MAGGIE M KING, Applicant

B HIVE RESTAURANT, 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, except that it makes the following modifications:

1. Delete the last sentence of the ninth paragraph of the ALJ's Findings of Fact and Conclusions of Law, and substitute:

"Respondent B Hive may be liable for an additional 19 weeks of benefits at $241 per week for a sum to total of $4583.18.".

The findings and order of the administrative law judge, as modified, are affirmed.

Dated and mailed December 28, 2009
kingma . wmd : 101 : 1 ND 7.34

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

The applicant, a bartender, was injured in a slip and fall at work on November 16, 2008. She sought treatment, and her doctor took her off work and prescribed crutches. She was released to return to work on November 24, 2008.

The applicant testified that on November 17, she called the employer to report that she had been taken off work, and spoke with Bud (a/k/a Selvie Garman), the husband of the employer's owner, and its bookkeeper. According to the applicant, Bud refused to give the applicant the name of the employer's worker's compensation insurer. Thereafter, Bud called her, and left a message saying she was laid off. According to the applicant, in his message he told her that the employer needed someone who could work right away, and he also said that she was trying to get free money by applying for worker's compensation. Bud did not instruct her to reapply for work when she was able.

Bud testified that he called only to ask for the applicant's keys to give to a temporary bartender. He testified, however, that he suggested she apply for unemployment and that he thought she was using the workers compensation system. He admitted, too, that he mentioned trying to get free money in a phone message he left with the applicant.

It does appear from the testimony of Bud and his wife, Helen (the owner), that at least some work was available when the applicant was released to work on November 24. The temporary bartender is no longer with the employer. However, the employer's main defense is not that work was not available when she was released, but that she quit by not returning to work.

The applicant seeks compensation under Wis. Stat. § 102.35(3), which provides as follows:

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):

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.

The commission has previously held that an employer is under no duty to keep a job open for an injured worker indefinitely. Snyder v. Lakeshore Marine, WC Claim No. 95004097 (LIRC, January 30, 1998). See also Fruth v. Town of Wheatland, WC Claim No. 2003-033619 (LIRC, June 2, 2006). In other words, Wis. 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. 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).

However, if an employer discharges a worker, the worker has no duty to reapply to preserve his or her claim. The court of appeals has held that:

We conclude that to require a terminated employee to report to work in order to recover under sec. 102.35(3), Stats., is an unreasonable construction of the statute. In this case, [the employer] terminated the employment before [the worker] received medical permission to return to work. For [the worker] to have reported for work, after termination, would have been an exercise in futility. To require such behavior as a prerequisite to recovery under sec. 102.35(3) would impose an unreasonable burden on any employee. [Italics in the original.]

L&H Wrecking Co. Inc., v. LIRC, 114 Wis. 2d 504, 510 (Ct. App. 1983). The court added that it is unreasonable to shift onto the employee, especially a terminated employee, the burden of proving the availability of suitable jobs. Id., 114 Wis. 2d at 510-11.

The applicant has made her prima facie case. She is an employee who was injured and then was denied rehire. The commission concludes the applicant was discharged by the employer, and that the employer has not shown reasonable cause for the discharge. The applicant called the employer to inform it of her work restrictions. The owner's husband told her to apply for unemployment insurance, and also strongly implied she was abusing the worker's compensation laws. The most reasonable conclusion from the evidence in the record is that the applicant was discharged based solely on the fact the applicant sought workers compensation for her injury.

The commission amended the ALJ's order. While the employer will be liable to the applicant if he continues to lose wages, no findings may be made based on this record about wage loss occurring after the date of hearing.

cc: Attorney Dana Duncan

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