STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

WILLIAM GROH, Applicant

ALYSON TOOL CORPORATION, Employer

WORKER'S COMPENSATION DECISION
Claim No. 2004-002455


On July 12, 2004, the applicant filed an application seeking compensation for an unreasonable refusal to rehire under Wis. Stat. § 102.35(3). An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development heard the matter November 1, 2005. The employer does not contest jurisdictional facts, the occurrence of a compensable shoulder injury on June 27, 2003, or an average weekly wage at the time of injury of $820.09. The employer did contest its liability under Wis. Stat. § 102.35(3).

The ALJ issued his decision dismissing the application on February 23, 2006. The commission received the applicant's petition for commission review on March 22, 2006, which is after the statutory appeal period as explained below.

There are two main issues before the commission: (1) the timeliness of the applicant's petition for review, and (2) the merits of the applicant's unreasonable refusal to rehire claim under Wis. Stat. § 102.35(3).

On these issues, the Labor and Industry Commission makes these

FINDINGS OF FACTS AND CONCLUSIONS OF LAW


1. Timeliness.

Wisconsin Stat. § 102.18(3) provides, in relevant part, as follows:

"A party in interest may petition the commission for review of an examiner's decision awarding or denying compensation if the department or commission receives the petition within 21 days after the department mailed a copy of the examiner's decision to the party's last-known address. The commission shall dismiss any petition which is not timely filed unless the petitioner shows probable good cause that the reason for failure to timely file was beyond the petitioner's control . . ."

Wisconsin Admin. Code § LIRC 1.02 provides, in relevant part, as follows:

All petitions for commission review shall be filed within 21 days from the date of mailing of the findings and decision or order . . .

Wisconsin Admin. Code § LIRC 1.025 provides, in relevant part, as follows:

(1) Petitions for review may be filed by mail or personal delivery. A petition for review filed by mail or personal delivery is deemed filed only when it is actually received by the commission or by the division of the department to which the petition is mailed, except that petitions for review in unemployment insurance cases under s. 108.09 or 108.10, Stats. which are filed by mail or personal delivery are deemed filed when received or postmarked as provided for in s. LIRC 2.015.

The administrative law judge's decision having been dated and mailed on February 23, 2006, the last day on which a timely petition for review could have been filed was March 16, 2003. As set out above, petition for review by the commission in a worker's compensation case is filed when received by the commission or worker's compensation division. The commission did not receive the petition for review in this case until March 22, 2006.

The document serving as the petition for review is dated March 10, 2006. It arrived from the office of the applicant's attorney in an envelope bearing a postage meter stamp dated March 10, 2006. However, the envelope was addressed to the commission at "P.O. Box 1826," rather than the commission's correct address (P.O. Box 8126).

The envelope as addressed did provide the correct ZIP code, 53708-8126, which of course includes the same digits as in the commission's correct post office box number. Nonetheless, the transposition of digits in the post office box number itself apparently led to a significant delay in the mail delivery process. Thus, the petition for commission review, which was mailed six days before the March 16, 2006 deadline, arrived six days late.

Under Wis. Stat § 102.18(3), the commission must dismiss a petition which is not timely filed unless the petitioner shows probable good cause that the reason for failure to timely file was beyond the petitioner's control. In this case, the commission concludes that the petitioner has made the required showing. Here the applicant's attorney mailed the envelope containing the petition six days before the deadline. While the envelope contained the wrong the post office box, the fact that it took the postal service more than six days to correct the transposed numbers in a post office box address, when the 9-digit ZIP code was correct, was beyond the applicant's control.

The commission therefore finds that the petitioner has shown probable good cause that the reason for having failed to file the petition timely was beyond the petitioner's control, within the meaning of Wis. Stat. § 102.18(3). The commission shall proceed to the merits of the case.  
 

2. Merits of the claim under Wis. Stat. § 102.35(3).

The commission has considered the petition and the positions of the parties concerning the merits of the applicant's claim for compensation under Wis. Stat. § 102.35(3). It has also consulted with the presiding ALJ concerning witness credibility and demeanor and reviewed the evidence submitted to him. Based on its review, the commission agrees with the decision of the ALJ. The commission therefore adopts the findings and order in the ALJ's decision and incorporates them in this decision as its own, except that it deletes the third paragraph beginning on page four of the ALJ's decision, and substitutes:

"The company has shown reasonable cause for discharging or laying off the applicant. The application shall be dismissed."

NOW, THEREFORE, the Labor and Industry Review Commission makes this


ORDER

The petition for review is accepted. The findings and order of the administrative law judge, as modified, are affirmed.

