JOSHUA E RICHARDSON, Applicant

STAY LITE LIGHTING INC, Employer

TRANSPORTATION INSURANCE CO, 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 by the employer.

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 June 14, 2005
richajo . wsd : 175 : 4  ND § 7.25  § 7.34

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

The employer asserts, in its petition for commission review, the administrative law judge erred in determining the employer unreasonably refused to rehire the applicant following his work injury on September 6, 2002. The evidence indicates that following his work injury the applicant was released to return to work without restrictions on May 20, 2003, and the applicant attempted to return to work with the employer. However, the employer terminated the applicant's employment in May 2003.

The evidence further indicates that subsequent to terminating the applicant's employment the employer advertised for a lighting crew supervisor on June 15, 2003. The applicant credibly testified the advertised position involved the same duties he had performed while on light duty. The employer did not contact the applicant and offer him this work. Further, the evidence indicates the employer hired part-time summer workers who performed work that the applicant could have performed. The employer provided no reasonable explanation for failing to hire the applicant for the suitable work available for him. The fact that the applicant had not indicated an interest in lower paying work or part-time work in the past did not relieve the employer of the responsibility of offering the applicant suitable work available within his restrictions.

Further, once the applicant was terminated, he had no duty to contact the employer again. The employer points to the fact that a subsequent opening in September 2003 prompted the employer to contact the applicant on September 11, 2003, by mail and by telephone, inviting him to apply for the position. However, the employer did not offer the applicant the position to start at a certain date or at a certain rate of pay. The applicant established that he was injured on the job and, subsequent to reaching a healing plateau without restrictions, attempted to return to work with the employer, but the employer refused to rehire him. Rather, the employer terminated his employment. The evidence also indicates the employer had suitable work available for the applicant in June 2003, which the employer refused to rehire the applicant to perform without any reasonable justification. Once the applicant was terminated by the employer, he had no duty to contact the employer to see if work was available. L & H Wrecking Inc. v. LIRC, 114 WI 2d 504 (Court of Appeals, 1983).

The administrative law judge appropriately noted that under Wisconsin Worker's Compensation Act the employer was obligated to make a good faith effort to return the applicant to suitable work available within his restrictions. Given the fact that there was suitable work available for the applicant with the employer shortly after he could return to work without restrictions and the employer failed to rehire the applicant for this work without any reasonable explanation, the evidence was sufficient to establish that the employer unreasonably refused to rehire the applicant pursuant to Wis. Stat. § 102.35(3). The employer contends that the amount the applicant receives as a penalty under Wis. Stat. § 102.35(3) should be offset by the amount of unemployment compensation the applicant received subsequent to his termination. However, the commission has no authority to offset the amount of penalty for unemployment compensation received. The administrative law judge appropriately awarded the applicant $9,477.64 as a penalty in this case.

NOTE: The employer asserts in its brief that the applicant's receipt of unemployment insurance suggests that those payments be applied in offset of the applicant's award for unreasonable refusal to rehire. However, the commission and the department do not reduce worker's compensation liability by offsetting unemployment insurance payments. Instead, the process works the other way around; if an applicant gets payment of temporary disability under Wis. Stat. § 102, the Unemployment Insurance Division of the Department of Workforce Development may issue an overpayment determination. A copy of this decision is being sent to the Bureau of Legal Affairs in the Unemployment Insurance Division.

cc:
Attorney Dennis H. Wicht
Attorney Lawrence T. Lynch

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uploaded 2005/06/20