Deboer Transp. Inc. v. Swenson

• Decision Date: 12 July 2011
• Docket Number: No. 2009AP564.,2009AP564.
• Citation: 2011 WI 64,335 Wis.2d 599,804 N.W.2d 658
• Parties: DeBOER TRANSPORTATION, INC., Plaintiff–Appellant,v.Charles SWENSON, Defendant–Respondent–Petitioner,Labor and Industry Review Commission, Defendant–Respondent.
• Court: Wisconsin Supreme Court

335 Wis.2d 599

804 N.W.2d 658

2011 WI 64

DeBOER TRANSPORTATION, INC., Plaintiff–Appellant,

v.Charles SWENSON, Defendant–Respondent–Petitioner,Labor and Industry Review Commission, Defendant–Respondent.

No. 2009AP564.

Supreme Court of Wisconsin.

Argued Jan. 06, 2011.Decided July 12, 2011.

For the defendant-respondent-petitioner there were briefs and oral argument by John R. Jokela, John Jokela Law Firm LLC, Wausau.For the Plaintiff–Appellant there were briefs and oral argument by Michael J. Lauterbach, Nash Law Group Attorneys at Law, S.C., Wisconsin Rapids.PATIENCE DRAKE ROGGENSACK, J.

We review a published opinion of the court of appeals ¹ reversing the circuit court's order ² affirming the Labor and Industry Review Commission's (LIRC) opinion and order requiring deBoer Transportation (deBoer) to pay Charles Swenson (Swenson) $36,193.66 in back pay for deBoer's unreasonable refusal to rehire Swenson following Swenson's work-related injury. The issue presented to this court is whether, under Wisconsin's worker's compensation statute, Wis. Stat. § 102.35(3) (2009–10),³ deBoer refused to rehire Swenson without reasonable cause. Specifically, we must determine whether, in reaching its conclusion that deBoer failed to show reasonable cause for its refusal to rehire Swenson, LIRC applied an unreasonable interpretation of § 102.35(3), or based its conclusion on findings of fact that were not supported by credible and substantial evidence in the record.

¶ 2 We hold that in reaching its conclusion that deBoer failed to show reasonable cause, LIRC applied an unreasonable interpretation of Wis. Stat. § 102.35(3). LIRC concluded that deBoer did not show reasonable cause because deBoer failed to adequately explain why it would be an unreasonable burden to change its check-ride policy so that Swenson could meet his personal care obligations. Section 102.35(3), however, does not require an employer to change its legitimate and long-standing safety policies in order to assist an employee in meeting personal obligations. Therefore, by adding this requirement into the statute, LIRC contravened the words of the statute.

¶ 3 Additionally, we hold that LIRC's conclusion that deBoer failed to show reasonable cause based on LIRC's finding that the check-ride policy was pretext, was not supported by credible and substantial evidence.

¶ 4 Accordingly, we affirm the decision of the court of appeals that remanded for dismissal of Swenson's claim against deBoer.

I. BACKGROUND

A. Facts

¶ 5 Many of the relevant facts are based on the findings of the Administrative Law Judge (ALJ) adopted by LIRC. However, because this case requires us to review whether LIRC's findings of facts are supported by credible and substantial evidence, we review the record independently. When we derive material facts from sources other than the ALJ's decision, we so note.

¶ 6 Wausau Carriers, a trucking company, hired Swenson as a truck driver in 2003. Swenson drove a commercial motor vehicle, i.e., a semi-truck with a sleeping area. Swenson drove a “daily” or “local” route, leaving around midnight and returning at 10 a.m. This route allowed him to be home during the day.

¶ 7 Driving a route that allowed Swenson to be home during the day was convenient for Swenson because he was the primary caregiver for his terminally ill father. Swenson was able to care for his father during the day and, therefore, did not need to hire a daytime nurse. However, because Swenson's father needed around-the-clock assistance, a state-provided nurse cared for him at night when Swenson was working.

¶ 8 On August 1, 2005, deBoer took over Wausau Carriers. DeBoer retained Swenson as an employee, and Swenson continued to drive the same route. Shortly thereafter, on August 23, 2005, Swenson sustained a work-related injury to his left knee.⁴ As a result of the injury, Swenson was unable to work until January 22, 2006. During the time he was unable to work, Swenson received worker's compensation benefits.

