STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

CHARLIE W SNYDER III, Applicant

LAKESHORE MARINE, Employer

MID CENTURY INS CO, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 95004097

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.

ORDER

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

Dated and mailed: January 30, 1998
snydech.wsd : 175 : 8  ND § 7.33

David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The applicant asserts in his petition for commission review that the administrative law judge erred in determining that the employer did not unreasonably refuse to rehire the applicant pursuant to Wis. Stat. § 102.35 (3). The applicant states that the administrative law judge erred in determining that the evidence was insufficient to support a finding that the employer's failure to rehire the applicant was made in bad faith. The applicant states that Wis. Stat. § 102.35 (3) is in place to protect an injured employe during the healing period to allow him to return to his employment at the end of the healing period.

However, the statute does not require that the employer hold the applicant's job open for him indefinitely during his healing period. Rather, if the employer has work available which is suitable for the applicant upon his return to work and the employer refuses to rehire the applicant, then the burden shifts to the employer to establish reasonable cause for failure to rehire the applicant. However, in this case there was no showing that the employer had any suitable work available for the applicant at the time of his release to return to work in January 1996. The employer's operations manager, Mr. Bush, testified that the employer needed to fill the applicant's job in April 1995, since the summer was coming and he had to get some one to do the job. Mr. Bush testified that the person that the employer hired was a permanent replacement and that the job was not open at the time the applicant was released to return to work.

The evidence did not establish that the employer had any other suitable work available for the applicant at the time he was released to return to work. The commission agrees with the administrative law judge that the employer is a small employer who may not have been able to keep the applicant's position open for him for a year while the applicant recovered. Mr. Bush credibly testified that the employer needed to hire a replacement in April 1995 prior to the onset of the employer's busy season. Based on Mr. Bush's testimony that the employer needed to hire a full-time permanent replacement for the applicant in April 1995 and given the evidence that there was no other suitable work available for the applicant when he was released to return to work, the evidence was sufficient to raise a legitimate doubt that the employer unreasonably refused to rehire the applicant pursuant to Wis. Stat. § 102.35 (3).

cc: ATTORNEY WALLACE MC DONELL
ALLEN HARRISON WILLIAMS BRADEN & OLSON

ATTORNEY WARD ZIELINSKI
MC DONELL & SWATEK

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