RICHARD T BUCK, Applicant

SYSTEMS INC, Employer

CONNECTICUT INDEMNITY CO, 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.

Dated and mailed May 24, 2007
buckri . wsd : 175 : 9  ND § 7.33

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

The applicant asserts in his petition for commission reviewed the administrative law judge erred in determining the employer did not unreasonably refuse to rehire the applicant when it discharged him August 16, 2004. The applicant contends that suitable work was available, and the employer had the additional burden of proving reasonable cause for terminating him. The applicant points to the fact that the employer did not present reasonable cause for terminating him because the employer's only reason for not allowing the applicant to work in any existing positions was that it had a blanket 75-lb. lifting requirement in all of its job descriptions for manufacturing positions. The applicant states that the employer did not look to whether the applicant could meet its blanket lifting requirement since the applicant only had the lifting restriction to one of his two arms.

However, the applicant admitted in his testimony that he thought that one of the jobs he could have performed at the employer within his permanent restrictions was the harness job. The applicant testified that he had also been doing work in other parts of the electrical department, drilling and wiring, and had been able to go up to full days in the electrical department for the last month. The applicant admitted upon cross-examination that other employees in the electrical department did lifting of what appeared to be larger and heavier objects, but the applicant did not testify that he felt he was capable of performing the heavy lifting with his left arm only.

The applicant did not testify that he felt that he was capable of performing his former work as a welder or any other work which involved lifting 75 lbs. The applicant's treating physician, Dr. Ziegler, stated in a treatment note dated October 13, 2004 the applicant was released with a permanent restriction of no heavy gripping, twisting, grasping and a 15-lb. weight limit and no repetitive use, and he had 20 percent permanent partial disability of function at the elbow as a result of his work injury.

Mr. McGuire, the employer's president, testified that the employer did not have modified work for manufacturing employees with permanent lifting restrictions under 75 lbs. Mr. McGuire explained that the employer would move employees around and that they did not always perform the same job, but at a minimum they must be able to lift at least 75 lbs. Mr. McGuire testified that the employer found the applicant light work in manufacturing in the electrical department beginning on half days, and later on full days, but it was not a permanent full-time position. Mr. McGuire explained that the employer's jobs require more than 15 lbs. of effort on a regular basis. Mr. McGuire testified that the applicant was terminated in August 2004 since the employer did not have any work available within his permanent restrictions.

Mr. Nedler, the employer's production manager, testified that all of the employer's manufacturing jobs have lifting over 15 lbs. on a regular basis. Mr. Nedler testified that electrical harness work is part of assembly, and the people performing such work also move over to regular assembly jobs when they have other work requiring heavy lifting. The administrative law judge appropriately noted that wiring harness duty was usually done in rotation by all those in the electrical department, and when there was extra harness work, the employer would call in temporary employees for only a brief time.

The employer was not required to create a special position for the applicant due to his work injury. The administrative law judge appropriately noted that the employer hired no manufacturing employees to specifically take over the temporary duties the applicant had been performing under his light duty restrictions. Based on Mr. McGuire's testimony as well as Mr. Nedler's testimony, and given the fact the employer had a requirement that all employees be able to lift 75 lbs., and given the applicant's testimony and physical restrictions, the evidence did not establish that the employer had suitable work available for the applicant within his restrictions. The evidence indicates that the employer did not violate Wis. Stat. § 102.35(3) when it terminated the applicant in August 2004. Therefore the applicant's claim for unreasonable refusal to rehire was appropriately dismissed.

cc:
Attorney Gordon R. Leech
Attorney Andrew T. Phillips

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