P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

DONALD A FALK, Applicant



Claim No. 1995034834

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 July 6, 2001
falkdon . wsd : 132 : 1  ND 5.9  5.39 

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner


The respondents have petitioned for commission review of the findings and order of the ALJ. The respondents argue that applicant is not entitled to TTD payments from the time of discharge until the end of the healing period. The ALJ found based on Brakebush Brothers Inc. v. LIRC, 210 Wis. 2d 623 (1997), that applicant's discharge "for cause" or "misconduct" does not relieve the employer of the obligation to pay the applicant benefits during his healing period. The commission agrees.

The respondents seek to distinguish Brakebush by noting that in Brakebush the applicant had not returned to work for the employer. The court held in Brakebush that the applicant's economic loss was not due to the fact that he had been discharged but the fact that he had been injured. In this case, the applicant had returned to work and therefore his discharge for threatening to kill other workers, and not his injury, was the cause of his economic loss. The respondents also point out a number of the commission decisions which state that if the employee's actions are the "analytic equivalent" of a quitting, that may justify cutting off TTD.

Both these arguments were recently addressed by the commission in Banach v. Bucyrus International Inc., WC Claim No. 1998050520 (LIRC Mar. 23, 2001). In Banach the commission stated:

The employer states that the Brakebush decision is distinguishable on its facts since the applicant in the Brakebush case was off of work due to his work injury at that time that he was discharged, while the applicant in our current case had returned to work at light duty for three months prior to his suspension and discharge. The employer states that once the applicant had returned to work and was absent without valid reason that his actions were tantamount to a refusal or abandonment of his job, and therefore he was not entitled to temporary total disability benefits and that under these facts this would be an exception to the general rule enunciated in the Brakebush decision. The commission has noted an exception to the Brakebush holding in the case of Wellsandt v. Chippewa County, LIRC Decision dated November 27, 1998. In the Wellsandt case the employee had returned to restricted work following his injury and was subsequently discharged for failing to replace the oil in the sheriff deputy's car while working under a last chance agreement. The commission stated in Wellsandt that there is support for reducing or denying temporary total disability benefits in an analogous situation of a refusal of suitable light duty work for reasons unrelated to the work injury during a healing period, and that such an exception to the Brakebush holding must rest on the conclusion that the applicant's conduct with respect to the oil change was the analytic equivalent of refusing an offer of work.

Thus, in Banach and Wellstadt the commission did not find a return to work and later discharge sufficient to distinguish the case from Brakebush. Likewise, the commission did not find the applicant's absence in Banach to be the "analytic equivalent" of a quitting. In Banach the employee was discharged for an extended absence. In Wellstadt an employee on a last-chance agreement was discharged for failing to perform a work duty. The respondents do not cite any case in which the commission has discussed the issue and determined that the employee's actions were the analytic equivalent of a quitting. Here too, while clearly the applicant's discharge was justified, it was not due to conduct that was "tantamount to a refusal of work."

The respondents also argue that applicant was no longer in a healing period because he returned to work with permanent restrictions. However, the applicant's doctor set the end of healing after the separation. Further, the commission has likewise addressed this argument in the past in Baker-Drayton v. St. Anne's Home For The Elderly, WC Claim No. 1995-038417 (LIRC Jul. 12, 1999):

A return to work does not necessarily mean a worker has reached an end of healing, and a doctor's release to work, particularly when the release is restricted, does not mean that healing is completed. The end of healing, or the healing plateau, may or may not be the same as the point at which an applicant can return to work subject to restrictions. However, if a worker in fact returns to work while she is still healing, the insurer is able to reduce the temporary disability payment proportionally based on wages. Wis. Stat. § 102.43(2). The burden of providing such work is on the employer under Wis. Admin. Code § DWD 80.47 which provides:

DWD 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 limitations of the employe is furnished by the employer or some other employer, compensation for temporary disability shall continue during the healing period.

