STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)
SANDRA L KRAUSE, Applicant
ALWIN MFG COMPANY, Employer
TRANSPORTATION INSURANCE CO, Insurer
WORKER'S COMPENSATION DECISION
Claim No. 1995053285
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 makes the following:
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. Facts.
The applicant sustained a compensable injury to her right shoulder at work in March 1995. She eventually underwent surgery. She was able to work thereafter, subject to restrictions.
The applicant's work restrictions are set out in exhibit C. After her recovery from the surgery, her doctor released her to work in May 1995 subject to a restriction to sedentary (no more than 10 pounds lifting) with no above-the-horizontal use of her right shoulder. In July 1995, her surgeon set a 10-pound lifting limit. After some time off work in January 1996, the applicant was released to work subject to a restriction against overhead work or any lifting with the right arm.
Following her release in May 1995, the applicant worked in light duty subject to the temporary limitations set out above for nearly a year. Her restrictions precluded work in the assembly department where she had been assigned before her injury, but permitted work in the press department. She testified she ran every press in the back area, ran a riveter, ran a grinder, did spot welding, and numerous other things. Transcript, page 26-28. Her testimony indicates she was a "helper" but she denies being a mere assistant in these jobs. Evidently, the applicant was what is commonly called a "floater" who would do a specific task by herself; she "helped" in the sense that she would be assigned to whatever job function had a backlog or was in danger of running behind. Transcript, page 27- 30. She did acknowledge that these jobs were in the press department, and that she could not do her former job in the assembly department. Transcript, page 31.
In February 1996, the employer's management concluded that the applicant could no longer be provided with work within her then temporary restrictions. Exhibit 11 documents a discussion that indicates that while the employer had carved out a niche for the applicant in the press department, maintaining the niche long-term was hindering the employer's operation methods and procedures. The employer's management concluded that the applicant would remain off work until her restrictions changed or work became available.
At the hearing, the employer's human resources director, Gordon Church, testified the applicant was taken off work because the employer could no longer accommodate her restrictions (transcript, page 33) and could not keep her busy for 40 hours per week (transcript, page 44). This testimony was reiterated by the employer's director of manufacturing, Glen Thiede (transcript, page 83). Thiede also testified that the reason the employer could not keep the applicant busy was that it had lost its second largest client. Transcript, page 55.
Mr. Thiede also testified that the applicant could not perform all the tasks of production operator, even in the press department. Thiede's testimony indicates that the employer did not employ individuals on a permanent basis if they could not do all of the jobs in their cell (though the employer might assign such a worker to a different department), and that the applicant could not do all of the jobs in her cell. Transcript, pages 75-77. Mr. Thiede also testified that the employer attempted to follow a "team concept" to avoid workers suffering from cumulative trauma. Transcript, page 75.
He admitted that he had not been getting complaints from coworkers about the special duties given the applicant. Transcript, page 84. He did testify that he had received complaints from supervisors, apparently about finding work for the applicant to do. Transcript, page 84. He also testified the employer had no employes who were permanently provided work that came within the applicant's permanent work restrictions, transcript, pages 54-55, or who could not do a majority of the work in a cell. Transcript, page 82.
Mr. Thiede also testified that the applicant was doing "indirect work" or non- productive work approximately 41 percent of the time while she was working in light duty during her healing period from May 1995 to February 1996. This testimony is drawn from exhibits 3 and 4, which are basically summaries of the time the applicant spent doing various jobs in that period. As far as the commission can tell, the record does not present any reason to question those figures. Mr. Thiede also testified that a direct labor production worker normally averages 3 to 5 percent in indirect work. Transcript, page 56.
At any rate, after the meeting on February 5, 1996, the applicant was escorted from the employer's workplace by a supervisor. She has not worked for the employer since. She received temporary disability until December 1996, when the employer received word her restrictions were permanent. At that point, the employer formally fired her. See exhibit B.
The record also demonstrates that the applicant was a highly competent, willing worker, even while she was on light duty after her injury. Indeed, she earned good performance reviews from her supervisors, Exhibit D.
In June 1996, her doctor imposed what eventually became her permanent restrictions: no more than 10 pounds occasional lifting and carrying; no crawling and climbing; only occasional pushing, pulling and reaching. Her doctor opined that these restrictions prevented her from returning to her former job, but that she could do other work within the restrictions. Applicant's exhibit C. The doctor reiterated the restrictions in August 1996, and made them final in December 1996. Exhibit 10.
