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

PAUL A VOGEL, Applicant

CAMPBELL TREE & LAND CO, Employer

WORKER'S COMPENSATION DECISION
Claim No. 1994050090

An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development held a hearing on January 13, 1998 and 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 the applicable law, records and evidence in this case, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The applicant, on August 26, 1994, strained a muscle in his upper back, felt immediate pain and a popping sensation. The applicant returned to work in mid-November of 1994, with restrictions. He quit his job on April 13, 1995, on the advice of his physicians who suggested that because of his physical condition he should find other work. He then started work as an LTE at King and worked until February of 1996, when he was laid off.

After the employment with King ended, the applicant sought the assistance of the State Division of Vocational Rehabilitation (DVR), which opened a file on April 16, 1996. DVR closed its file on February 17, 1997.

On May 22, 1996, the applicant's DVR counselor wrote to the employer the letter which is Exhibit B, and requested a work history from the employer. The cover letter for that form states:

"In working with Worker's Compensation claimants, it is generally preferred and most effective to try to return the injured individual to his/her previous position or to another more appropriate position with the original employer. This will be the primary objective in working with this individual. If this objective fails, however, I will try to find other employment for the individual."

The employer returned the form, dating it July 10, 1996, which is part of Applicant's Exhibit B. To the question "Do you anticipate this individual will be able to return to work with your company in any capacity?" the employer simply checked the "No" box, without explanation.

The applicant sent out a number of job applications, but not one specifically to the employer. During the time that the applicant was looking for work, he would stop at the employer's place of business and inform the employer's foreman that he was out looking for work, although he did not specify that he was looking for work with the employer. He found employment with another company, PSI, from the fall of 1996 until March 1997. The applicant earned $8,334.36 at that employment.

Ultimately, the applicant then filed a loss of earning capacity claim, and a hearing was scheduled for July 7, 1997. Prior to that hearing, the parties negotiated a settlement. Under the terms of the settlement the employe returned to work for the employer as a supervisory worker. The applicant then filed an application for this hearing, claiming an unreasonable refusal to rehire.

The employer did have a position which the applicant could have filled as of the retirement of another supervisory worker in September of 1996. Although the employer was able to cover the responsibilities of that position with its current staff, that position was offered to the applicant at the July 1997 loss of earning capacity hearing. The applicant was employed in that supervisory position with the employer as of the time of the hearing, although he was on a seasonal layoff.

The issue which must be decided is whether the employer refused to rehire the applicant, without reasonable cause.

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. (1)

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. (2)

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. (3) 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 clearly was an employe of the employer and was injured at work. He then returned to work, but was unable to continue in his job with the employer as a result of his injuries. The applicant, on the advice of his doctors, quit his job with the employer to accept lighter work. He informed his foreman that he had to leave his job as a result of his work injuries.

The ALJ held that the applicant was unemployed as the result of his own choice, and that in such a case, Wis. Stat. � 102.35(3) does not apply. Although the applicant left work for the employer on the advice of his doctors because he had difficulty performing the work as a result of his injuries, the ALJ concluded that the cessation of work was the applicant's choice, because he was doing the work, although his doctors advised him not to.

However, the commission cannot fault the applicant for continuing to work even against the advice of his doctors, until he was able to find lighter work, so that he would not have a period of unemployment. Nor can the commission find that because the applicant was willing to work in spite of his doctor's advice until he could find a position he was physically able to do, he could have or should have ignored his doctor's advice indefinitely. Had the applicant's doctors not advised him to find lighter work, had he not found lighter work, or had he told the employer he was leaving for a reason other than his physical inability, it may have been possible for the commission to conclude that the employe voluntarily terminated his employment under Wis. Stat. � 102.35(3). However, on this record, the commission cannot make that finding.

In West Bend Co., 149 Wis. 2d 118, the court held that whether the injured worker (Muckerheide) was an `employe' when she attempted to go back to work is legally irrelevant under sec. 102.35(3), Stats. The court determined that what is important is whether a worker was in employment status at the time of the injury.

"The use of the worked `rehire' indicates that present employment status is not a prerequisite to the remedy of rehiring afforded by the statute. One who is already an employe need not be rehired-he or she has already been hired. The statute refers to one who is not an employe but seeks to become one under sec. 102.35(3), on the basis of a prior employment status that existed when an injury occurred."

