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COURT OF APPEALS DECISION DATED AND RELEASED AUGUST 15, 1995 |
NOTICE |
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A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and Rule 809.62(1), Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 95-0547-FT
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT III
JAN ISAAC MC KITTRICK,
Plaintiff-Appellant,
v.
CATAWBA FARM SUPPLY,
INC.,
and LABOR AND INDUSTRY
REVIEW COMMISSION,
Defendants-Respondents,
NATIONAL FARMERS
UNION,
Defendant.
APPEAL from an order of
the circuit court for Rusk County:
FREDERICK A. HENDERSON, Judge. Affirmed.
Before Cane, P.J.,
LaRocque and Myse, JJ.
PER
CURIAM. Jan McKittrick appeals a trial court order
that upheld a worker's compensation decision of the Labor and Industry Review
Commission.[1] McKittrick sought back wages after his
employer, Catawba Farm Supply, Inc., refused to rehire him after he suffered
work injuries. The worker's
compensation act bars employers from refusing to rehire injured workers on
account of the injuries themselves. Universal
Foods Corp. v. LIRC, 161 Wis.2d 1, 6, 467 N.W.2d 793, 795 (Ct. App.
1991); § 102.35(3), Stats. In denying McKittrick's claim, LIRC and the
trial court accepted Catawba's proof that it had dismissed McKittrick for
reasons other than his injuries. On
appeal, McKittrick argues that LIRC and the trial court misjudged the
evidence. We reject this argument and
affirm the trial court's order.
The trial court
correctly upheld LIRC if the administrative record contained any credible
evidence supporting LIRC's ruling. West
Bend Co. v. LIRC, 149 Wis.2d 110, 117-18, 438 N.W.2d 823, 827
(1989). In the administrative
proceedings, Catawba gave three basic reasons for its decision: McKittrick had
displayed a poor work attitude; Catawba had been temporarily overstaffed; and
the company had experienced unaccounted for fuel inventory shortages during
McKittrick's tenure as a fuel truck driver.
None of these involved McKittrick's injuries; all reflected other
forces. Catawba supported these reasons
with consistent evidence. Specifically,
McKittrick had experienced verbal conflicts with both an employee and one of
the owners, Catawba's business had tailed off, McKittrick's work schedule had
been part time, and he had wrongly interjected himself into corporate finances,
having examined a corporate checkbook without permission and then questioned an
employee about a check she received. In
addition, Catawba acted consistently with two other employees who it believed
shared responsibility for the fuel shortages; it did nothing to dissuade them
from leaving the company when they decided to quit on their own volition.
As the judge of the
evidence's weight and credibility, LIRC could reasonably accept this evidence
and infer that Catawba had not violated the worker's compensation code. Although McKittrick states that Catawba's
reasons varied over time, any employer that had multiple grounds might skip one
here and stress another there. Moreover,
an employer might be understandably hesitant to directly accuse an employee of
theft, despite a high degree of suspicion.
We see nothing making Catawba's proof incredible as a matter of
law. Universal Foods, 161
Wis.2d at 7, 467 N.W.2d at 795. On the
other hand, McKittrick's proof was to a large extent post hoc — that is, his
dismissal followed the injuries and therefore must have been injury
connected. Except for the fact of
dismissal itself, he offered no proof that Catawba had ever questioned his
injuries or displayed any disapproval over them in any way. In fact, he even took an inconsistent
position, asserting that Catawba terminated him for complaining about the fuel
truck's brakes. McKittrick also
concentrated on trying to undermine Catawba's evidence. Compared to Catawba's proof, LIRC was
entitled to conclude McKittrick's proof was less persuasive. Under such circumstances, LIRC could
rationally reject McKittrick's proof and the inferences he asked LIRC to draw.
By the Court.—Order
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.