NAEDENE L GIGSTEAD, Applicant

EMERSON ELECTRIC COMPANY, Employer

EMERSON ELECTRIC COMPANY, Insurer

The applicant filed an application for hearing claiming, among other things, an unreasonable refusal to rehire under Wis. Stat. § 102.35(3). An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development heard the unreasonable refusal to rehire claim on October 17, 2001. He issued a decision finding an unreasonable refusal to rehire, and ordering payment, on November 5, 2001. The employer filed a timely petition for commission review.

The commission has considered the petition and the positions of the parties, reviewed the evidence submitted to the ALJ, and conferred with the presiding ALJ. Based on its review, the commission makes the following:

The applicant was born in 1963. She began working for the employer in November 1996. She ran machines in the employer's machine shop. The job involved putting castings on machines, and making minimal adjustments. The applicant and the employer both describe the duties as involving extensive or extreme repetition.

The applicant sustained a conceded bilateral carpal tunnel injury from her employment exposure to repetitive hand and arm movement, with date of injury of September 24, 1997. The applicant underwent carpal tunnel surgery, and returned to work in January 1998. She first did some type of drilling job, which was light duty. She then transferred back to the end shield department where she did lathe work, which the applicant testified was repetitive motion work. The employer's "employment supervisor," Bonnie Rankin, testified it was difficult to keep people with restrictions working at the lathe job.

In February 1998, the surgeon who did the carpal tunnel repair, John Bax, M.D., Ph.D., noted that the applicant was regaining aching and paresthesia symptoms in her right hand, even though the employer was staying within the restrictions he imposed. Nonetheless, Dr. Bax continued, the work she did in the end shield department was aggravating her hands enough to cause a recurrence of symptoms. The doctor thought she should "request to be transferred to a different line of work, one that does not aggravate her hands."

By April 1998, however, the applicant was back in the end shield department at the lathe job. In April 1998, Dr. Bax reported the February 1998 symptoms had resolved. However, he thought the best option for the applicant was to try a variety of jobs within her restrictions, which would hopefully not aggravate her hands.

On May 6, 1998, Dr. Bax noted that the applicant's electrodiagnostic test had returned to normal, essentially meaning her compression neuropathy had resolved. He continued:

"The fact that she has symptoms during certain jobs indicates that she has a positionally related irritation of the median nerve. It is my recommendation that her employer . work with Ms. Gigstead on finding jobs and tasks for her to do that do not cause her symptoms. Ms. Gigstead will try to work with the company and help them define the jobs that do not cause her symptoms or cause her the least amount of symptoms."

Exhibit 2, Bax note of May 6, 1998.

On July 7, 1998, Dr. Bax completed a medical report on form WKC-16 which diagnosed bilateral carpal tunnel syndrome, with a 3 percent PPD at each hand due to residual symptoms of compression neuropathy of the median nerve at each wrist. He set restrictions of "no repetitive motions, constant high force gripping, frequent extremes of wrist position, and vibratory tools." He referred back to his May 6, 1998 note for additional comments.

Thereafter, the applicant continued to work for the employer in the lathe job until August 3, 1998. At that point she injured her shoulder at work while moving a bin of parts. She saw Joseph Szot, M.D., who referred her to Daniel Linehan, M.D., who treated her shoulder injury. While the shoulder injury healed, Dr. Linehan restricted the applicant to one-handed work.

The applicant then experienced a recurrence of her carpal tunnel symptoms which led her to return to Dr. Szot on October 20, 1998. He noted a positive Tinel's sign on the right (which is diagnostic for carpal tunnel syndrome), for which he referred the applicant back to Dr. Bax.   Dr. Szot noted:

"We also had a long discussion about the possibility that she may need to find other employment and she is actively pursuing this. The thinks [sic] the work at Emerson does aggravate her musculoskeletal and carpal tunnel complaints and is currently looking for possible clerical work."

Exhibit A, Szot note of October 20, 1998.

The applicant later saw Dr. Bax on November 18, 1998. He noted in his November 18, 1998 letter to Dr. Szot:

"You have taken the applicant off work completely, and over the last week her right hand has improved. It sounds as if she is overusing her right hand. If her work will accommodate, it is probably best that she perform sedentary work or deskwork. If that is not possible, she should be off of work."