West Bend Co., 149 Wis. 2d 119. To the extent that it could be argued that the employe in West Bend did not quit but was laid off by the employer, the court in Link Industries, Inc. v. LIRC, 141 Wis. 2d 551, 556 (Ct. App. 1987), held that "`rehire' under sec. 102.35(3) means that if an employee is absent from work because of an injury suffered in the course of employment, the employee must be allowed the opportunity to return to work if there are positions available and the previously injured employee can do the work." Finally, the commission notes that "Section 102.35(3), as a part of the Worker's Compensation Act, is a remedial statute. Remedial statutes must be liberally construed to effect as reasonably as possible their beneficent purpose. To liberally construe the Act is to give it a meaning that conforms with this purpose. Link, 141 Wis. 2d 555, citing West Allis School Dist. v. DILHR, 116 Wis. 2d 410, 422, 342 N.W.2d 415, 422 (1984). In short, the commission cannot conclude that the law supports a rule that an injured worker who terminates her employment on the advice of doctors due to her physical condition from the work injury, and who so informs the employer, is automatically barred from the protection of Wis. Stat. � 102.35(3) because she, not the employer, terminated the relationship.

The next question which must be determined is whether applicant applied for rehire with the employer. In this case, the DVR counselor informed the applicant that he would be contacting the employer and the applicant signed a release form. The vocational counselor testified that he understood from the applicant that if there was a job available with the employer, the applicant would go to work. The counselor did not tell applicant to submit a formal application with the employer because of its response that nothing was available. The counselor believed that the facts and circumstances were that the applicant was looking for work.

In addition, the DVR counselor sent a letter to the employer which specifically informed the employer that the DVR preferred the applicant return to work for the employer in his old job or in some other position more in line with his physical ability. When answering the question "Do you anticipate this individual will be able to return to work with your company in any capacity?" The employer answered "No," thus leading the vocational expert to conclude that the employer had no work for the applicant. In addition, the applicant visited the employer on several occasions and informed his foreman that he was out looking for work. While he did not specifically ask if there was work available with the employer, this would not really be expected because the employer had already indicated it would have no work for him. Further, of course, the employer was aware the applicant had quit his job with it because of his physical restrictions. The commission finds that under the circumstances in this case, the applicant clearly put the employer on notice that he would like re-employment with it in a position which required less physical exertion than the position he held at the time he was injured.

In Ronald Hill v. LIRC and Marten Transport, Ltd., 184 Wis. 2d 101, 112 (Ct. App. [1994]) [Ed note:  citation corrected in online version.], the court held that the communication that would constitute "applying for rehire:"

"need not take the form of a written application, but may be accomplished through informal means, e.g. a telephone conversation. Furthermore, as a matter of common sense and logic, when a employee who cannot resume his previous position applies for rehire, he at the very least implies a willingness to accept work of a different nature."

In Hill the DVR had sent correspondence from the DVR to the employer, however, the record in that case revealed only the employer's responses, but did not contain copies of the letters sent to the employer. The court concluded:

"That the DVR was simply exploring the possibilities for Hill's rehiring is one inference to be drawn from the evidence. Another would be that Hill was interested in both truck driving and office positions, and the DVR was relaying that interest."

In this case, the commission has in the record the letter from the DVR to the employer and that letter clearly expresses an interest in returning to work for the employer. The letter, coupled with the fact that the applicant specifically informed the employer on several occasions that he was looking for work, alerted the employer to the need to advise the applicant when a position that he could do became available. In addition, in Hill the employer's responses specifically informed Mr. Hill that if he could no longer drive a tractor/trailer, i.e., return to his former position, the employer did not have a position for him. But it left open the possibility that Mr. Hill could reapply for any position which was open. In this case, the employer's response did not leave applicant even that option; he was simply informed that there were no positions for him.

Finally, the employer indicated it had a position which the applicant could have performed as of September of 1996, but it did not offer this position to the applicant because it did not understand that applicant wanted to return to work for it. The employer alleged that it believed that the DVR was merely requesting background history in the letter of May 22, 1996, even though the vice-president and general manager of the employer testified that he knew that DVR helped employes find work. He stated that his interpretation of the return to work box was whether the applicant could return as a mechanic, and all those positions were filled. However, that interpretation of the box is simply unreasonable as the question clearly asks about work in "any position." The letter accompanying the form also clearly states that the objective of the DVR is to find the applicant work in his former position, or if he was unable to perform that work, in another position with the original employer. Under the circumstances, the commission cannot conclude that the employer's refusal to rehire the applicant was with reasonable cause.

