P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)



Claim No. 96038910

The administrative law judge (ALJ) issued his findings of fact and interlocutory order in this case on July 9, 1997, following a hearing on March 11, 1997. The employer submitted a petition for commission review of the ALJ's findings and order. Thereafter, both the employer and the applicant submitted briefs.

Prior to the hearing, the respondent conceded jurisdictional facts. The employer's workers compensation insurer paid temporary disability from July 22 to August 22, 1996, based on an average weekly wage of $696, though at the hearing the employer specifically challenged its insurer's figure for average weekly wage.

The issues at the hearing, and now before the commission, are whether the employer is liable for an unreasonable refusal to rehire under Wis. Stat. 102.35 (3) and, if so, the amount of that liability.

The commission has carefully reviewed the entire record in this case, including the briefs submitted by the parties. Having done so, the commission hereby affirms the ALJ's decision, except as modified herein:


The first six paragraphs of the ALJ's Findings of Fact are affirmed and reiterated as if set forth herein.

The seventh paragraph of the ALJ's Findings of Fact is amended by deleting the sixth sentence thereof and substituting the following therefor:

"The respondent unreasonably refused to rehire the applicant under Wis. Stat. 102.35 (3)."

As amended, the seventh paragraph of the ALJ's Findings of Fact is affirmed and reiterated as if set forth herein.

The following material is inserted after the eighth paragraph of the ALJ's Findings of Fact:

"The next issue is the amount of the employer's liability for its refusal to rehire under Wis. Stat. 102.35 (3), which is based on `wages lost during the period of such refusal, not exceeding one year's wages.' The limitation to `one year's lost wage' has consistently been construed to be a monetary limit, not a temporal limit. Mushbash-Shir Muhammed II v. Maple Leaf Farms, Inc., WC claim no. 95002415 (LIRC, May 8, 1997). See also: Neal & Danas, Workers Compensation Handbook, 7.34 (4th ed., 1997).

"However, the commission generally will not order payment of the liability under Wis. Stat. 102.35 (3) prospectively in a lump sum on the assumption the full amount of the penalty will ultimately accrue. Rather, the commission follows a week-by-week approach considering both wages lost from the respondent-employer, and wages earned elsewhere, to the date of hearing. Mark Gutrowski v. Bell Laboratories, Inc., WC case no. 85-01922 (LIRC, October 30, 1987) and Jeanne Kruger v. Belleville Printing, WC Case no. 93022421 (ALJ, February 28, 1994), affirmed (LIRC, September 29, 1994), affirmed sub. nom. Dwayne Larson, et al., v. LIRC, case no. 94-CV-3316 (Wis. Cir. Ct. Dane County, November 20, 1995).

"In this case, the employer's workers compensation insurer, who is not a party in this proceeding, calculated the applicant's average weekly wage to be $696 for the purposes of paying temporary disability benefits. However, the employer challenged this average weekly wage figure. The commission agrees that the record does not support an average weekly wage of $696, and that the amount of the employer's liability should not be based on that figure.

"Average weekly wage is based on an applicant's hourly pay times hours worked, except that it may not be less than the actual weekly wage averaged over the prior four quarters. Wisconsin Statutes 102.11 (1)(d). (1) The applicant made under $12 per hour at the time of his injury. While he regularly worked overtime, the record does not establish his actual average weekly wage was anything near $696. There is no way to determine accurately from the applicant's W-2 forms what he earned from the employer in which quarter. However, since the applicant averaged well under $600.00 per week for the first 23 weeks of 1996 and for all of 1995, it is difficult to see how he could have ever averaged $696 per week over four calendar quarters. The commission therefore declines to calculate `one year's wages' by multiplying $696 by 52.

"Nor may `one year's wages' be based on `average annual earnings' as described in Wis. Stat. 102.11 (2). First, of course, Wis. Stat. 102.35 (3) does not use the term `average annual earnings.' Second, as explained above, the record does not contain sufficient information to permit the calculation of `average annual earnings.' (2) In this case, `one year's wages' shall be extrapolated from the applicant's 1996 earnings with the employer.

"The applicant's W-2 forms for 1996 shows the applicant earned $16,109.92 in `wages, tips and other compensation,' plus another $999.59 as an annual bonus for the prior year's performance, for the first 29 weeks of 1996 ending with his last day of work on July 22, 1996. Assuming the $16,109.92 figure accurately reflects his wages exclusive of the bonus, he would have earned $28,886.75 in 52 weeks, again exclusive of the annual bonus. Adding in the annual bonus, the applicant's annual earnings would be $29,886.34.

"That amount, then, is the monetary limit of the employer's liability. In calculating lost wages accrued to the date of the hearing, the weekly average of $574.74 per week ($29,886.34 divided by 52) shall be used.

"The employer paid temporary total disability from July 22, 1996 to August 12, 1996. The refusal to rehire liability does not accrue while a worker is receiving temporary disability, Kruger v. Belleville Printing, supra. Thus, the employer's accrued liability for lost wages is for the 30-week period from August 12, 1996 to the March 11, 1997 date of hearing.

"Thirty weeks of wage loss at $574.74 per week is $17,242.20, less the $2,924.82 the parties agree the applicant earned elsewhere in this period, for a total accrued wage loss to March 11, 1997 of $14,317.38. The remainder, $15,568.96 shall be paid to the applicant and his attorney as it accrues (or has accrued since the date of hearing.)