Exhibit L, November 18, 1998 note from Bax.

The applicant brought these restrictions to the employer shortly after this visit. Employment supervisor Rankin told her there was no sedentary or desk work for her. According to the applicant, she called twice more that week and several other times, and was told that there was no work. She never returned to work for the employer.

There is a considerable divergence in testimony about what happened next. The applicant recalls talking with human resources manager Lackie in October or November 1998 about schooling to allow her to get away from the extensive or extreme repetition in her job, or the possibility of a new job. Human resources manager Lackie and personnel supervisor Rankin testified that they had a meeting with the applicant in late November 1998, which ended inconclusively, though Lackie says he told the applicant to reapply if her condition improved.

In December 1998, Mr. Lackie decided he wanted to "stop the file," and told Rankin to write the December 22, 1998 letter in exhibit B, which states:

"Dr. Bax's WKC-16, dated 7/7/98, states that your healing period has ended and you have permanent restrictions. We have attempted to keep you at work with those restrictions. Your most recent restriction, dated November 18, 1998, limits our ability to find suitable work for you even more.
...
"Because we can no longer find any work within your restrictions, effective this date, your employment with Emerson Motor Company has been terminated."

In late December 1998, Dr. Linehan lifted the one-handed work restrictions. By January 12, 1999, the applicant's condition had dramatically improved, as noted by Dr. Bax in a letter of that date. Exhibit L. He thought clerical employment, even using a keyboard, would be a good fit for her. He reiterated his July 1999 restrictions against repetitive use of the hands and arms, constant high force gripping, extremes of wrist position, and use of vibratory equipment. However, he withdrew his November 1998 restriction to sedentary work.

The applicant did not contact the employer about re-employment after getting Dr. Bax's January 1999 restrictions. If she had, however, personnel supervisor Rankin testified she would have had to look very hard for a job within those restrictions, though occasionally such work is available.

The applicant brings her claim under Wis. Stat. § 102.35(3), which provides in part:

"102.35(3) Any employer who without reasonable cause refuses to rehire an employee who is injured in the course of employment, where suitable employment is available within the employee's physical and mental limitations, upon order of the department and in addition to other benefits, has exclusive liability to pay to the employee the wages lost during the period of such refusal, not exceeding one year's wages...."

The "unreasonable refusal to rehire" statute applies to unreasonable discharges following a work injury, as well as simple failures to rehire. (1)   Wis. Stat. § 102.35(3) "must be liberally construed to effectuate its beneficent purpose of preventing discrimination against employees who have sustained compensable work-related injuries." (2)

In an unreasonable refusal to rehire case, a worker has the burden of proving he or she was an employee with a compensable injury who was denied rehire or discharged. The burden then is on the employer to show reasonable cause for the failure to rehire or for the discharge. (3)   An employer must provide evidence showing to a reasonable degree of medical certainty that the worker cannot perform his or her old job or other available work, if it refuses to rehire a worker for that reason. (4)

A worker whose employment has been terminated need not report to work in order to recover under Wis. Stat. § 102.35(3), nor must an employee -- particularly a terminated employee -- prove suitable work was available to the employer. (5)   On the other hand, while an injured worker need not formally reapply when released to his or her old job or when terminated while on disability leave, if the worker is not able to return to his or her old job the worker must tell the employer he is interested in other work. (6)

In this case, the applicant has made her prima facie case. She was an employee of the employer who suffered an injury and was terminated. The burden thus has shifted to the employer to show reasonable cause for the discharge.

The commission notes at the outset that, whatever transpired in November and December 1998, the employer discharged the applicant with its December 22, 1998, letter which says nothing about reapplying for work. Because her employment was terminated, she was under no duty to present herself for work upon reaching an end of healing in early 1999. Moreover, because the discharge was based on the applicant's inability to perform her old job or other available suitable work, the employer must provide medical evidence documenting that inability.

