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




Claim No. 94032785

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: July 14, 1998
scottmi.wmd : 101 : 8  ND 6.1  7.26    7.32

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner


This case arises from a claim for an unreasonable discharge/refusal to rehire brought by the applicant. After starting the claim, the applicant died. The personal representative of his estate, Jacqueline Scott, continued to press his claim to hearing.

The two issues decided by the ALJ, and now before the commission, are: (a) Can the applicant's estate maintain or continue the claim under Wis. Stat. 102.35(3), and (b) If so, did the employer unreasonably refuse to rehire the applicant under Wis. Stat. 102.35(3)? The ALJ answered the first question "yes" and the second "no;" in effect the ALJ heard the applicant's claim, but dismissed it as unproven. Because the commission agrees with the result reached by the ALJ, it affirms his decision.

1. Can the estate maintain the unreasonable refusal to rehire claim?

The first question is whether a deceased worker's estate may maintain or continue a claim for benefits which was brought by the worker. This issue has been considered by the commission previously.

The supreme court has held that neither an estate nor a dependent spouse may start, on behalf of a deceased worker, a claim not brought by a deceased worker during his lifetime. State v. LIRC, 136 Wis. 2d 281 (1987) (McKenzie). (1) The McKenzie court does not answer the question of whether an estate may maintain a claim for benefits begun by the worker during his lifetime. However, the inference is that an estate may maintain such an action, given that the McKenzie holding is limited to cases where the deceased applicant did not file for benefits during his lifetime.

Indeed, in a much earlier case, Milwaukee v. Industrial Commission, 185 Wis. 2d 307 (1924), the supreme court held that title and right to compensation continues after death. In that case, the deceased applicant's widow claimed and received temporary disability benefits outstanding to the point of the applicant's death, in addition to a death benefit. The McKenzie court characterized this holding as meaning that the spouse of a deceased disabled employe is entitled to the unpaid balance of an award for temporary disability made during the employe's lifetime. McKenzie, at 136 Wis. 2d 294.

In this case, of course, no award had been made for the unreasonable refusal to rehire claim at the time of the applicant's death. One might try to distinguish Milwaukee on that ground. Of course, in Milwaukee, the full amount of the award for temporary disability had not yet been established prior to hearing. Milwaukee, at 195 Wis. 310. Only after the employe's death did his widow prove the last eight weeks of entitlement or "balance on account of the temporary disability." Milwaukee, at 185 Wis. 308.

Much more recently, in Estate of Sanborn v. Milwaukee Transport, WC Claim no. 93028178 (LIRC, October 25, 1995), the commission affirmed an ALJ order which awarded benefits based on a claim filed before an applicant's death, but litigated and reduced to an award thereafter. Not only was the nature and dispute of disability at issue in Sanborn, but also causation itself. All these issues were resolved following a hearing after the applicant's death.

The commission awarded Sanborn's estate the temporary disability and permanent partial disability accrued as of the time of his death. Underlying the commission's award, of course, is the conclusion that benefits claimed by an applicant prior to his death, but awarded after his death, are property of his estate to the extent the benefits had accrued to the point of death. This decision, signed by the full commission, was not appealed.

The commission cannot conclude that a claim for temporary disability or permanent partial disability is materially different from a claim for an unreasonable refusal to rehire for the purposes of this issue. Consequently, a dead worker's estate may continue an unreasonable refusal to rehire claim started by the worker, but the award of course would be limited to lost wages to the time of death.

2. Did the employer unreasonably refuse to rehire (or unreasonably discharge) the applicant?

Wisconsin Statutes 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. (2)

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. (3)

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. On the other hand, if an employer asserts it fired the worker because she refused work that was within her restrictions, the employer may not rely solely on the restrictions set by an independent medical examiner if they conflict with those set by the injured worker's doctor. (4) The supreme court and court of appeals have held that sec. 102.35 (3), Stats., "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 applicant has made a prima facie case. He was an employe with a compensable (and in fact compensated) work injury and subsequently discharged. However, the employer has met its burden of proving reasonable cause for the discharge.

The ALJ's findings on this point may be briefly summarized. After the applicant's work injury, he underwent a drug test as part of the employer's policy on June 8, 1994. He was tested positive. Consequently, he was suspended from employment. He was re-tested on June 21 and July 11 in attempts to clear him to return to work. He failed each time, and was discharged after the second test.

He was subsequently reinstated. The employer normally allows a worker six weeks to "clear" after a first positive test, and the applicant had been given only five weeks from the first test (June 8) to the third (July 11). He was re-tested on August 10, and was negative (except for prescribed Darvon).

The applicant's reinstatement was conditional, however, on compliance with a "last chance agreement." Exhibit 2. The agreement, dated September 21, 1994, provided for 12 months of random screening not to exceed twelve tests in total.

The applicant took three more drug tests in the twelve month period ending on September 21, 1995, and passed each one. However, he was given yet another test on October 18, 1995, a month after the expiration of the 12-month period of the last chance agreement, when he was taken from the worksite to a hospital because he was not feeling well. He failed this test and was discharged on October 27, 1995.

Subsequently, the applicant obtained his own test from a sample given on October 31, 1995. Exhibits M and N. This was negative.

The employer's general policy allows for both random tests and tests after injuries. Exhibit 4. Regardless of how the October 18, 1995 test was characterized, the employer had the right to perform it. The employer's policy also provides that an employe who tests positive for illegal drugs would only be provided one chance for rehabilitation. Exhibit 5. Likewise, the September 21, 1994 last chance agreement provided for termination of employment in the event that any future substance abuse screening required by the employer.

On appeal, the applicant asserts that, since he made it through the last chance agreement, he may not be discharged for a single test which shows a positive result. The applicant also points out he passed an independent drug test after his discharge.

Of course, a negative test from an October 31, 1995 sample in no way discredits or invalidates a positive test from a sample taken two weeks earlier. Further, nothing in any policy of the employer indicates that if a worker provided a subsequent "negative" test shortly after the positive test, the employer would disregard the prior "positive" test. The re-testing in the summer of 1994 was to establish that the applicant was no longer using illegal drugs, not to invalidate the initial positive test.

Moreover, the commission is unpersuaded by the argument that upon completing the one-year term in the last chance agreement, the applicant was entitled to an additional "last chance." The last chance agreement specifically states the tests required thereunder were in addition to other tests as provided under the general policy. The last chance agreement provides for termination of employment in the event of any positive test. The general policy at exhibit 5 indicates that there would only be one "last chance" to retain employment in the event of a positive test. Nor can the commission conclude that the employer's drug policy creates unconscionable hardship, and indeed has held in other cases that violation of similar agreements establishes misconduct disqualifying a worker from unemployment insurance.







(1)( Back ) A dependent spouse may, of course, bring a claim for death benefits in his or her own behalf.

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

(3)( Back ) This "very correct standard" set out by 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).

(4)( Back ) The commission has previously held that, when an employe's doctor and an IME disagree on restrictions and the employer fires the employe for failing to return to work under the IME restrictions, the employer may not avoid liability under sec. 102.35 (3), by pointing to the IME. Comet v. LIRC, court of appeals case no. 84-1163 (May 22, 1985), cited in Neal & Danas, Workers Compensation Handbook, sec. 7.37 (3d Ed, 1990).

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