GWENDOLYN KLAY, Applicant

UNIFIED MANAGEMENT CO LLC, Employer

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. Jurisdiction is reserved for such further findings and orders as may be warranted.

Dated and mailed November 6, 2008
klaygw : 185 : 9 ND § 7.34; 7.35

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

Both the applicant and the employer submitted petitions for commission review of the administrative law judge's decision issued in this matter on May 5, 2008. The employer asserts that after it discharged the applicant on May 22, 2007, and subsequently hired individuals to work in temporary and then permanent, part-time receptionist positions, it had no affirmative duty to offer either of these positions to the applicant. However, a terminated employee is not required to contact the employer in order to recover under Wis. Stat. § 102.35(3). L & H Wrecking Co., Inc. v. LIRC, 114 Wis. 2d 504, 510, 339 N.W.2d 344 (Ct. App. 1983). The employer had been made aware of the fact that the applicant expected to be released without restriction in early June of 2007, and had no reasonable basis for not offering the applicant both the temporary and the part-time receptionist positions. In fact, in its termination letter sent to the applicant on May 22, 2007, the employer wrote that should its need for a receptionist change, it would call the applicant to discuss employment opportunities.

The employer additionally argues that assuming there was an unreasonable refusal to rehire, the penalty amount awarded to the applicant should be reduced for the time period that the applicant attempted to start up her own business, because the business was unsuccessful and the applicant made no money during this period. The applicant exercised her free enterprise right to start her own business, and this constituted a legitimate attempt to earn a livelihood. Her business failed, but it was a reasonable attempt to earn a living and mitigate the amount of her lost wages during the period in question.

The applicant asserted that the administrative law judge should have awarded the penalty amount at the weekly rate she was earning as a full-time receptionist for the employer ($676 per week). However, for legitimate business reasons the employer first eliminated the full-time receptionist position, and subsequently reinstated it on a temporary part-time, and then a permanent part-time basis. It was these part-time wages that were the "wages lost" to the applicant, and they were correctly calculated by the administrative law judge to be $240 per week. Subsequent to the date of hearing, should the hours of the receptionist position be increased by the employer, and not offered to the applicant, the applicant may have a new claim for an increased penalty amount commensurate with such increased hours. The limit on such weekly rate would be the amount the applicant was earning as a full-time receptionist ($676 per week), and the cumulative monetary limit remains one year's wages ($35,152).

cc:
Attorney Robert A. Kay
Attorney Kay A. Millonzi

Appealed to Circuit Court.  Affirmed August 5, 2009.  Appealed to the Court of Appeals.  Affirmed in part, reversed in part (as to calculation of award), per curiam, October 21, 2010.

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uploaded 2008/11/12