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

GARY RAND, Applicant

AMPCO METAL INC, Employer

VIRGINIA SURETY COMPANY, Insurer

WORKERS COMPENSATION DECISION
Claim No. 93010320

The administrative law judge issued his Findings of Fact and Interlocutory Order in this case on August 30, 1994, following a hearing on May 17, 1994. The employer and the insurer (collectively, the respondent) have submitted a petition for commission review of the administrative law judge's Findings and Order. Thereafter, both the respondent and the applicant submitted briefs.

Prior to the hearing, the respondent conceded jurisdictional facts, an average weekly wage of $480.87, and a February 2, 1993 compensable injury. The respondent conceded and paid temporary total disability from February 23 through April 9, 1993, and April 27, 1993 through May 10, 1993 (all dates inclusive) with respective payments of $2,137.20 and $641.16. In addition, the respondent has conceded and paid $3,040 in compensation for a permanent partial disability of 5% compared to amputation of the hand at the wrist.

The issue is the nature and extent of disability beyond that conceded during the period from April 10 to June 28, 1993.
The commission has carefully reviewed the entire record in this case, including the briefs submitted by the parties. It hereby sets aside the Findings of Fact and Order of the administrative law judge and substitutes the following therefor:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

1. Generally.

The applicant worked for the employer for about 25 years before injuring his hand in an industrial accident in February 1993. At the time of his injury, the applicant was working as a machine operator. His doctor, Lewis Chamoy, M.D., fitted him with a special splint and, after some time off work, released him with a temporary restriction to one-handed work.

The applicant reported to work on March 23, 1993, and was assigned work sweeping floors. After a couple of days, the applicant's supervisor assigned him to work operating a machine. However, the applicant refused it because he contended it took two hands to do the work safely. This resulted in a meeting with the personal director who took the applicant's side and instructed the foreman to find the applicant one-handed work. According to the personnel manager, the employer had one-handed work, but that work was done by other employes, and the employer and the applicant's labor union could not agree to waive seniority to make the work available to the applicant. Since no one-handed work was available, the applicant was sent home and began receiving temporary total disability again.

On April 2, 1993, the applicant's labor union went on strike. The employer hired replacement workers. It also now had one-handed work available because of the strike. The employer's personnel director wrote a letter dated April 2 to the applicant stating:

"As you are probable [sic] aware, a work stoppage has been caused by U.A.W. local 115 at Ampco Metal. As a result of this action, a number of temporary light duty jobs have become available. In reviewing your current restrictions, relating to your worker's compensation claim, we have determined that we can now accommodate those restrictions, and provide employment to you at this time. Therefore you are requested to report to this office immediately for job placement."

The employe did not go into the employer's personnel office because he did not wish to cross the picket line. The respondent stopped paying his temporary total disability benefits on April 9.

Later, Dr. Chamoy revoked the temporary release to one-handed work for two brief periods, April 27 through May 10 and June 1 through June 27, 1993. As a result, the applicant was again totally restricted from work during those periods, but was able to do one-handed work from April 10 through April 26 and May 11 through May 30, 1993. On June 22, the applicant's doctor released the applicant to return to regular work the following Monday (June 28), noting only minimal pain. On August 30, 1993, Dr. Chamoy submitted a report stating that the applicant had plateaued with permanent disability.

2. Issues.

At issue in this case, as described by the administrative law judge, is the applicant's eligibility for temporary total disability in light of "the respondent's assertion that the applicant is not entitled to renewed periods of temporary total disability benefits for intermittent periods from April 10, 1993 (inclusive) to June 28, 1993 (exclusive), due to an alleged refusal to accept suitable light duty work within his restrictions without reasonable cause."

In its brief, the respondent makes two assertions. First, the respondent emphasizes the refused offer of light duty work. Second, it states that the applicant in effect removed himself from the work labor market by going on strike.

The distinction between these two assertions is important in this case. During the period of benefits in dispute, the applicant was only released to do one-handed work from April 10 through April 26 and from May 11 through May 30. A defense against liability based on an offer of suitable work within restrictions under sec. 80.47, Wis. Admin. Code, is available only during these periods. During the rest of the period at issue (April 27 through May 10 and June 1 through June 27), the applicant was totally restricted from work by his doctor and the respondent has not established otherwise. To defend against liability during these periods, the respondent relies on the argument that the applicant had removed himself from the labor market by participation in the strike.

