DAVID G WILLIAMS, Applicant
MICHAELS DAIRY, Employer
The respondent employer, Michael's Dairy, submitted a petition for commission review alleging error in the administrative law judge's Findings and Interlocutory Order issued in this matter on October 8, 2009. The applicant submitted an answer to the petition and briefs were submitted by the parties. At issue is whether or not the employer, without reasonable cause, refused to rehire the applicant, within the meaning of Wis. Stat. § 102.35(3).
The commission has carefully reviewed the entire record in this matter and hereby affirms the administrative law judge's Findings and Interlocutory Order, except as herewith modified:
1. Delete the final sentence on page 2 of the administrative law judge's decision and substitute the following sentence therefor:
"By May of 2009, Sheehan had begun driving for the employer for four days a week."
2. Delete the third sentence of the final paragraph on page 5 of the administrative law judge's decision and substitute the following sentence therefor:
"No evidence was presented indicating that the position for which Sheehan was hired on October 20, 2008, had been eliminated as of the date of hearing."
5. Delete the eighth sentence of the first full paragraph on page 6 of the administrative law judge's decision and substitute the following sentence therefor:
"Within 30 days, the respondent employer is directed to submit evidence concerning the wages earned by Sheehan while working for the employer between October 20, 2008, and the date of hearing, so the amount of additional compensation due the applicant may be determined."
The rest and remainder of the administrative law judge's FINDINGS OF FACT AND CONCLUSIONS OF LAW are affirmed and reiterated as if set forth herein.
NOW, THEREFORE, this
The Findings and Interlocutory Order of the administrative law judge are modified to conform with the foregoing, and as modified are affirmed. Jurisdiction is reserved for such further findings and orders as may be warranted.
Dated and mailed June 23, 2010
willida : 185 : 5 ND § 7.33
/s/ James T. Flynn, Chairperson
Robert Glaser, Commissioner
/s/ Ann L. Crump, Commissioner
As explained in the administrative law judge's decision, the employer failed to establish reasonable cause for failing to rehire the applicant for the position it offered to Steven Sheehan on October 20, 2008. The position involved the same type of duties the applicant had been performing for the employer prior to his work-related injury. The applicant had informed the employer that he was available for work with no limitations. Absent reasonable cause, suitable part-time positions must be offered to injured employees who have recovered from their injury and are again available for work. Unified Management Company LLC v. LIRC & Gwendolyn Klay, No. 08-CV-1057 (Wis. Cir. Ct. Sauk Co., Aug. 5, 2009); Bell Lab, Inc. v. LIRC & Mark Gutkowski, No. 88-2305 (unpublished Ct. App., September 7, 1989).
The employer's stated reason for offering the position to Sheehan on October 20, 2008, rather than to the applicant was vague, incredible, and did not establish reasonable cause for not rehiring the applicant.(1)
The commission modified the administrative law judge's decision to correct factual errors regarding the history of Sheehan's employment with the employer.
cc:
Attorney Charles Soule
Attorney Mark S. Sweet
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