wis. 2d 599, 804 N.W.2d 658 (citations

omitted).
71 See id. at ¶¶43, 46.
72 Id., citing West Allis, supra.
73 Id. at ¶45.

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terms. Ms. Bauer’s testimony demonstrated that she applied it consistently and
uniformly, and showed that she terminated other employees for falsifying records.
The respondent has the policy because they want honest employees, especially drivers
who represent the company and handle expensive trailers and cargo.

Regarding the ISO report, the respondent asserts that it is a standard protocol with
self-insured companies and insurance companies throughout the country when an
injury claim is initiated for reporting the incident. The report states that independent
investigations should be conducted, and the respondent did conduct an investigation,
including following its standard procedure to attempt to contact all of the employers
and insurers. The ISO reports are generated for any employee with a workplace
injury to see if there is a pattern with similar injuries or if the employee is being
treated for a similar injury, and to identify any fraud in the claim. In this case, the
respondent’s worker’s compensation department forwarded the report to its human
resources department to review the apparent inaccuracies. The ISO report was
compared with the applicant’s personnel file, found to be conflict with his application
and personnel documents, and Ms. Bauer concluded the applicant had falsified his
documents and terminated him. This was consistent with what she had done with
other employees who falsified documents. The respondent acknowledges that if there
had been only one or two false incidents, it may have been more reasonable for
Ms. Bauer to ask the applicant about them; however, when faced with ten incidents
that directly contradicted his application materials, she reasonably moved forward
with the termination decision. The absence of the investigation file does not negate
all of the other evidence produced at the hearing.

The respondent argues that the administrative law judge’s requirement that it
present firsthand evidence that the applicant falsified his records is not supported by
the caselaw. According to the respondent, testimony at the hearing established that
the ISO database requires reporting entities to act honestly, and such a regularly
used business document is reliable and admissible. From there, the respondent
asserts that the record was therefore sufficient to establish the prior injuries and
claims that the applicant failed to provide on his health questionnaires. The
administrative law judge erred, then, in ignoring the report because there were no
third-party witnesses to present firsthand testimony about the entries. Such a
requirement would require the respondent to compel the testimony of people from
several states, which it cannot do, so the test would be virtually impossible to meet.

The respondent cites deBoer Transp., supra, as holding that an employer may
establish that it acted with reasonable cause by showing that it acted without pretext
in compliance with a uniformly enforced procedure. The respondent argues that in
this case, it has met this burden. According to the respondent, the applicant is not
credible that he did not answer the questions on Exhibit 5. The respondent
terminated the applicant due to his own conduct falsifying records, and not because
he had a work injury.

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The applicant responds and argues that the ISO report was only obtained because of
the applicant’s injury, and the applicant was terminated because of the ISO report,
so it is disingenuous for the respondent to assert that the termination had nothing to
do with the applicant’s injury. According to the applicant, the ISO report verifies
nothing. The ISO report advises that investigations still need to be done to evaluate
the relevant data provided. In this case, the respondent asserted that it did an
investigation, but it failed to provide any evidence of an investigation: the
respondent’s witness could not recall if she had contacted anyone on the report, and
failed to provide her investigation notes, even though that apparently documented
her investigation. Neither of the respondent’s witnesses “verified” the ISO report. The
commission should liberally construe the statute to effectuate its purpose and find
that the respondent was not reasonable when it terminated the applicant.

According to the applicant, his termination was not “fair, just, or fit.” Ms. Konkel ran
the ISO report, alleges that she verified it, and then sent the report to human
resources, all on the same day. Ms. Bauer in the human resources department
reviewed the report, did not talk to the applicant, and terminated him that day. The
applicant had no disciplinary history and had not missed work. According to the
applicant, he would not have been terminated but for the work injury. The
termination cannot be “fair, just, and fit” because it was inextricably tied to the
applicant’s work injury. A termination cannot be reasonable when it is based on
interpretations and assumptions, or for reasons that are allegedly documented but
not produced at hearing.

Alleged False Health History Information

The respondent asserts there were three records that the applicant falsified regarding
his health history. First, the respondent alleges that the applicant lied on the health
history completed at the applicant’s physical in February of 2015. The respondent
alleges the applicant lied when he indicated that he did not have an illness or injury
in the last five years because he had had bruised shins in a motor vehicle accident in
April of 2010. While the accident was technically within five years (4 years and 10
months), the applicant’s uncontroverted, credible testimony is that he did not draw
the line through the columns indicating “No” to the medical conditions, including
whether he had an injury or illness in the last five years. It is entirely possible that
this was something completed by the medical examiner or someone else in the
medical facility. Therefore, the respondent did not prove that the applicant provided
false information on his health history form when he received his physical exam.

Second, the respondent alleges the applicant lied on the health history section in the
prework screen health questionnaire when he said he had no illness or injury in the
last five years because he had the shin injury. The applicant credibly testified that
he did not consider bruises on his shins to be “injuries,” 74 and it is plausible that he
would have honestly thought that a bruise was not something to report as an “injury.”