The commission has not found that suitable work was offered when a worker initially is given suitable work and later is discharged for cause. The respondents argue that it is not fair that they be responsible to pay the applicant temporary disability benefits under these circumstances. As to the unfairness argument the commission again quotes from its decision in Baker-Drayton:

The respondent St. Anne's argues that it is not fair to award the applicant TTD as it had work available for the applicant but because of her actions she was unemployed. True, the employer had work and, putting aside the fact that it was ultimately the employer's decision to end the employment, the fact is the applicant was still healing and was restricted from working in positions she could have held with this employer, and other employers, but for the injury. Further, the benefits involved are temporary. The employe's right to benefits will end with the end of healing or if she finds work with this or another employer at a certain wage level. Finally, such arguments should be addressed to the Worker's Compensation Advisory Council and/or the Legislature, not the commission, particularly in light of Brakebush.

The second issue is whether the applicant was entitled to retraining benefits even though he had been discharged. The respondents are correct in stating that Brakebush only involved the TTD issue and did not address retraining benefits. The commission has refused to issue LOEC awards in cases where the worker has quit or been discharged. In Kummer v. Industrial Air Products, WC Claim No. 92019275 (LIRC Jun. 30, 1995), the commission stated:

In situations involving a termination or quit, the Commission and the Department exercise the statutory discretion to reopen the matter for assessment of loss of earning capacity only if the termination was without reasonable cause, or the quitting was due to physical or mental limitations, or to improper inducement to quit by the employer. This interpretation of the statute is consistent with the policy evident in section 102.44 (6)(g), Stats., which provides that if an employer in good faith makes an offer of employment which is refused by the employe without reasonable cause, the employe is considered to have returned to work with the earnings he/she would have received had it not been for the refusal.

The commission notes that it has discretionary authority to award or not award LOEC based on the statutory language of Wis. Stat. § 102.44(6). The commission finds no such discretionary authority to deny vocational rehabilitation benefits. The commission has on one occasion specifically addressed the argument that vocational rehabilitation benefits should be denied if the worker is discharged "for cause." In Gasper v. Wismarq Corporation, WC Claim No. 94067858 (LIRC Feb. 24, 1998), the employee was discharged for allegedly harassing female employees and having a bad attitude. The commission stated:

Regardless, the evidence submitted in this proceeding does not credibly support a conclusion that the applicant was discharged for misconduct or reasonable cause. Even were the evidence to support such a conclusion there is nothing in Chapter 102, or elsewhere in the law, which provides that vocational rehabilitation benefits may be denied because an individual was discharged for cause. Wis. Stat. § 102.61 provides that such benefits shall be provided to an individual who has received workers compensation and is receiving retraining pursuant to the federal retraining statute, as administered by the Department of Vocational Rehabilitation (hereinafter DVR). There is no 'reasonable cause' exception to this provision as the commission has interpreted as being found in Wis. Stat. § 102.44 (6)(g). It was not demonstrated that highly material facts were misrepresented or withheld from the DVR, or that the DVR applied an interpretation of the rehabilitation laws entirely outside the reasonable scope of interpretation. Accordingly, the applicant is entitled to vocational rehabilitation benefits for his periods of training. Massachusetts Bonding and Insurance Corporation v. Industrial Comm., 275 Wis. 505, 512, 82 N.W.2d 191 (1957). Benefits are not awarded prospectively, but assuming the applicant continues his training program with reasonable regularity, no impediment to additional vocational rehabilitation benefits is foreseen."

The respondents support their argument that vocational rehabilitation benefits should be denied by reference to the language contained in Wis. Admin. Code § DWD 80.49, in particular § DWD 80.49(9)(c), (1) which provides:

(c) If the employe is placed in or refuses to accept suitable employment, the self-insured employer or insurance carrier is not liable for any further costs of the specialist's services . . . .

However, Wis. Admin. Code § DWD 80.49 only applies if DVR finds the applicant is eligible for DVR services but DVR cannot provide such services. § DWD 80.49(2) authorizes the employee to select a private rehabilitation specialist certified by the department to determine whether the employee can return to suitable employment without rehabilitative training. § DWD 80.49 sets forth procedures that the private rehabilitation specialist must follow. § DWD 80.49 does not overrule Massachusetts Bonding.

Attorney Jack Bartholomew
Attorney Mark P. McGillis

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(1)( Back ) Respondents also cite Wis. Stat. DWD 80.49(2)(d) (2000) which of course did not exist at the time of injury or at the time of the DVR certified applicant for retraining and he completed his retraining.


uploaded 2001/07/16