2. The law.
The applicant contends the employer is liable for an unreasonable refusal to rehire under Wis. Stat. § 102.35(3). That section provides in relevant part 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. (3) The court of appeals has also recognized that business decisions, such as eliminating a worker's position to reduce costs and achieve efficiency, may provide reasonable cause for a refusal to rehire, at least as long as the asserted business reason is not a pretext. Ray Hutson Chevrolet v. LIRC, 186 Wis. 2d 118 (Ct. App. 1994). The supreme court and court of appeals have also 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).
3. Discussion.
In this case, the applicant has established that she was an injured employe who was discharged. Thus, she has made a prima facie case, and the burden shifts to the employer to show reasonable cause for her discharge.
The employer's position, essentially, is that while it provided light duty temporarily while the applicant was healing, it has no duty to provide such work indefinitely. The employer contends it could reasonably discharge the applicant based on lack of lighter duty work and her inability, on a permanent basis, to be able to perform all of the tasks in a cell.
An employer need not make work for an injured worker to avoid liability under Wis. Stat. § 102.35(3). Further, although it is tempting to analogize, an employer's duties Wis. Stat. § 102.35(3) are not identical to its duties under the provisions of the state fair employment act dealing with disability discrimination or the Americans with Disability Act. Nonetheless, while an employer does not have to make work, the statute does require an employer to rehire a worker where there is suitable work available within the applicant's restrictions. There is, of course, no bright line between making work and providing suitable work; instead the concepts intersect in a grey area where the questions of accommodation and pretext arise.
The commission has dealt with the applicability of Wis. Stat. § 102.35(3) in cases where an injured worker is able to do light duty work in prior cases. In Roberts v. Moores Food Products, aff'd sub nom. Moores Food Products v. LIRC and Andrea Roberts, case no. 94-1815, (Wis. Ct. App., December 20, 1994), Ms. Roberts was an injured line worker who developed upper arm symptoms from repetitive work. During her healing period, Roberts was given lighter "online" tasks and lighter "offline" tasks, in a forty-sixty split. When Roberts reached an end of healing, the employer discharged her because her permanent restrictions prevented her from doing many of the "online" tasks the employer expected of its workers. The employer argued that it could not have one employe doing only lighter work as it rotated all its employes among the online and offline work to "relieve boredom."
In Moores Food Products, the commission concluded not only that the employer had available suitable work for injured worker Roberts, but also that it unreasonably refused to provide it to Roberts after she reached an end of healing. The available suitable work in that case, of course, was the light duty work Roberts had been performing during her healing period. The court of appeals in Moores Food Products agreed with the commission's imposition of Wis. Stat. § 102.35(3) penalty, noting with approval the five factors which the commission cited in its decision on the issue of whether the employer had reasonable cause for refusing to provide the available suitable work.
Those factors were: (1) the tasks the injured worker performed while on light duty were still available after she was placed on permanent disability; (2) those tasks were regularly-scheduled jobs that the employer needed to have performed on a continuing basis; (3) the rotation of workers between the lighter and more difficult work was not done as a matter of consistent company policy; (4) several workers were assigned to lighter online tasks indefinitely or permanently; and (5) the employer had made an exception for the rotation policy for another worker with permanent partial disability who did not rotate through the production line. Moores Food Products, supra, slip opinion, at page 6-9.
Although the commission found an unreasonable refusal to rehire in Moores, it reached the opposite conclusion applying the same factors and found no unreasonable refusal to rehire in Metz v. Rexnord Plastics, WC case no. 94050950 (LIRC, September 4, 1997), aff'd sub nom. Metz v. LIRC, case no. 97- CV-317 (Wis. Cir. Ct., Ozaukee County, May 8, 1998). In Metz, the commission noted that while the tasks that Ms. Metz did while on light duty were still available after she reached a healing plateau and that these were regularly-scheduled tasks that needed to be done on a continuing basis, it appeared the employer was in the process of phasing out the machines Ms. Metz could operate and replacing them with machines she could not operate. In addition, the commission noted that the employer had an established practice of rotating workers, and no other workers were assigned lighter work permanently.
Similarly, in Natalie Baker v. LIRC, case no. 97-0067-FT (Wis. Ct. App., 1997), the court of appeals affirmed the commission's denial of benefits under Wis. Stat. § 102.35(3). There, about the time of a worker's injury, the employer reorganized job classifications for purely commercial purposes and determined that the injured worker's physical restrictions could not be accommodated within any of the new job descriptions. Ms. Baker argued that the employer should have made a new job for her because she could do at least 7 of the available 29 tasks, even though no single new position comprised those seven tasks.
The court of appeals held:
...Stated another way, Baker argues in essence that West Salem's refusal to rehire was unreasonable because, although West Salem had reorganized in a manner that made it impossible to accommodate her within the new job descriptions, it could have created a special job description for her from some of the job tasks she could perform.