Dated and mailed November 30, 2006
grohwi . wpr : 101 : 1   ND § 9.2   § 7.32

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

The applicant hurt his shoulder in June 2003. He continued to work until January 2004 when he had surgery. He was released without restrictions in April 2004. Upon returning to work, he was assigned lesser skilled work operating an electrical discharge machine for 8 days then laid off. The applicant, a tool room machinist, made about $18 per hour; the employer normally paid workers who did the lesser skilled work about $10 per hour.

The applicant acknowledges that 3 other people were laid off when he was, and some other workers had been laid off earlier in 2004. He testified, though, that a temporary worker was hired to do the lesser skilled, electrical discharge machine work he had done briefly when he returned to work. The applicant testified, too, that he was not offered that lesser skilled job at a lower rate of pay, and that he had heard from other employees that his name came up at a safety meeting in which workers were told to work safely or the employer's insurance rates would go up.

The employer's human resource manager, its plant manager and its owner all testified at the hearing. Their testimony indicates the company had been having financial problems since 2001, and had laid off 9 employees in 2003. Four more had to be laid off in April 2004. The higher-ups all testified the applicant's work injury was not considered or discussed when the decision was made to lay him off with three other workers in April 2004.

In determining whom to lay off, the employer's owner directed the human resource manager to lay off workers who--like the applicant--were being paid at the skilled work level but were doing "simple production work" or unskilled work. Another criterion was "dedication" to the company. The human resource manager also spoke with supervisors, and retained those workers who the supervisors thought had long range potential.

None of the three workers who were laid off with the applicant in April 2004 had had work injuries. According to the employer, another worker, Mike Groh, who had had a work injury had been put on a list of future layoffs, was nevertheless retained when a supervisor spoke up for him.

After the lay off, the employer was left with 14 skilled workers and 10 production workers. The employer has hired temporary workers, including one whom it eventually hired as a regular full time worker after a year of service on temporary status.

Wisconsin Stat. § 102.35(3), provides:

102.35(3) Any employer who without reasonable cause refuses to rehire an employee who is injured in the course of employment, where suitable employment is available within the employee's physical and mental limitations, upon order of the department and in addition to other benefits, has exclusive liability to pay to the employee the wages lost during the period of such refusal, not exceeding one year's wages....

As stated in Dielectric Corp. v. LIRC, 111 Wis. 2d 270, 278 (Ct. App. 1983), 111 Wis. 2d at 278:

Under [Wis. Stat. § 102.35(3)], once the employee has suffered a worker's compensation injury, the question initially becomes: does the employer have good cause not to rehire. If the employee is rehired, the rehiring cannot be a pro forma rehiring. Therefore, if there is an eventual discharge, the employer must show that there is no bad faith on its part to evade this statute and that the rehired employee was discharged with good cause.

This "very correct standard" set out by the court in Dielectric was adopted by the supreme court in West Bend v. LIRC, 149 Wis. 2d 110, 121 (1989). In that case, the Supreme Court stated that "after an employee shows that she has been injured in the course of employment and subsequently is denied rehire, it becomes the burden of the employer to show reasonable cause for not rehiring the employee." West Bend, at 149 Wis. 2d 123.

Wisconsin Stat. § 102.35(3) does not guarantee reemployment in every case. Dielectric, at 111 Wis. 2d 278, footnote 6 (stating the court "d[id] not believe the legislature intended lifetime job protection.) The statute itself uses a "reasonable cause" language, as reflected in the court of appeals holding in Ray Hutson Chevrolet, Inc., v. LIRC, 186 Wis. 2d 118, 123 (Ct. App. 1994) that:

A business decision to reduce costs can, by itself, establish the reasonableness of the decision. Reducing costs is a form of efficiency. Inefficient businesses risk their very survival and the jobs of all their employees. Nothing in § 102.35(3), Stats., reflects a legislative intent that an employer must perpetuate an unnecessary expense by rehiring an injured employee to fill a position the employer eliminated to save costs. We conclude that if an employer shows that it refused to rehire an injured employee because the employee's position has been eliminated to reduce costs and therefore to increase efficiency, the employer has shown reasonable cause under § 102.35(3).

The applicant, an employee who was injured at work and laid off upon his return to full duty, has made his prima facie case. The issue here is whether the employer met its burden of showing reasonable cause for the discharge.

The commission, like the presiding ALJ, concludes it has. The employer's witnesses testified, credibly in the ALJ estimation, that it had business reasons for the layoff. The fact that it considered "long-range potential" or dedication does not mean it based its decision on a work injury. This is particularly true where, as here, the record shows the employer also laid off other workers with no injuries but retained a worker who had had an injury. Nor can the commission infer the employer's stated reasons were a pretext based on the applicant's testimony that other workers told him his name came up at a safety meeting. Further, while the employer hired temporary workers after laying off the applicant, again, this was a business decision done in an even handed manner.

cc:
Attorney Charles F. Domer
Attorney Thomas R. Schrimpf


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