However, the commission is persuaded that the employer has met its burden in this case, and has shown that it had no available work within the applicant's restrictions. Dr. Bax's work restrictions, including the restriction against repetitive use of the hands and arms, has been frequently documented including by his January 13, 1999 return-to-work slip. Further, the employer has established that its regular production jobs fell outside Dr. Bax's restrictions. Mr. Lackie testified that all of the production jobs were repetitive, involving work on 4,000 to 4,500 motors per day, which exceeds the 2,000 to 3,000 repetitions defined on Dr. Bax's return-to-work slips as repetitive. The applicant herself described the assignments she had after her injury, doing the lathe job and the wash line work, as repetitive. While Dr. Bax indicated that "it sounded as if employer [was] staying within" his restrictions while the applicant was on the lathe job in February 1998, he acknowledged it still exacerbated her symptoms. The applicant herself told Dr. Szot she believed the work aggravated her symptoms even after she reached a healing plateau from her work injury.

In addition, both Dr. Bax and Dr. Szot referred to a change in line of work periodically in their notes. Dr. Bax, particularly, seems unsatisfied with the lathe job, indicating (a) in February 1998, that she should be transferred to a different line of work; and (b) near the end of healing in May 1998, that a variety of tasks and jobs would be most helpful in reducing her residual symptoms. In his January 12, 1999 letter, Dr. Bax recommended clerical employment.

In sum, the commission is persuaded that all the employer's production jobs involved repetitive use of the hands, and that other work, including clerical work, was not available. The commission infers that Ms. Rankin's testimony that she would have to "look very hard" for work within the applicant's permanent restrictions set in January 1999, and that some only occasionally became available, to mean no such work was available when the employer discharged the applicant. While the applicant commendably tried to work at repetitive jobs despite Dr. Bax's restrictions, the commission is satisfied that those efforts were not working and that the employer had reasonable cause to terminate the applicant's employment.

Accordingly, the application must be dismissed.

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

The findings and order of the administrative law judge are reversed. The application is dismissed.

Dated and mailed May 9, 2002
gigsten . wrr : 101 : 1    ND § 7.33

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

/s/ Laurie R. McCallum, Commissioner

The commission conferred with the presiding ALJ concerning witness credibility and demeanor. Transamerica Ins. Co. v. ILHR Department, 54 Wis. 2d 272, 283-84 (1972). He reiterated that he did not credit the employer's account that a November or December 1998 meeting occurred, as it was not mentioned in the subsequent termination letter. Given the ALJ's impression that the meeting did not occur, or at least did not occur as Mr. Lackie described it, the commission concluded that the employer terminated the applicant's employment without any instruction to reapply in the future.

The commission and the ALJ also discussed whether the lathe work in the end shield department was light duty work. The ALJ said this was not clear from the testimony of the parties one way or another. He pointed out that Mr. Lackie referred to a policy of returning injured workers in light duty, but acknowledged that the parties seemed to agree that the lathe work was repetitive.

Thus, the record does not permit the commission to find reasonable cause on the basis that lathe work was some kind of temporary assignment that the employer never intended to offer long term, and that it eventually discharged her when she could not return to regular work. Rather, the commission concludes that the lathe work was regular duty work; that the applicant tried to return to it for some time at least after recovering from the injury; but that the lathe work and all other available work was repetitive; that Dr. Bax permanently prohibited repetitive work; and that the applicant's attempt to nonetheless work in repetitive work was causing aggravations of her condition. On this record, the commission found the employer reasonably discharged the applicant.

cc: 
Attorney Gary R. Weidner
Attorney Randall J. Nesbitt

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(1)( Back ) Dielectric Corp. v. LIRC, 111 Wis. 2d 270, 278 (Ct. App., 1982).

(2)( Back ) Great Northern Corp. v. LIRC, 189 Wis. 2d 313, 317 (Ct. App. 1994), citing West Allis School Dist. v. DILHR, 116 Wis. 2d 410, 422 (1984).

(3)( Back ) This "very correct standard" set out by court in Dielectric was adopted by the supreme court in West Bend v. LIRC, 149 Wis. 2d 110, 121 (1989) which specifically stated that "after an employe shows that she has been injured in the course of employment and subsequently is denied rehire, it becomes the burden of the employer to show reasonable cause for not rehiring the employe." West Bend, at 149 Wis. 2d 123

(4)( Back ) West Bend, supra, at 149 Wis. 2d 126.

(5)( Back ) L&H Wrecking v. LIRC, 114 Wis. 2d 504, 510-11 (Ct. App. 1983.)

(6)( Back ) Hill v. LIRC, 184 Wis. 2d 101, 111-12 (Ct. App. 1994).

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