3. Suitable work furnished on release to one-handed work?

The commission shall first consider the more narrow issue of whether the employer's April 2, 1993 letter to the applicant, coming as it did after the applicant's release to one-handed work but during a labor strike, triggered the operation of sec. 102.43 (2), Stats., and sec. Ind 80.47, Wis. Admin. Code. Those sections provide:

"102.43 (intro.) If the injury causes disability, [a] ... weekly indemnity shall be [paid during the healing period] as follows:

"...

"(2) If the injury causes partial disability, during the partial disability, such proportion of the weekly indemnity rate for total disability as the actual wage loss of the injured employe bears to the injured employe's average weekly wage at the time of the injury."

"Ind 80.47 Medical Release of employe for restricted work in the healing period. Even though an employe could return to a restricted type of work during the healing period, unless suitable employment within the physical and mental restrictions of the employe is furnished by the employer or some other employer, compensation for temporary disability shall continue during the healing period."

Section 80.47, Wis. Admin. Code, rule raises two questions: (1) was the employment within his restrictions "furnished" to the applicant, and (2) if so, was the furnished employment "suitable?"

The commission concludes first the employer furnished the applicant with work within his restrictions by virtue of the April 2, 1993 letter. The letter specifically states the employer would provide employment within the applicant's restrictions if he reported to the employer's office. It is true that the letter did not specifically set out the duties or rate of pay. However, that degree of specificity is not required by rule, statute or published court decision, as far as the commission is aware. Rather, this question is resolved on a case-by-case basis.

The commission and the department have generally held that the burden is on the employer to provide work within the applicant's restrictions. However, that burden was met in this case by the letter stating work within the applicant's restrictions was available. If the applicant wished to remain eligible for temporary disability benefits despite the April 2 letter, it was up to him to take the first step by reporting to work or at least inquiring further.

Under unemployment compensation law, an applicant may be found ineligible for benefits if he refuses an offer of suitable work without good cause under sec. 108.04 (8), Stats. It is generally held that such a job offer must be so definite that just saying "yes" creates a contract of hire. That obviously was not the case here. But this is not a unemployment compensation case.

Requiring more specificity for a job offer under unemployment compensation law than under worker's compensation law is based on valid distinctions between the two programs. First, in a worker's compensation case, an offer of work to an injured worker receiving temporary total disability usually involves the same employer who is required by law to return the applicant to work if it can. Thus, in worker's compensation cases, there is a basis for a continuing relationship between the employer and the applicant even in the absence of a contract of hire. Under unemployment compensation law, the employment relationship generally ends with a discharge, quit, or indefinite layoff. Thus, requiring a more specific job offer to resume or begin an employment relationship in unemployment cases is understandable.

Finally, even in unemployment compensation cases:

"A job offer is bona fide when:

"...

"All of the specifics of the new job (wages, hours and other conditions, and duties) are explained or are available to the claimant had the claimant simply requested them. A recall to `your old job' does not need the specifics spelled out if the claimant knows he/she is being offered the same job under the same conditions. Similarly, a letter stating that the employer has work for the claimant would be a bona fide offer if the employer was able to give specific information upon request by the claimant."

Wisconsin Unemployment Compensation Manual - Disputed Claims, Book 3, volume 1, part VII, chapter 5, page 6-7 (DILHR, May 1994).

In this case, the employer's personnel manager identified the jobs he had in mind for the employer and why he believed the work could be done within the applicant's restrictions. True, the employer did not first contact the applicant's doctor to determine whether the jobs were truly within the applicant's restriction to one-handed work. However, the commission is not persuaded that the employer's failure to do so shows that its offer was not made in good faith. Indeed, the employer's personnel officer testified that one of the jobs he would have offered had the applicant applied was done by a one-armed man who had since retired.

In short, the commission concludes that the employer did, in fact, meet the minimum requirements of sec. Ind 80.47, Wis. Admin. Code, for furnishing work within his restrictions to the applicant.

The next issue is whether such work was "suitable." Stated another way, is strike-replacement work within an injured worker's physical limitations "suitable?" The commission concludes that it is, in light of the commission's policy attempting to apply the worker's compensation law in neutral fashion in cases of labor disputes.

