JOHN D HILL, Applicant

J B HUNT TRANSPORT INC, Employer

NATIONAL UNION FIRE INS CO OF PITTSBURGH, Insurer

An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed by the employer.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission agrees with the decision of the ALJ, and it adopts the findings and order in that decision as its own.

The findings and order of the administrative law judge are affirmed.

Dated and mailed July 27, 2006
hilljoh . wsd : 175 : 4  ND § 3.5  § 7.32

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

Robert Glaser, Commissioner

The employer asserts in its petition for commission review the administrative law judge erred in determining the applicant established that his contract of employment and the hauls he made beginning from the Johnson Creek, Wisconsin terminal were sufficient to make him subject to the Workers Compensation Act, and therefore, the department has jurisdiction to proceed on the issue of unreasonable refusal to rehire. The evidence indicates the applicant was invited by the employer to attend an orientation session in Chicago during a telephone conversation while he was at his home in Milwaukee, Wisconsin. Mr. Edwards, the employer's safety manager, testified the applicant was assigned to the Johnson Creek terminal where the employer leased the premises for its trucks. Mr. Edwards testified the applicant would be considered to be a Johnson Creek employee. In addition, the applicant testified the instructor at the orientation session informed him that Johnson Creek would be the location where he would park his truck when he was at his home residence in Milwaukee.

The commission agrees with the administrative law judge the applicant has established that his contract of employment and the hauls he made beginning from the Johnson Creek, Wisconsin terminal were sufficient to make him subject to the Workers Compensation Act. Based on the evidence in the record the applicant's employment was principally localized in this state. The employer leased premises in Johnson Creek for the applicant to park his truck and all of his driving originated from the Johnson Creek location in Wisconsin. Mr. Edwards admitted the applicant was a Johnson Creek terminal hire.

In addition, it appears the applicant was working under a contract of hire made in this state. The Wisconsin Court of Appeals stated in Horton v. Haddow, 186 Wis. 2d 174 (Ct. App. 1994), the place where an employment offer is accepted determines where the contract is made, and a contract made by telephone is made where the accepter speaks. In this case, the applicant was in Milwaukee, at his home, at the time that he talked by telephone to the representative of the employer, when he was invited to attend an orientation session in Chicago, Illinois. The applicant was advised that upon completion of the orientation he would be hired by the employer. Therefore, it appears the applicant was working under a contract of hire made in Wisconsin, consistent with the commission's holding in Weaver v. Optimum Staffing Inc., commission decision dated December 6, 1996.

The employer also contends that the administrative law judge erred in determining the employer unreasonably refused to hire the applicant pursuant to Wis. Stat. § 102.35(3). However, it does not appear the employer discharged the applicant for a valid reason, in good faith. The evidence indicates the applicant was discharged following an accident while driving his truck on April 23, 2004, while carrying a load of ammonia. The applicant exited the New Jersey turnpike and entered a steep curve in the roadway, and his cargo shifted causing the vehicle to roll over the passenger side, and resulted in a hazardous spill which needed to be cleaned up. Mr. Edwards testified there were two citations issued by the New Jersey police to the employer for driving an unsafe vehicle, and for the load not being properly secured. The evidence did not indicate the applicant was issued a personal citation for the accident.

Mr. Edwards admitted the employer was responsible for labeling the paperwork to indicate to the driver that the material he was hauling was hazardous. The applicant testified that he was not aware that he was hauling hazardous material at the time of the accident in April 2004. The applicant credibly testified that at the time he picked up the load in April 2004, he was specifically instructed not to get out of the truck or to inspect the load during the loading process. The applicant testified his fleet manager, Mr. Colter, instructed him to stay in the truck.

An employer may discharge an employee following a work accident for a cause or reason that is fair, just or fit under the circumstances. West Allis School District v. DILHR, 116 Wis. 2d 410, 422 (September 1984). The commission agrees with the administrative law judge that the employer unreasonably refused to rehire the applicant pursuant to Wis. Stat. § 102.35(3). It does not appear that the applicant was discharged for a reason which was fair, just or fit under the circumstances. The employer had instructed the applicant to stay in his truck during the loading process. The applicant was not negligent in failing to inspect the load and in fact, he had been instructed not to do so.

The applicant was not cited for operating his vehicle in an unsafe manner. The evidence also did not establish that the applicant was guilty of driving more hours than federally mandated, and he was not issued a citation for any violation of DOT regulations. Given the applicant's credible testimony of his instructions to remain in his vehicle during loading, and the failure of the company to label the load of material as hazardous, and given the fact that it does not appear the applicant was negligent in failing to secure the load, and based on Mr. Edwards testimony, the evidence was sufficient to establish the employer unreasonably refused to rehire the applicant when it discharged him following the work accident in April 2004.

cc:
Attorney Michael C. Frohman
Attorney Kellet J. Koch

Appealed to Circuit Court.  Affirmed March 13, 2007.  Appealed to the Court of Appeals.  Affirmed in unpublished decision, February 20, 2008.

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