The employer had a position which the applicant could perform in September of 1996, but the employer failed to specify the exact date. The applicant testified that he found work for PSI in the fall of 1996 which ended in March of 1997. He earned $8,334.36 at that job. The employer offered work to the applicant on July 7, 1997.

In this record, the period of the employer's refusal to rehire began running on September 1, 1996. The applicant began working at PSI in the fall of 1996, and autumn happens after September 1. Therefore the commission must consider all of the wages applicant earned at PSI in determining what the applicant is entitled to receive because of the employer's refusal to rehire him.

The applicant's gross weekly wage when injured was $362.42. That figure multiplied by 44 weeks and one day equals $16,006.88. Subtracting the wages of $8,334.36 earned at PSI during the time in question, there remains $7,672.52.

The applicant also approved an attorney fee of 20 percent under Wis. Stat. � 102.26. The percentage fee is based on unreasonable refusal to rehire award. The total fee is thus $1,534.50 {20 percent of ($7,672.52)}. This shall be deducted from the applicant's total award and paid within 30 days. The amount due to the applicant within 30 days is $6,138.02.

ORDER

The findings and order of the administrative law judge are reversed. Within 30 days from the date of this interlocutory order, the employer shall pay all of the following:

1. To the applicant, Paul A. Vogel, Six thousand one hundred thirty-eight dollars and two cents ($6,138.02) as compensation for its unreasonable refusal to rehire the applicant.

2. To the applicant's attorney, John B. Edmondson, the sum of One thousand five hundred thirty-four dollars and fifty cents ($1,534.50).

Jurisdiction is reserved for such further orders and awards as are consistent with this decision.

Dated and mailed: December 9, 1998
vogelpa.wrr : 145 : 5 ND � 7.31

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission discussed witness demeanor and credibility with the ALJ, who found the employer's witness to be credible when he stated that he did not know that the applicant ever asked for work, for one thing, none of the witnesses testified that the applicant asked the employer specifically if he could return to work for it. The ALJ credited Mr. Grimm's testimony that he did not understand that the Department of Vocational Rehabilitation form was requesting work from the employer for the applicant. While the applicant did not specifically request work from the employer the commission finds for the reasons set forth in its decision that the applicant put the employer on notice that he was seeking work with it.

PAMELA I. ANDERSON, COMMISSIONER (Dissenting):

I am unable to agree with the result reached by the majority herein and I dissent. The majority finds that the letter and questionnaire from DVR put the employer on notice that the employe wanted to return to work with the employer. I do not agree. In this case the employer rehired the employe after his work injury. The employe then severed his employment relationship with the employer. The majority says it was because of his doctor's advice but there is some dispute if that was the actual reason because the doctor's report came sometime after he left the employer.

At the time of the hearing the employer offered the employe a job that had been vacant because a co-worker retired in September of 1996. The employer had not replaced the retired worker but had done the work with current workers. The employer had not gone to the hearing with any idea of offering the employe work but did so after mediation of the administrative law judge.

While the employe did return to the employer, he testified "When I went to the employer's place of business, those were social visits. They asked what was going on. I told them I was out looking for work. . . . After leaving the employer in April of 1995, after that day I never told anyone there that I wanted to work for them again."

The employer did not view the requests from DVR as a request of the employe to return to work for the employer. The employe did not ask the employer to accommodate his medical problems prior to leaving the employer. The employer reasonably believed that the employe had permanently left the employment. I believe there needs to be something more than a form letter from DVR in this case to alert the employer that the employe is interested in returning to work for the employer. I also note that the record did not show that the employer hired any new employe for work that the employe could have done during this time period.

For these reasons, I agree with the administrative law judge and would affirm the decision to find no unreasonable refusal to rehire.

Pamela I. Anderson, Commissioner

cc: ATTORNEY JOHN B EDMONDSON
EDMONDSON LAW OFFICE

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Footnotes:

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

(2)( 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).

(3)( 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).