HAROLD G EVENSON, Applicant

KIRSCH FOUNDRY INC, Employer

TRAVELERS INDEMNITY CO OF AMERICA, 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 October 25, 2010
evensha : 175 : 5 ND6 8.32

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

The applicant asserts in his petition for commission review the administrative law judge erred in determining that under the circumstances presented in this case, the employer did not unreasonably fail to rehire the applicant within the meaning of Wis. Stat. § 102.35(3) on July 16, 2008. The applicant contends he did not voluntarily terminate his employment during a meeting with the employer on July 16, 2008, but rather was discharged by Mr. Maas following the meeting when he was asked for his meter and gloves. The applicant states there was no explanation from the employer of the type of classes he was to take for his eligibility for a tuition reimbursement program and the employer's lack of good faith is demonstrated by the continuing acceptable reviews the applicant obtained while employed with the employer.

However, the applicant admitted in his testimony that the employer offered him work as a maintenance mechanic with a reduction in his hourly wage to $17.54 per hour at the meeting on July 16, 2008. Mr. Mass, the employer's plant engineer, testified the employee was not discharged at the meeting on July 16, 2008 or thereafter, but the employer's intent was to offer the applicant work as a maintenance mechanic within his skills. Mr. Maas testified the applicant's reaction was to indicate that he was done and then he left the meeting. The administrative law judge, who could observe the demeanor of witnesses and therefore was in a good position to make a determination as to credibility, did not credit the applicant's version. Based upon an independent review of the evidence in the record, the commission has found nothing to warrant overturning the administrative law judge's credibility determination. The evidence indicates the applicant voluntarily terminated his employment on July 16, 2008, and was not discharged by the employer.

The evidence does not indicate the employer attempted to force the applicant to quit or treated him unfairly due to his work injury. The applicant was returned to work following his work injury to his regular position in December 2007. The administrative law judge appropriately noted the employer's new vice president of operations undertook an evaluation of the employer's operations including the maintenance department during the early part of 2008.

The evidence indicates the applicant was on notice that the employer believed he lacked competency as an electrician, although he was a good employee and a good maintenance mechanic. Mr. Paul, the employer's vice president of operations, testified the employer began a company-wide evaluation of its systems and the applicant was not singled out or treated differently than other employees due to his work injury.

The administrative law judge appropriately noted the applicant had been a good employee and the employer had repeatedly advised him of his deficiencies in the electrical area, and advised him to undergo additional training to remedy this shortcoming. The evidence indicates the employer had reasonable cause to meet with the applicant and request that he be reclassified as a maintenance mechanic with a reduction in pay, and the action was not taken as a pretext to force the applicant to quit due to his work injury. The applicant could have continued to work for the employer as a maintenance mechanic at the reduced hours and take additional training.

Based on Mr. Paul's testimony, as well as Mr. Maas' testimony, the evidence was sufficient to establish the employer had a valid business reason and reasonable cause for notifying the employee he was being reclassified as a maintenance mechanic with a reduction in pay, and the applicant voluntarily terminated his employment. The employer did not unreasonably fail to rehire the applicant within the meaning of Wis. Stat. § 102.35(3).

cc: Attorney David Lisko
Attorney Amanda Kaiser

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