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Frisch Weatherstrip Company v. Labor & Industry Review Commission5/31/2000
Cornelia G. Clark Clerk, Court of Appeals of Wisconsin
APPEAL from an order of the circuit court for Waukesha County: PATRICK L. SNYDER, Judge. Affirmed.
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Frisch Weatherstrip Company appeals from an order affirming a determination by the Labor and Industry Review Commission (LIRC) that Frisch must pay Jeff Kolokithas lost wages occasioned by Frisch's unreasonable refusal to rehire Kolokithas after a work-related injury. Frisch argues that there was not sufficient evidence that it had knowledge that Kolokithas's injury was work related and that LIRC failed to find that Frisch terminated Kolokithas because of a work-related injury. We affirm the circuit court order.
. While working for Frisch on July 1, 1996, Kolokithas began to experience back pain and informed a co-worker about it. When Kolokithas picked up his paycheck later that same day, he told Steve Frisch about the back pain. Kolokithas missed the next day of work in order to be examined by a doctor. After the holiday weekend, Kolokithas consulted with a chiropractor up north and was told not to return to work for another week. Kolokithas stayed up north and was treated there. Kolokithas was released to return to work without restrictions on July 29, 1996. When Kolokithas inquired whether he should return to work, Frisch indicated that there was no work for him and suggested that it was time for them to "part ways." Kolokithas did not return to work on July 29 and Frisch sent him a letter terminating his employment " ue to the fact that you haven't been back to work since July 1st." In the letter Frisch indicated that "since this wasn't a work-related accident, I was very considerate about all the delays in returning to work .... I do appreciate the fact that after you hurt your back up north you did come in to work on that following Monday."
. It is the employee's burden to prove that he or she had a work-related injury and was not rehired because of the injury. See Ray Hutson Chevrolet, Inc. v. LIRC, 186 Wis. 2d 118, 122, 519 N.W.2d 713 (Ct. App. 1994). The determination of whether an employer has unreasonably refused to rehire an employee injured in the course of employment presents a mixed question of fact and law for LIRC. See id. The conduct of the parties is a question of fact on which LIRC's findings are conclusive so long as they are supported by credible and substantial evidence. See Michels Pipeline Constr., Inc. v. LIRC, 197 Wis. 2d 927, 931, 541 N.W.2d 241 (Ct. App. 1995). We cannot substitute our judgment for that of LIRC regarding the credibility of witnesses or the weight to be accorded to the evidence supporting factual findings. See West Bend Co. v. LIRC, 149 Wis. 2d 110, 118, 438 N.W.2d 823 (1989).
. Frisch argues that because it did not have knowledge that Kolokithas sustained a work-related injury, the termination was not caused by the work-related injury. It claims that LIRC's decision implies that the employer's lack of knowledge is irrelevant. At the outset of its opinion, LIRC acknowledged that it was asked to address whether Frisch knew before terminating Kolokithas that the injury was work related. It did not ignore that issue.
. Kolokithas testified that he felt a pull in his back when he reached down to pick up a caulk tube and leftover materials. He indicated that he told Frisch that he had felt something pull and that it happened on the job. Frisch responded that it was probably a pulled muscle, that Kolokithas should probably not claim it as a worker's compensation injury, and that Frisch would rather the claim be run through the health insurance company. Kolokithas explained that he had not filed a worker's compensation claim pri
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