DENNIS F RACE, Applicant

EMMPAK FOODS INC, Employer

NATIONAL UNION FIRE INS CO OF PITTSB, Insurer

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 January 14, 2005
raceden . wsd : 175 : 4 ND § 5.9

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

The employer contends, in his petition for commission review, the administrative law judge erred in determining the applicant was entitled to temporary total disability benefits from July 22, 2002 to January 16, 2003 due to his work-related injury on June 10, 2002. The evidence indicates the employer discharged the applicant on July 21, 2002 for a safety rule violation, second offense, for violation of the employer's lockout/tagout policy. The employer contends that the applicant violated a reasonable rule, which was reasonably enforced by the employer, and it is evident that the rule violation caused the applicant's wage loss and not the injury. The employer states that to hold it liable to the applicant for temporary disability benefits following his discharge is unjust, as well, because the applicant was fully aware of the safety rules when he chose to violate them on two separate occasions. The administrative law judge appropriately noted that the applicant was disciplined pursuant to a longstanding, published policy that the applicant acknowledged notice of on September 12, 2001.

However, in Brakebush Brothers, Inc v. LIRC, 210 Wis. 2d 623 (1997), the Wisconsin Supreme Court held that an employee who was terminated for making misrepresentations related to physical activity was eligible for temporary disability benefits on the basis that the work injury, and not the termination, was the cause of the continuing wage loss. In Wellsandt v. Chippewa County, (LIRC Nov. 28, 1997) the commission found that an employee who had returned to restrictive work following his injury, and subsequently discharged for failing to replace the oil in the sheriff's deputy's car while working under a last chance agreement, was eligible for continuing temporary disability. 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 work for reasons unrelated to the work injury during the healing period. Such an exception to the Brakebush holding must rely on the conclusion that the applicant's conduct, with respect to the oil change was the analytic equivalent of refusing an offer of work. The commission reached a similar decision in Banach v. Bucyrus Int'l Inc. (commission decision dated March 23, 2001), in which the employer contended that once the employee 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, the employee is not entitled to temporary total disability benefits and under these facts, this would be an exception to the general rule enunciated in the Brakebush decision. The commission determined that the applicant's absence in the Banach case was not the analytic equivalent of quitting or a refusal of work.

The employer contends that the commission has misinterpreted the Brakebush decision in the Wellsandt and Banach cases. However, a review of the Brakebush decision does not indicate that the commission has misinterpreted the holding in that case. Under Wisconsin Administrative Code § DWD 80.47, even though an employee could return to a restricted type of work during the healing period, unless suitable employment within the physical and mental limitations of the employee is furnished by the employer or some other employer, compensation for temporary disability shall continue during the healing period.

In the current case, under the holding in the Brakebush decision, the applicant's actions were not the analytic equivalent of a refusal of work. The administrative law judge appropriately noted that the law in Wisconsin is that when an employee has lost the ability to work, temporarily or permanently, due to a work-related injury, the employee is entitled to disability benefits irrespective of whether they are a good or bad employee. Although the employer may have had a valid reason for discharging the applicant, under the holding in the Brakebush case, as well as the commissions decisions in Wellsandt and Banach, the evidence established that the applicant was in a healing period between July 22, 2002 to January 16, 2003 and released to return to restricted work, but there was no suitable employment within the physical limitations of the employee furnished by the employer. The applicant's continuing wage loss was due to his work injury and not some other nonwork-related reason. Therefore the applicant is entitled to temporary disability benefits for the period specified in the ALJ's order.

cc:
Attorney Daniel R Schoshinski
Attorney Joseph Danas

Appealed to Circuit Court. Affirmed September 6, 2005.  Appealed to the Court of Appeals.  Affirmed June 6, 2006, Emmpak Foods & Nat. Union Fire Ins. Co. v. LIRC and Dennis Race,  2007 WI App 164, 303 Wis. 2d, 771, 737 N.W.2d 60

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