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

STEVEN T OPATKA, Applicant

MENASHA CORPORATION HARTFORD, Employer

WORKER'S COMPENSATION DECISION
Claim No. 1992047403

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 June 29, 2000
opatkst.wsd : 175 : 3   ND § 7.33

/s/ 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 him pursuant to Wis. Stat. § 102.35 (3). The applicant contended at the hearing that the employer had several positions available for him within his permanent restrictions that he could perform, such as operating a forklift, collating and working as an operator A. The applicant states that he does not contend that the employer was obligated to restructure a job to accommodate his light duty restrictions since there were fork truck jobs continuously being performed. The applicant contends that the employer was obligated to provide the applicant with one of these positions.

However, it was not established that the employer had any vacancies for a forklift operator. The employer was not required to lay off another employe in order to provide a position for the applicant. In Krause v. Alwin Manufacturing Company, LIRC Decision December 29, 1999 the commission noted that an employer did not have to restructure its work force to accommodate the applicant's permanent restrictions. The Court of Appeals reached a similar decision in Baker v. LIRC, Case No. 99-0067-FT (Wisconsin Court of Appeals, 1997). An employer may be found to unreasonably refuse to rehire an employe subject to Wis. Stat. § 102.35 (3) if it refuses to rehire an applicant without reasonable justification for suitable work which is available. In this case it was not established that there was suitable work available for the applicant.

The applicant admitted that the duties for a unitizer operator and a bobst folder as listed in job descriptions in the record were beyond on his permanent restrictions. Ms. Jacobsen, the employer's human resources supervisor, testified that the employer did not have any vacancies for forklift operator and that the collating department was moved to a new location, and personnel are no longer hiring through the employer's Harford facility. Ms. Jacobsen testified that a position with the collating department was not an option available for the applicant in the Hartford plant.

The evidence does not indicate that the work as a bobst folder or unitizer operator was within the applicant's restrictions and therefore was not suitable work. In addition it was not established that the employer had any vacancies for a forklift operator and that any work in the collating department was not available in the Hartford facility. The employer was not required to reorganize its work force or displace other employes from their current positions in order to make a position available for the applicant. The evidence did not indicate that there was suitable work available for the applicant within his restrictions subsequent to his being released to return to work with permanent restrictions. Therefore, it was not established that the employer unreasonably refused to rehire the applicant pursuant to Wis. Stat. § 102.35 (3).

cc:
ATTORNEY ROBERT C ANGERMEIER
ANGERMEIER & ROGERS LAW OFFICES

ATTORNEY ROBERT H DUFFY
QUARLES & BRADY LLP

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