DEBORAH K COLE, Applicant

VOLLRATH CO LLC, Employer

VOLLRATH CO LLC, 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.

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. The applicant's claim made pursuant to Wis. Stat. § 102.35(3), is dismissed. Jurisdiction is reserved with respect to the primary compensation matters as noted in the Department Order of May 24, 2004.

Dated and mailed September 25, 2006
colede . wsd : 185 : 8  ND § 7.32

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

The employer's worker's compensation specialist, Laurie Petrie, credibly testified that there were no regular jobs open on February 1, 2002, that would have accommodated the applicant's restrictions. The applicant's argument that there was an available mailroom job appears to be based on her testimony that another worker had been assigned to light duty in the mailroom, and that person had less seniority than her. However, the employer's Temporary Alternative Duty program (TAD) did not provide that one temporarily disabled worker could bump another temporarily disabled worker out of a TAD position based on seniority. In addition, there was no evidence that the mailroom position was even discussed as an option on February 1, 2002, or at any other time prior to the hearing. The TAD program was the employer's voluntary attempt to keep medically restricted workers employed, and the employer actually stretched its own rules regarding the length of TAD assignments to keep the applicant employed as long as it did. Also, the applicant conceded in testimony that there were no regular jobs available to her on February 1, 2002. She also conceded that there was no contract provision, other than the "super seniority" provision, that would have allowed her to bump anyone out of their position based on her own physical restrictions.

The applicant emphasizes that the employer took into account the fact that it believed her shoulder condition was not work-related when it placed her on leave on February 1, 2002. The argument continues that because it was subsequently determined that the employer was wrong about the work-relatedness of her shoulder condition, she was not placed on leave for "reasonable cause" pursuant to Wis. Stat. § 102.35(3). However, based on Dr. Gmeiner's causation opinion, the employer had the right to conclude that the shoulder condition was not work-related, and to take this onto account when deciding whether or not to keep the applicant in a TAD position as of February 1, 2002. The applicant had overstayed her time in that type of position, and Petrie credibly indicated that work was somewhat limited at that time. The applicant agreed that work was slow. Given all these circumstances, the layoff was reasonable, and it was particularly reasonable given the employer's provision of sickness and accident benefits, and the subsequent communication with the applicant regarding future job openings.

In the petition, the applicant additionally argues that if there was no unreasonable refusal to rehire, she should have received temporary total disability for the period beginning February 2, 2002, and continuing until she returned to work on December 2, 2002. According to the applicant, the department's order of May 24, 2004, awarded temporary total disability only from September 20, 2002 to December 2, 2002 (a copy of the May 2004 order is not in the record or in the file before the commission). The applicant's claim for temporary total disability for the additional period between February 2, 2002 and September 20, 2002, minus an offset for the sickness and accident benefits received (see Wis. Stat. § 102.30(3), should have been adjudicated in the previous proceeding leading up to the decision of May 24, 2004. The only issue currently before the commission is the unreasonable refusal claim, and no finding regarding temporary disability can be made in the current commission decision.

cc:
Attorney Samuel Zelpe
Attorney Ann I. Mennell

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