¶ 9 Initially upon returning to work, Swenson worked in deBoer's office. His doctors cleared him to return to his regular duties on February 27, 2006. When deBoer learned from the worker's compensation adjuster that Swenson was cleared to return to his regular duties, Cindy Vogel (Vogel), deBoer's worker's compensation administrator, sent Swenson a letter ⁵ explaining deBoer's reorientation process for drivers who have been off work, for any reason, for more than two months. Specifically, the letter advised Swenson to: “Please note your Professional Driver work manual, driver[s] off work for more than 2 months are required to complete orientation, complete a minimum of one trip with another driver to regain the skills necessary to safely operate a commercial motor vehicle and pass DOT re-certification tests.”

¶ 10 The manual referred to in Vogel's letter contains two provisions relevant to this appeal. First, under the section entitled “Work Related Accidents or Illnesses,” and the subsection “Employees returning to work,” the manual states that:

Drivers who are off work for any reason for more than 2 months are required to:

1. Complete orientation

2. Complete a minimum of one trip with another driver to regain the necessary skills that were not used while off work.

Second, under the section “Leaves of Absence” and the subsection “Workers' Compensation Leave,” the manual states, “Drivers who are [out] of work for any reason for more than 2 months are required to complete orientation and begin as a 2nd seat driver and progress through the regular procedures to regain the necessary skills that were not used while off work.”

¶ 11 In addition to referencing the orientation requirements set forth in deBoer's manual, Vogel's letter notified Swenson that arrangements for his re-certification drug-test and classroom orientation had been made for Monday, February 27, and Tuesday, February 28. Swenson complied with deBoer's orientation requirements scheduled for the week of February 27. He took the drug-test and participated in the classroom training. In addition, he completed the road test required by the Department of Transportation (DOT). The DOT road test took approximately 15 minutes and included driving a commercial truck down a highway, turning the truck around, and backing it up. ⁶ Swenson passed this test.

¶ 12 When Swenson completed the orientation, Dan Garcia (Garcia), deBoer's safety director, contacted Swenson and advised Swenson that pursuant to deBoer's safety policy, Swenson was required to go on an overnight check-ride with a certified driver before returning to work. Swenson was told the check-ride could last anywhere from a few days to weeks. Upon learning that the check-ride would potentially require him to be away from home for an extended time period, Swenson informed Garcia that he would be unable to do the check-ride because he needed to be home daily to care for his ailing father. Swenson requested that Garcia find someone to train him locally or, in the alternative, that deBoer pay for a nurse to care for his father while he was on the check-ride.

¶ 13 DeBoer was unwilling to accede to Swenson's requests. Garcia testified that he was unable to consent to Swenson's first request because none of the drivers currently driving day routes were “driver trainers.” ⁷ He explained that deBoer had already dispatched a driver from out-of-state to come to Wisconsin to take Swenson on his check-ride. DeBoer also refused to cover the expenses of a day nurse to care for Swenson's father while he was away on the check-ride.

¶ 14 Swenson investigated the cost of hiring a daytime nurse to care for his father. Finding daytime assistance too costly, Swenson again refused to complete the check-ride. Following Swenson's refusal to go on the check-ride, deBoer discharged Swenson.

B. Procedural History

a. Administrative hearing and decision

¶ 15 Based on the above circumstances, Swenson sought benefits under Wis. Stat. § 102.35(3) ⁸ alleging deBoer unreasonably refused to rehire him. On December 29, 2006, he requested an administrative hearing by the Department of Workforce Development, Worker's Compensation Division. A hearing was held before an ALJ.⁹

¶ 16 At the administrative hearing, Garcia acknowledged that the check-ride was not required by the DOT or any federal regulations. He stated, however, that liability and safety are “[a]bsolutely [the] Number 1 concern” of deBoer. He explained that the check-ride policy is in place to meet these concerns:

[The] 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 [do] 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.

Similarly, Vogel explained:

[T]he 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.

Vogel also testified that in the 25 years she has worked as the worker's compensation coordinator for deBoer, an exception to the check-ride policy had not been granted. She stated that she was unaware of a single driver who was off work for more than 60 days who did not go on a check-ride. Vogel stressed that it was deBoer's intention to rehire Swenson.¹⁰

¶ 17 Following the May 2007 hearing, the ALJ issued a written decision. After noting that this case was “[i]n many ways [ ] a tie” and “[i]n baseball, the...