Claim No. 93022421

Pursuant to the timely petition for review filed by the employer in the above-captioned matter, the commission has considered the petition and all relief requested. The commission has reviewed the applicable records and evidence and finds that the administrative law judge's findings and order are supported thereby. The commission therefore adopts the findings and order of the administrative law judge as its own.

NOW, THEREFORE, the Labor and Industry Review Commission does


That the findings and order of the administrative law judge are hereby affirmed..

Dated and mailed September 29, 1994
175 : CD00836 ND 7.34

/s/ Pamela I. Anderson, Chairman

/s/ Richard T. Kreul, Commissioner

/s/ James R. Meier, Commissioner


The employer asserts in its petition for commission review that the administrative law judge erred in determining that the employer unreasonably refused to rehire the applicant pursuant to section 102.35 (3), Stats. The employer states that as to the period between April 12, 1993 and June 8, 1993, the administrative law judge award benefits should be set aside because the employer's owner's, Mr. and Mrs. Larson, did not refuse to rehire her during such period without reasonable cause. The employer points to the fact that both Mr. and Mrs. Larson testified that they had such cause in the form of the applicant's admission to Mrs. Larson that she could not continue to perform her duties.

However, the applicant testified that at the time of her discharge she had no physical restrictions. On April 8, 1993, the applicant notified the employer that she had carpal tunnel syndrome and would be having surgery in June. The applicant performed her normal duties on April 8 and 9, 1993, without any reported problems. The notes from the applicant's treating physician, Dr. Roberts, dated April 19, 1993, indicate that he expected that the applicant would have a complete recovery following her carpal tunnel surgeries and he did not believe that there was any need to put limits on the applicant's current work activities. Also, the notes from Dr. Roberts dated April 13, 1993, indicate that the applicant saw him that day and that she was quite upset with the fact that she was discharged by the employer the previous day, and that she was at a loss to explain why she was discharged when she recently was made a supervisor and given a raise.

The commission consulted with the administrative law judge concerning her assessment of the applicant's demeanor and testimony that she was able and available for work as of April 12, 1993, and the testimony from Mr. and Mrs. Larson that the applicant had informed them that she was not able to continue working. The administrative law judge indicated that she found the applicant's testimony to be consistent and persuasive that she was able to work. Based upon an independent review of the evidence in the record and given the fact that the applicant was able to work on April 8 and 9 and given the report from Dr. Roberts that the applicant was able to continue her current work activities, the commission has found nothing to warrant overturning the administrative law judge's credibility determination.

The employer also contends that no benefits are payable as a result of the applicant's absence from the employer subsequent to June 8, 1993, for the reason that at all times since then she has been physically unable to perform the duties required of her employment and that the employer had no work available to her within her physical and mental limitations. However, at the time the applicant was discharged in April, 1993, there was suitable work available for her within her restrictions. Also, the applicant testified that upon being released to return to work by Dr. Florell on August 23, 1993, she was able to perform the work for the employer. The applicant testified that she believed she could go back to work for the employer and further that the employer had technical jobs like camera paste-up work that she was capable of doing although she was not vocationally trained to do it. The commission credits the applicant's testimony that there was work available with the employer that she could perform following her release to return to work in August, 1993.

The commission agrees with the administrative law judge that the employer failed to establish that it had reasonable cause for refusing to rehire the applicant upon learning of her carpal tunnel syndrome. The applicant is entitled to one year's lost wages for the employer's unreasonable refusal to rehire her and that she had accrued 30 separate weeks not including the weeks she was on temporary disability following her surgeries as noted by the administrative law judge.

The employer contended that the applicant should have reapplied for employment with the employer following her release to return to work in order to qualify for recovery under the statute. However, the commission agrees with the administrative law judge that it was not necessary and would have been futile for the applicant to reapply for her former work since she had already been terminated by the employer and had no reason to expect that she would be rehired under any circumstances. Based upon the evidence in the record, the commission finds that the employer unreasonably refused to rehire the applicant and that the applicant is entitled to one year's lost wages due to such refusal.

Attorney Kenneth T McCormick Jr
Attorney Roger Merry

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