74 Tr., p. 70
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Ms. Bauer did not ask the applicant if he was injured in the accident and provided no
evidence that she verified that the applicant was injured. Ms. Bauer could have, but
did not, obtain a medical release to get the applicant’s medical records to show
documentation of the extent of the shin injury. Therefore, the commission finds that
the respondent did not prove that the applicant provided false information on the
prework screen health questionnaire.

Finally, the respondent alleges that the applicant lied on the post-offer supplemental
health history questionnaire because he answered “No” to all questions, and it was
false that he had not had a serious injury because he had been in a car accident in
2010. Again, the respondent failed to prove the applicant sustained a serious injury, 75
and the applicant’s uncontroverted testimony is that he did not consider the bruises
to be injuries. As a result, the commission finds that the respondent failed to prove
that the applicant provided false information about his health history in the post-
offer supplemental health history questionnaire.

Alleged False Information About Prior Worker’s Compensation Claims

The respondent also alleges that the applicant falsified records regarding whether he
had ever filed a worker’s compensation claim or had ever missed work due to a work
injury. The respondent relies on the ISO report to prove that the applicant had
numerous prior worker’s compensation claims that he did not disclose.

Though the ISO report is admissible, it is hearsay as to the matters asserted, and the
commission cannot rely on it solely to make a finding of fact. 76 Indeed, the details
about the alleged claims on the ISO report are not entirely clear. For instance, it is
not clear what the ISO report defines as a worker’s compensation “claim” or whether
a prior employer would have submitted a claim on the applicant’s behalf. Nor is it
clear if the applicant received worker’s compensation benefits or in what amounts,
though Ms. Bauer “interpreted” the reference to “indemnity” to mean that the
applicant had filed claims and received benefits for lost wages. However, these terms
can be subject to different interpretations. The incidents are apparently also not
reported consistently on the ISO report, and the differences are not explained. For
instance, coverage types are listed variously as “wc medical,” “indemnity,” “wc
indemnity,” and “bodily injury”; and loss types are listed as “wc medical,”
“comprehensive,” “wc indemnity,” and “bodily injury.” Only one claim lists an
“Estimated Loss” amount. The respondent failed to provide evidence that it had
actually verified the claims, e.g., showing specific documentation of the claims, or
even records of its contacts with other employers or insurers with details about the
alleged claims. The ISO report shows contact information, telephone numbers, and
file numbers for various claims, which would facilitate an investigation of the claims.
However, Ms. Konkel could not recall who she may have contacted to verify any of
the claims, and she did not bring her investigation notes to the hearing and they are
not in the record.

75 The “Settlement Amount” to the applicant for the automobile accident listed on the ISO report was

$478.00, which, if accurate, would not suggest a serious injury.

76 Gehin v. Wisconsin Grp. Ins. Bd., 2005 WI 16, ¶52, 78 Wis. 2d 211, 692 N.W.2d 572.

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The applicant testified that he never filed a worker’s compensation claim before and
that he never missed work for an injury before. The applicant may have been injured
on the job in the past and reported it to his employers, and may have even sought
medical treatment that was paid and uncontested, but he did not consider it filing a
worker’s compensation “claim” until he actually filed the hearing application in this
case. It is possible that the applicant’s prior employers filed claims on his behalf
without the applicant’s knowledge. The evidence is simply not sufficient to prove that
the applicant filed prior worker’s compensation claims, or that he provided false
information to the respondent regarding this. Based on this lack of evidence, the
commission finds the respondent failed to prove that the applicant falsified
information about prior worker’s compensation claims.

The respondent alleges that it followed its standard procedure to get the ISO report
and investigate it. The respondent cites deBoer to argue that it did not have to modify
its policy to show reasonable cause for terminating the applicant, but the facts in
deBoer were very different from the facts in this case. In deBoer, the court found that
the employer did not have to modify its safety policy to assist the employee for
personal care obligations. In this case, the commission is not faulting the employer
for not deviating from a safety policy for an employee’s convenience. Rather, the
commission finds that the respondent failed to produce the evidence needed to prove
that its actions were reasonable. The employer’s policy to run an ISO report is
reasonable, but even the report indicates that while procedures have been adopted to
“maximize the accuracy” of the report, independent investigations should still be
performed to evaluate the relevant data. The respondent did not prove it conducted
an independent investigation consistent with its policy and the warning on the ISO
report. The respondent’s witnesses either did not verify the report, or could not recall
what steps they took to investigate, or call or contact others, or even how much time
was spent investigating. There is nothing wrong with the policy per se, but failing to
conduct an investigation before terminating an employee is unreasonable, given the
language on the ISO report; and the employer failed to prove that it did so.

In this case, the respondent failed to prove that it followed its own policy and
conducted an investigation before terminating the applicant. As a result, the
commission finds that the employer’s termination of the applicant was not “fair, just,
and fit” under the circumstances. Accordingly, the commission affirms the
administrative law judge’s decision that the respondent’s termination was not shown
to be with reasonable cause.

cc: Atty. Jeffrey J. Klemp

Atty. Stephen A. Ditullio

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