...[However, a]lthough there were some job tasks Baker could perform in the West Salem plant, there was no `suitable employment' after reorganization that was available within Baker's `physical and mental limitations. [Citations omitted.] Stated otherwise, the ability to perform part of a job is not tantamount to being able to discharge the requirements of `employment,' and employment which includes work from which Baker was precluded by physician's orders is not `suitable' because it is not within Baker's limitations."
Baker, supra, slip op. at 6-7.
The court in Baker went on to note that Ms. Baker did not contend that the reorganization was a mere pretext for the decision not to rehire her. Noting that the court in Ray Hutson Chevrolet v. LIRC, supra, found that a legitimate business decision based on economic efficiencies could constitute reasonable refusal to rehire, the Baker court concluded that the nonpretextual reorganization coupled with Baker's inability to perform the tasks within her reorganized job description made the employer's refusal to rehire "reasonable."
In sum, as the court in Baker holds, an employer does not have to restructure its work force to provide a job for the applicant. Nonetheless, it is clear from Moores and Metz that employers have some duty short of restructuring to accommodate a worker's restrictions, even if the employe is not able to perform all the duties in a formal job description. The five-factor test in Moores provides an analysis of whether the employer has met that duty. Running through the analysis as well is the requirement that the employer's asserted reason not be a mere pretext.
In this case, the commission concludes the employer has shown reasonable cause for discharging the applicant. The employer's witnesses assert that the applicant's inability to perform all of the jobs in a position description or cell prevented her from being fully employed. Mr. Thiede testified, credibly, that while working from May 1995 to February 1996, the applicant was engaged in non-productive work fully 40 percent of the time, as compared to 5 percent for other workers. The commission acknowledges that the 40 percent figure was obtained during a period before the applicant reached an end of healing. On the other hand, the restrictions the applicant was working under by July 1995 were not significantly different than the permanent restrictions imposed in December 1996. It is therefore reasonable to conclude the ratio of non-productive work would not have been significantly different in December 1996 than it was in February 1996.
In addition, Mr. Thiede testified that the employer had lost a customer, decreasing the
productive work available to the applicant even further, and that supervisors had
difficulty finding work for the applicant. Further, while the employer does provide light
duty to workers with temporary restrictions, Mr. Thiede testified that the employer also
that workers generally must be able to perform all the jobs in their cell, and that the
employer has no history of indefinitely or permanently accommodating workers whose
permanent restrictions prevent them from performing all the jobs in a cell.
The commission therefore finds that the employer has established reasonable cause for
discharging the applicant, and may not be held liable under Wis. Stat. § 102.35(3).
ORDER
The findings and order of the administrative law judge are reversed. The application is dismissed.
Dated and mailed December 29, 1999
krause.wrr : 101 : 5 ND § 7.32
/s/ David B. Falstad, Chairman
/s/ Pamela I. Anderson, Commissioner
/s/ James A. Rutkowski, Commissioner
MEMORANDUM OPINION
The commission conferred with the presiding ALJ concerning witness credibility and demeanor. He indicated he did not credit the testimony of Messrs. Thiede and Church that the loss of a customer resulted in less work for the applicant, or that there was not enough work for the applicant generally. Indeed, the ALJ characterized such testimony as hearsay in the absence of supporting documentation. However, the commission is not persuaded that the testimony of the employer's director of manufacturing (Thiede) on these points is in fact hearsay, or that his testimony is legally insufficient without supporting business records.
Nor does the commission believe Messrs. Thiede and Church were incredible witnesses. The employer allowed the applicant to return to light duty work, and remain in such work for several months, despite her spending 40 percent of the time in nonproductive work. Indeed, the employer transferred the applicant to a different department to enable her do such work. While the employer may have provided business records to bolster its case, nothing in the record leads the commission to doubt that the employer lost a large client, that it had an effect on the employer's production, that the applicant could not perform all the duties in her cell, or that she had to spend more time in non-productive activities than normal because of her injury.
By the same token, the commission acknowledges that the applicant's work history and performance evaluation demonstrate that she was an exemplary worker, even after her injury. Nonetheless, before holding the employer liable for what is essentially a statutory penalty, the commission must conclude that it did not have reasonable cause to return the applicant to available work. On this record, the commission cannot reach that conclusion.
cc: ATTORNEY WILLIAM KULKOSKI
OLSON KULKOSKI GALLOWAY & VESELY SC
ATTORNEY JOHN HAASE
GODFREY & KAHN
Appealed to Circuit Court.
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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.