"The applicant approved an attorney fee under Wis. Stat. 102.26. At 20 percent, the fee on the amount accrued to the date of the hearing equals $2,863.48. Deducting the fee, the amount due the applicant within 30 days is $11,453.90.

"Jurisdiction is retained in the event the parties need the assistance of the department in computing lost wages accruing after March 11, 1997."

The ALJ's Order is deleted and the second, third and fourth paragraphs of the commission's Interlocutory Order set out below are substituted therefor.

NOW, THEREFORE, the Labor and Industry Review Commission makes this


The Findings of Fact and Order of the Administrative Law Judge are modified to conform to the foregoing and, as modified, are affirmed.

Within 30 days from the date of this order the employer- respondent shall pay the following:

1. To the applicant, Ronald Poetz, the sum of Eleven thousand four hundred fifty-three dollars and ninety cents ($11,453.90).

2. To the applicant's attorney, Robert T. Ward, the sum of Two thousand eight hundred sixty-three dollars and forty-eight cents ($2,863.48).

The unaccrued amount of Fifteen thousand five hundred sixty- eight dollars and ninety-six cents ($15,568.96) shall be paid as and if it accrues after March 11, 1997.

Jurisdiction is retained for such further orders as are consistent with this order.

Dated and mailed: January 15, 1998
poetzro . wrr : 101 : 8   ND 7.34

Pamela I. Anderson, Chairman

David B. Falstad, Commissioner

James A. Rutkowski, Commissioner


In its petition for commission review, the employer first contends that it did not unreasonably refuse to rehire the applicant. (3) Wis. Stat. 102.35 (3), provides as follows:

102.35 (3) Any employer who without reasonable cause refuses to rehire an employe who is injured in the course of employment, where suitable employment is available within the employe's physical and mental limitations, upon order of the department and in addition to other benefits, has exclusive liability to pay to the employe the wages lost during the period of such refusal, not exceeding one year's wages....

The "unreasonable refusal to rehire" statute applies to unreasonable discharges following a work injury, as well as simple failures to rehire. (4)

In an unreasonable refusal to rehire case, a worker has the burden of proving he or she was an employe with a compensable injury who was denied rehire or discharged. The burden then is on the employer to show reasonable cause for the failure to rehire or for the discharge. (5)

An employer must provide evidence showing to a reasonable degree of medical certainty that the worker cannot perform his or her old job or other available work, if it refuses to rehire a worker for that reason. (6) The supreme court and court of appeals have held that Wis. Stat. 102.35 (3), "must be liberally construed to effectuate its beneficent purpose of preventing discrimination against employes who have sustained compensable work-related injuries." Great Northern Corp. v. LIRC, 189 Wis. 2d 313, 317 (Ct. App., 1994), citing West Allis School Dist. v. DILHR, 116 Wis. 2d 410, 422 (1984).

In this case, the employer contends it discharged the applicant for safety reasons arising from a concern that he was susceptible to cummulative trauma injuries. However, the employer provides no expert medical evidence. It thus has not proven that the applicant suffered a cumulative trauma type injury, that he has a pre-disposition to such injuries, or that his job poses a risk for such an injury. Nor has the employer put on any medical evidence countering in any way the opinion of the applicant's doctor that he could return to full duty. In sum, the employer failed to meet its burden of proof, once the applicant established his prima facie case.

The employer next argues that the ALJ did not correctly calculate the amount of its liability under Wis. Stat. 102.35 (3). The commission dealt with that issue generally in the body of this decision. Finally, the employer argues unemployment insurance (UI) benefits should be subtracted in addition to the post-discharge wages in other employment. However, the commission consistently has not subtracted UI benefits from the liability imposed for an unreasonable refusal to rehire, nor does the commission consider the penalty "back pay" which would require a recalculation of UI payments. Neal and Danas, 7.34; Richard Giese v. Associated Contractors Corporation, WC case no. 89075597 (LIRC, March 4, 1992).



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(1)( Back ) This provision was recently amended to use a 52-week average. 1997 Wis. Act 38.

(2)( Back ) While the applicant's hourly rate of pay at the time of his injury is established in the record, his normal daily or weekly hours are not. Nor does the record permit the calculation of his average weekly wage in the prior four calendar quarters. Consequently, neither an average weekly wage under Wis. Stat. 102.11 (1)(a) or (d), nor an average annual earning under Wis. Stat. 102.11 (2) may be calculated. One could estimate earnings in the 52 weeks prior to the date of injury by adding the applicant's 29 weeks of 1996 earnings (with annual bonus) to 23/52nds of the applicant's 1995 earnings (without annual bonus.) Of course, the figure thus derived ($29,178.57) would not include recent increases in the applicant's hourly pay rate.

(3)( Back ) The employer does not pursue its argument, raised in a letter filed with its answer, that federal OSHA regulations prempt Wis. Stat. 102.35 (3).

(4)( Back ) Dielectric Corp. v. LIRC, 111 Wis. 2d 270, 278 (Ct. App., 1982).

(5)( Back ) 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) which specifically stated that "after an employe 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 employe." West Bend, at 149 Wis. 2d 123. See also Ray Hutson Chevrolet v. LIRC, 186 Wis. 2d 118, 123 (Ct. App., 1994).

(6)( Back ) West Bend, supra, at 149 Wis. 2d 126.