DANIEL H BOONE, Applicant

WILD GOLF INC., Employer

The employer submitted a petition for commission review alleging error in the administrative law judge's Findings and Order dated July 29, 1997. The applicant submitted an answer to the petition. At issue was the amount of lost wages due the applicant for the employer's unreasonable refusal to rehire the applicant contrary to Wis. Stat. § 102.35 (3).

The commission has carefully reviewed the entire record in this matter, and hereby sets aside the Findings and Order of the administrative law judge and substitutes the following therefor:

The issue in this case is the amount of lost wages which the applicant is entitled to for the employer's unreasonable refusal to rehire which was adjudicated by the commission in a prior decision. Under Wis. Stat. § 102.35 (3), if an employer unreasonably refuses to rehire an applicant who has been injured on the job, the employer is liable to pay to the applicant the wages lost during the period of such refusal, not exceeding one year's wages. The issue in this case is whether one year's wage is equal to the wages that would have been earned in seasonal employment or the number of weeks is expanded to 52 weeks despite the fact that the employe only worked on a seasonal basis.

The commission noted in its initial order in this matter that the applicant was hired to perform part-time lawn mowing duties in May 1995 and on May 12, 1995 he injured his left shoulder while working on the job. The commission found that the applicant had been released to return to work on July 5, 1995 and attempted on numerous occasions to contact the employer, but that the employer deliberately avoided rehiring the applicant. The matter was remanded to the department with respect to the amount of lost wages due the applicant.

Upon remand, Mr. Kuzyk, the applicant's supervisor, testified that there was no expectation that the applicant would work a full year for the employer. Mr. Kuzyk testified that the applicant's position was from the spring until early fall and that the last seasonal employe stopped working for the employer as of October 7, 1995. Mr. Kuzyk testified that there was no expectation that the applicant would be rehired.

Under the commission's prior interpretation the penalty under Wis. Stat. § 102.35 (3) is a monetary one and not a temporal limit. The administrative law judge cited a circuit court case in Northland Equipment Co. v. LIRC, Case No. 93-CV-741 (Rock County, November 3, 1994) in which the circuit court stated that the commission can extend up to a year's lost wages even if the job the applicant was originally hired for was completed in less than a year.

However, the commission does not find that the circuit court holding in Northland Equipment Co. v. LIRC supports a finding in this case that the applicant should be awarded one year's lost wages even though he was employed on a seasonal basis. In the Northland Equipment Company case the applicant worked as a mechanic in a shop for the employer for approximately 30 days prior to his injury in September 1984. The applicant testified that he had been released to return to work in August 1985 but the employer had refused to rehire him. The employer contended that the applicant was hired expressly to work only for a few months until a specific project was concluded and that the project had ended by the time he reported ready to return to work. However, the commission noted that the employer's president admitted at the hearing that the applicant would have been rehired at the time that he was released to return to work in August 1985. The circuit court in the Northland case cited that portion of the language in the commission's decision which indicated that the applicant would have been rehired at the time he was released to return to work and determined that the commission's award can extend up to a year's lost wages even if the job was originally hired or was completed in less than a year. Although the employer in the Northland case contended that the applicant had only been hired for a specific project the evidence established the exact opposite; that the applicant was hired to work on a full-time basis although he may have been working on various projects for the employer since the employer's president testified that he would have been rehired. Since the applicant in the Northland case was a full-time year-round employe a penalty of 52 weeks lost wages was appropriate.

However, in the current case the applicant was hired to work on a seasonal basis and a reasonable interpretation of Wis. Stat. § 102.35 (3) is that the amount of lost wages to be awarded in the case of a seasonal employe is the amount of wages lost over the period of the year that he would have earned for that specific seasonal work. The commission has reached a similar conclusion in the case of Bachhuber v. City of Kaukauna (Commission Decision dated July 27, 1994). In the Bachhuber case the commission found an unreasonable refusal to rehire for a crossing guard employe who worked only during the school year. The commission noted in the Bachhuber case that as a crossing guard the applicant did not work year-round, and thus the wages lost depended on the number of weeks the applicant would have worked. The commission did not determine to expand the crossing guard's wages to 52 weeks in the Bachhuber case.

The commission finds that in this case there was no evidence that the applicant would have been rehired upon his release to return to work or for a following season as distinguished from the Northland Equipment Company case in which the employer testified that the applicant would have been rehired. In the current case the applicant as a seasonal employe is entitled to lost wages for the period of time that he would have worked as a seasonal employe. The commission remands the matter to the department to determine the specific number of weeks of seasonal employment that the applicant would have worked in 1995 in order to determine the amount of lost wages that the applicant is entitled to. The applicant's claim to have the amount of lost wages expanded to one year's wages even though he worked on a seasonal basis is denied.

NOW, THEREFORE, this

The findings and order of the administrative law judge is set aside and the commission's findings and order substituted therefor. The matter is remanded to the department to determine the number of weeks that the applicant would have worked on a seasonal basis for the employer in 1995.

Dated and mailed February 27, 1998
booneda . wrr : 175 : 2  ND § 7.34

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

NOTE: The commission did not confer with the administrative law judge concerning the credibility and demeanor of witnesses. The credibility of the witnesses was not an issue in the commission's decision. Rather, the commission disagreed with the administrative law judge's interpretation of the Northland Equipment Company case that required expanding the applicant's lost wages to one year's wages in this case.

cc:
Attorney Patrick S Sweeney
Sweeney & Sweeney SC

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