The commission cannot recall dealing with this precise issue before, and its research has not disclosed a reported Wisconsin appellate court case on the point. (1) The employer cites Randall B. Critchley v. Brenner Tank, claim no. 86-006890, (LIRC, October 17, 1990), a claim for permanent disability for loss of earning capacity following a strike at the employer's work place. In Critchley, the injured applicant never returned to work for the employer after permanent partial disability had been assessed on a functional basis. He was offered work within his restrictions a few months after his plateau, but he refused it because the union was out on strike. The strike ended when the union was broken, and the applicant returned a letter from the employer indicating his interest in recall. He never was recalled. He was eventually discharged when he did not respond within 3 days to a second letter four months later asking him if he still wished to be considered for recall.

The commission awarded loss of earning capacity, but did so as of when the strike ended and on the post-strike wage rather than the pre-injury wage. In explaining its decision, the commission wrote:

"Consistent with state and federal policies and laws which are intended to avoid any appearance of partisanship in labor disputes, e.g., sections 108.04 (10) [which provides that UC is paid for a lockout but not a strike] and section 7 of the National Labor Relations Act, the Commission interprets section 102.44 (6), Stats., to allow for a suspension of the determination of eligibility for loss of earning capacity, while a strike is in progress at an injured employe's employer. Once such a strike has ended, if the employer does not have a job with a wage paying at least 85 percent of what he/she had earned with the employer, then loss of earning capacity must be assessed. To hold otherwise would indirectly interfere with the right to strike guaranteed in section 7 of the National Labor Relations Act."

Critchley, slip opinion at 4.

If the labor dispute were not considered, the work offered in this case would unquestionably be suitable. By the same token, were it not for the strike, the applicant would not be eligible for continued temporary total disability benefits had he ignored the offer. Indeed, as stated above, the applicant ignored the offer precisely because he was on strike. This no doubt was his right, but the commission must conclude that a neutral application of the law requires the denial of benefits for the period while the applicant was able to work, and work was furnished to him, but he chose not to accept it because of the labor dispute.

In its brief, the respondent refers to sec. 108.04(10), Stats., by analogy, following the lead of the commission in Critchley. That section provides that unemployment compensation is not payable when a worker loses his job because of a strike. Of course, sec. 108.04(9)(b)1, is also analogous: it provides that benefits may not be denied to a worker who refuses an offer of new work if the position offered is due to a strike. In any event, the commission is not inclined to graft unemployment compensation law on the facts of this case, given the differences in the policy and purpose of the two programs, other than to re- affirm its intent to decide these cases in as "labor dispute- neutral" a manner as possible.

The commission therefore concludes that the applicant is not eligible for temporary total disability during the periods he was released to work on light duty, and employment within his restrictions was furnished by the employer, but he did not pursue the work because his union was on strike.

4. Eligibility during strike while totally disabled.

That leaves the question of whether the applicant is eligible for benefits during the periods when his doctor certified he could not work at all. The respondent contends the applicant should not be eligible during this period either because he has removed himself from the labor market by virtue of his participation in the strike.

In support of its position, the respondent cites to General Motors Corporation v. LIRC and Hoff, Court of Appeals case no. 83-2378, District IV unpublished decision (April 25, 1985). That case involved a retired worker who claimed temporary disability benefits after he had retired. The court concluded that the commission incorrectly found a "constructive wage loss." It noted that Mr. Hoff was retired, not working and receiving a pension. The court of appeals also noted that a supreme court case allowing for "constructive wage loss" dealt with permanent partial disability based on loss of earning capacity, not temporary total disability. The court went on to find that "[n]o evidence exists that [Mr. Hoff] had a real possibility of obtaining other employment had he not become disabled." General Motors Corporation, supra, slip op. at page 4.

The commission concludes General Motors Corporation is not on point for two reasons. First, the commission cannot conclude that no evidence exists that the applicant had a real possibility of obtaining other employment had he not been disabled. The applicant did not testify he had retired or was unwilling to work in general, only that he did not wish to cross his union's picket line. Indeed, on examination by the administrative law judge, it was established that the applicant worked elsewhere during the strike after his restrictions had ended. Second, unlike General Motors, this case involves a labor dispute. Consistent with its policy of neutrality, the commission declines to deny temporary total disability during periods where the applicant's restrictions from his work injury make him totally unable to work, even though the applicant's union is on strike.

