RONALD ADAMSON, Applicant
DE BOER INC, 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.
Dated and mailed
May 31, 2012
adamsor . wsd : 101 : 9 ND6 8.31
BY THE COMMISSION:
/s/ Robert Glaser, Chairperson
/s/ Ann L. Crump, Commissioner
/s/ Laurie R. McCallum, Commissioner
The applicant worked as a truck driver for the employer, a trucking company. He was injured on April 30, 2005, and treated in Texas where he lived. On March 13, 2006, his treating doctor, Ritesh Prasad, M.D., released him to work.
When the employer received the doctor's release, it sent the applicant a letter dated March 13, 2006, instructing him to report for an orientation at the Texarkana, Texas terminal on Monday, March 20. The letter stated that if the applicant failed to telephone the employer by Friday, March 17, 2006, it would assume that he wished to decline the position. According to the applicant, he did not receive the letter until March 18, 2006. He did not call the employer about returning to work because he received the letter late and because he had more treatment scheduled. Indeed, it appears that the applicant was authorized to remain off work by the employer's medical examiner.
Beginning in October 2007, the applicant began to have a series of conversations about his pending release to work with the employer's personnel specialist, Cindy Vogel. He initially told Ms. Vogel that he expected a release to return to work and, according to her, she reminded him of the importance of having the release sent to the employer. The applicant testified that he relied on his clinic forwarding the release to the employer, but it did not do so. After that there was an exchange of phone calls between the applicant and Ms. Vogel about the release but the applicant still did not forward it to the employer. On the last occasion, the applicant learned that a functional capacity evaluation had been scheduled for the following month, so he assumed that he would remain off work and did not have to forward the release to the employer.
Ms. Vogel testified, however, that the applicant was required to return to work once released, regardless of the functional capacity evaluation. Accordingly, the employer sent the applicant a letter stating that his failure to forward the release amounted to being no call/no show and that they considered him to have resigned. The applicant then sent the employer a letter saying he did not intend to resign, after which the employer sent him a letter on December 14 inviting him to re-apply as any other individual who is interested in a potential career with the company.
However, the employer modified its position and in January 2008 offered the applicant work as a "returning driver," provided he would undergo the reorientation required of all returning drivers. According to the applicant, he did not get this letter. (Exhibit 9) A further letter was sent to the applicant in February of 2008 but he declined to return to work under this letter (which he did receive because it was sent by certified mail) because he felt it was an insufficient offer.
Wisconsin Stat. § 102.35(3), 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.
In L&H Wrecking Co. Inc., v. LIRC, 114 Wis. 2d 504, 510 (Ct. App. 1983), the court held that, when the employee's employment is terminated by an employer before the employee receives medical permission to return to work and is released, it is an unreasonable construction of Wis. Stat. § 102.35(3) to require an employee to report to work in order to recover under the statute. However, 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 applicant contends that he was discharged back in March of 2006, and then again in November 2007. He suggests that the subsequent offers of work were not made in good faith and lacked sufficient details to make them genuine offers.
The commission disagrees. The March 2006 letter, while it stated that the employer would assume the applicant was not interested in reemployment if he didn't respond by March 17, did not discharge him. The applicant did not call the employer when he received the letter on March 18 to indicate he had only just received it and did indeed wish to return to work. Further, while the employer did send the applicant a letter discharging him in November 2007, again, that occurred after a series of conversations about a work release which the employee never forwarded to the employer. Instead, he simply assumed he did not have to forward the release after the functional capacity evaluation was scheduled. Even then, the employer offered the applicant work as a "returning driver,"(1) in January and February 2008.
This is not a case, as in L & H Wrecking, where an employer fires a worker, then expects him to take the first step to reapply to recover under Wis. Stat. § 102.35(3). Rather, the employer itself asked the worker to return to work, but he either did not respond or outright refused. On this record, the commission is satisfied that the employer offered to return the applicant to work, but he declined the offers.
cc:
Attorney Dana W. Duncan
Attorney Richard D.Weymouth
Attorney James O. Moermond
[ Search Decisions ] - [ WC Legal Resources ] - [ LIRC Home Page ]