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

JOHN J HAUKE, Applicant

VULCAN MATERIALS COMPANY, Employer

WORKER'S COMPENSATION DECISION
Claim No. 1996027230

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 February 6, 2003
haukejo . wsd : 175 : 3  ND § 7.25  § 7.32 

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner


MEMORANDUM OPINION


The applicant asserts in his petition for commission review the administrative law judge erred in determining the employer did not unreasonably refuse to rehire the applicant pursuant to Wis. Stat. § 102.35(3). The applicant contends the employer had suitable work available for him and could have continued to accommodate him after his October 1996 injury. The evidence indicates the employer provided the applicant light duty work due to an earlier injury prior to the October 1996 injury. However, the evidence also indicates the applicant had difficulty staying within his restrictions for even the light duty work, and other employees had to help perform some of the duties. The employer is not required to make work for the applicant or to continue temporary accommodations.

The evidence indicates the applicant's restrictions were greater following the October 1996 injury. The applicant admitted his restrictions included no lifting of more than 25 pounds, no vertical ladder climbing, and he change positions every 20 to 30 minutes. The employer did not rehire the applicant with these restrictions.

The evidence indicates the applicant's union was not able to obtain suitable work through his union hiring hall because of these permanent restrictions. The administrative law judge appropriately noted the social security administration administrative law judge concluded the applicant's permanent restrictions precluded his past work which was at a medium exertional level. The applicant admitted his restrictions following the October 1996 injury prohibited him from climbing into machines like the excavator and the loader, which he had operated in the past. The testimony indicated the work of an operator included work running the crusher and involved activities beyond the applicant's restrictions. Mr. Mogden, the applicant's supervisor, testified when he became aware of the applicant's permanent restrictions, including no lifting more than 25 pounds, no overhead lifting, no vertical climbing, and the need to change position every 20 to 30 minutes, the applicant could not perform the duties of an operator given these restrictions. Mr. Mogden testified there were no jobs available with the employer which fit the applicant's permanent restrictions.

Mr. Mogden testified the applicant's job duties were modified to accommodate his temporary restrictions prior to October 1996 but given his permanent restrictions following October 1996 the employer had no suitable work available within his restrictions. The administrative law judge who could observe the demeanor of witness and therefore was in a good position to make a determination as to credibility credited Mr. Mogden's testimony. Based upon an independent review of all of the evidence in the record the commission has found nothing to warrant overturning the administrative law judge's credibility determination. The vocational experts, Ms. Roman and Mr. Iwinski, opined the applicant's permanent restrictions limited him to employment of a sedentary and light nature with the option for frequent position changes. The employer was not required to create a job for the applicant given his permanent restrictions. The evidence indicates the work available with the employer required lifting and activities outside of the applicant's permanent restrictions. Therefore, based on the evidence of the applicant's permanent restrictions, and given the nature of the work available with the employer, and given Mr. Mogden's testimony, as well as the evidence of the work of an operator with the employer, and the fact the applicant was not able to perform the work within his temporary medium duty restrictions prior to October 1996, and given the fact the applicant's union was unable to find work within his permanent restrictions subsequent to October 1996, the evidence was sufficient to raise a legitimate doubt the employer unreasonably refused to rehire the applicant pursuant to Wis. Stat. § 102.35(3).

cc: 
Attorney Michael J. Ganzer
Attorney Michael J. Fischer

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