In short, the applicant is eligible for temporary total disability during those periods when his doctor rescinded the release to one-handed work, and took him off work all together.

5. Award.

The commission therefore finds that the applicant is entitled to compensation for temporary total disability from April 27 through May 10, 1993 (a period of two weeks), and from June 1 through June 27, 1993 (a period of 3 weeks and 5 days.) At a weekly rate of $320.58, he is thus entitled to the sum of $1,870.05 for temporary total disability. The respondent is entitled to a credit of $641.16 for amounts already paid. The additional amount awarded under this decision is thus $1,228.89. The applicant consented to protection of a 20 percent attorney fee of amounts in dispute under sec. 102.26, Stats., to be paid from his award. Twenty percent of the additional amount awarded ($1,228.89) equals $245.78. The applicant's attorney is also entitled to $34.65 in costs. The fee and costs shall be deducted from the applicant's award and paid to his attorney within 30 days. The remainder, $948.46, shall be paid to the applicant within 30 days.

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

ORDER

The administrative law judge's Findings of Fact and Conclusions of Law are affirmed in part and reversed in part.

The decision of the administrative law judge is modified to conform to the foregoing and, as modified is affirmed.

Within 30 days from the date of the decision, the employer and its insurer shall pay all of the following:

(1) To the applicant, Gary Rand, the sum of Nine hundred forty-eight dollars and forty-six cents ($948.46) for temporary total disability.

(2) To the applicant's attorney, Michael Gillick, the sum of Two hundred forty-five dollars and seventy-eight cents ($245.78) as attorney fees and thirty-four dollars and sixty-five cents ($34.65) as costs.

Dated and mailed April 5, 1995
rand1ga.wrr : 101 : 8 ND § 5.9 § 5.10

Pamela I. Anderson, Chairman

Richard T. Kreul, Commissioner

James R. Meier, Commissioner

MEMORANDUM OPINION

The commission did not confer with the administrative law judge under Transamerica Ins. Co. v. ILHR Dept., 54 Wis. 2d 272, 283-84 (1972), because its partial reversal of his decision did not depend on a different impression of witness credibility, but on the legal issue of whether the respondent furnished suitable work under sec. Ind 80.47, Wis. Admin. Code. The administrative law judge found that the respondent failed to meet its burden of proof in this regard. As a basis for this finding, he cites the absence of specificity of the offer, the absence of steps by the employer to clarify the offer or make certain that it met the approval of the applicant's doctor, and the fact the respondent did not pay an "undisputed period" temporary total disability.

As noted in the body of its decision, the commission believed the employer's April 2, 1993 letter, standing alone, was sufficient to meet sec. Ind 80.47, Wis. Admin. Code. The commission does not see an absence of good faith in the employer's failure to clarify an already sufficient offer. Further, as discussed in the body of this decision, the employer did dispute its liability for the period from June 1 to June 28, 1993, even though Dr. Chamoy had opined the applicant could not work during that period.

cc: ATTORNEY DANIEL J STANGLE
OTJEN VAN ERT STANGLE LIEB & WEIR SC

ATTORNEY MICHAEL H GILLICK
MURPHY GILLICK WICHT & PRACHTHAUSER

[ Search WC Decisions ] -  [ WC Legal Resources ] - [ LIRC Home Page ]

Footnotes:

(1)( Back ) The commission has examined reported cases from other jurisdictions, but these cases generally involve quite different statutory requirements and so are not on "all fours." For example, Gibson v. Rosewood Forest Products, 115 Ore. App. 127, 836 P.2d 1365, 1992 Ore. App. LEXIS 1708 (1992) and Boyles v. Lum and Utti, 122 Ore App. 276, 857 P.2d 22, 1993 Ore App. LEXIS 1290 (1993) rest in part on an injured worker's statutory duty to make reasonable efforts to find work during periods of temporary disability. Likewise, the fact that Minnesota law permits an applicant to receive temporary disability even though his wage loss was directly caused by a misconduct discharge was a crucial fact in the Minnesota Supreme Court's decision in Fielding v. Hormel Company, 439 N.W.2d, 1989 Minn. LEXIS 111 (1989). See also 1C Larson, Workmen's Compensation, section 57.64(c) (1994).