LUZ E CARRASQUILLO, Applicant

EMMBER FOODS, Employer

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 March 23, 2001
carralu . wsd : 175 : 8  ND § 7.32 

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

The applicant asserts in her petition for commission review that the administrative law judge erred in determining that the employer did not unreasonably refuse to rehire the applicant pursuant to Wis. Stat. § 102.35(3). The applicant contends that the employer had work available which the applicant could perform following her release to return to work in December 1996 from her work related wrist injury, but the employer discharged the applicant without offering the applicant an alternative position. The applicant states that the employer had provided her work for over nine months following her injury performing light duty and that because the employer was required to rotate its employees, the employer could have easily rotated the applicant on a daily basis to cover the lighter work within either one of the two plants that the employer operates.

However, the employer was not required to create a permanent position to accommodate the applicant. Mr. Gilinsky, the employer's human resources manager, testified that he discharged the applicant on December 19, 1996, because given her permanent restrictions there was no work available for her with the employer. The applicant's permanent restrictions was for no freezer work, and no lifting greater than ten pounds, and no repetitive grasping, pinching or pulling.

Mr. Gilinsky testified that while the applicant was working on light duty she was put on temporary work within her restrictions. Mr. Gilinsky testified that the applicant's restriction of no working in the freezer precluded her from working with the employer, and that the employer decided to terminate her based on her permanent restrictions. Mr. Gilinsky noted that the laboratory job which the applicant felt qualified for required a degree to work there, which the applicant did not have.
Mr. Gilinsky testified that there are no lab assistance jobs and that the applicant was not qualified to do the regular lab job. Mr. Gilinsky testified that the applicant's duties in the lab were just make work and further that the labeling back-up position was a relief job, which required the position to rotate to other duties, which were outside the applicant's restrictions. Mr. Gilinsky testified that generally an employee needs about ten years of seniority to get that job and at the time of her injury the applicant only had about two years of seniority. Mr. Gilinsky also testified that the applicant could not work in the box room with her permanent restrictions.

The administrative law judge appropriately noted that the applicant possibly could do some jobs within the ten pound limitation but that the other restrictions of no freezer work and no repetitive grasping, pinching or pulling greatly limited the types of jobs that the applicant was able to perform. The administrative law judge credited Mr. Gilinsky's testimony. Based upon an independent review of the evidence in the record the commission has found nothing to warrant overturning the administrative law judge's credibility determination. Mr. Gilinsky credibly testified that the applicant did not have the technical expertise, seniority or education to qualify for other jobs available with the employer, and given her permanent restrictions, the employer had no other option but to terminate her employment. Under the circumstances, given the applicant's permanent restrictions and the lack of suitable work available with the employer following her release to return to work, the commission finds that the employer did not unreasonably refuse to rehire the applicant pursuant to Wis. Stat. § 102.35(3).

cc: 
Attorney Nelida Cortes
Attorney Joseph Danas, Jr.

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