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

GARY L LAMB, Applicant

TESKA TRUCKING, Employer

WORKER'S COMPENSATION DECISION
Claim No. 1995-017916


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 December 20, 2001
lambga . wsd : 175 : 8   ND § 7.33

/s/ David B. Falstad, Chairman

/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 the applicant following his January 11, 1995, injury in violation of Wisconsin Stat. § 102.35(3). The applicant states that the employer failed to establish any reasonable basis for failing to rehire him. The applicant states that the employer testified that it eliminated the applicant's position subsequent to his work injury because the truck he was driving was unprofitable, but that the employer failed to provide any evidence of that economic reason. However, Mr. Teska, the employer's owner, testified that the truck lease to De Boer was not profitable over a lengthy period of time while the applicant drove the route. Mr. Teska testified that subsequent to the applicant's injury he had to cancel the lease agreement with De Boer in February 1996, and later traded the semi truck involved with that lease for a dump truck. There was no evidence that the employer continued to operate any semi truck subsequent to the applicant's work injury, and it would seem reasonable to expect if the employer had a profitable operation that it would have continued the trucking operation. The fact that the employer terminated the lease with De Boer supports Mr. Teska's testimony that the route the applicant was driving was unprofitable. It was not established that the employer had any other suitable work available for the applicant within his physical restrictions.

The employer was not required to maintain an unprofitable truck driving position in order to leave a position open for the applicant when he could return to work. In addition, the employer was not required to create a position for the applicant. The evidence indicates that the employer replaced a milk truck driver in September 1996, but it was not established that the applicant had the required USDA Milk Hauler's Driving Permit, or that he could perform all of the work involved with that position within his physical restrictions. The administrative law judge appropriately noted that after the employer sold the semi trailer it probably could have hired the applicant to drive the new dump truck, but that there was no evidence of that work's legal or physical requirements, or the applicant's interest in returning to work at that time. Under the circumstances, the commission finds that the employer has established a reasonable basis for failing to rehire the applicant for economic reasons. The evidence did not establish that there was other suitable work available for the applicant, and therefore it was not established that the employer unreasonably refused to rehire the applicant pursuant to Wis. Stat. § 102.35(3).

cc: 
Attorney Lyle P. Schaller
Attorney David A Piehler


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