WILLIAM J HOGAN, Applicant

BOLLIG LATHING INC, Employer

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 November 4, 2005
hoganwi . wsd : 101 : 2  ND § 7.32

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

This is an unreasonable refusal to rehire case. The applicant seeks compensation under Wis. Stat. § 102.35(3) for her discharge after returning to work following a work-related injury. The ALJ concluded the employer thus showed reasonable cause for the refusal to rehire, and dismissed the application.

Wisconsin Stat. § 102.35(3), provides as follows:

"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...."

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 that the worker was discharged with good cause. Dielectric Corp. v. LIRC, 111 Wis. 2d 270, 278 (Ct. App. 1983). This "very correct standard" set out by the court in Dielectric was adopted by the supreme court in West Bend v. LIRC, 149 Wis. 2d 110, 121 (1989). In that case, the supreme court stated that "after an employee 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 employee." West Bend, at 149 Wis. 2d 123. Further, as stated in Dielectric Corp. v. LIRC, 111 Wis. 2d 270, 278, 330 N.W.2d 606 (1983):

"Under [Wis. Stat. § 102.35(3)], once the employee has suffered a worker's compensation injury, the question initially becomes: does the employer have good cause not to rehire. If the employee is rehired, the rehiring cannot be a pro forma rehiring. Therefore, if there is an eventual discharge, the employer must show that there is no bad faith on its part to evade this statute and that the rehired employee was discharged with good cause."

Layoffs to achieve efficiency are a valid defense to an unreasonable refusal to rehire claim. Ray Hutson Chevrolet v. LIRC, 186 Wis. 2d 118 (Ct. App. 1994). An employer need not "perpetuate an unnecessary expense by rehiring an injured employee to fill a position that the employer has eliminated to save costs." Id., at 186 Wis. 2d 123. On the other hand, the supreme court and court of appeals have held that 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." 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).

The ALJ found for the employer. He held the applicant could not return to his old job as a working supervisor, that the employer was not required to make work for the applicant, and that he should have known the employer's dissatisfaction with his attitude would harm his chances at promotion to a field inspector job. The applicant appeals, arguing that the employer refused to even consider him for a return to work allegedly due to his attitude, but that the employer's evidence did not show an attitude problem especially as it allowed him to work to the point of his layoff despite the attitude concerns.

The applicant clearly has made his prima facie case: he is an employee who was injured and denied rehire. The burden shifts to the employer to show reasonable cause.

There is no dispute the applicant was laid off in the first instance on November 4, 2002, due to lack of work. The commission also credits that the evidence presented by the employer that the work restrictions set following the applicant's eventual surgery -- including a ten-pound overhead lifting limit, limited reaching out from his body, and no work above 10 or 12 feet on a ladder -- precluded a return to his former job, the applicant's testimony to the contrary notwithstanding. The employer also demonstrated it had concerns with his attitude well prior to the injury, and presented testimony suggesting that his attitude played a role in a pre-injury decision not to hire the applicant for an earlier field inspector vacancy. Finally, the presiding ALJ, who saw all the witnesses testify, credited the employer's rationale for not returning the applicant to work.

cc:
Attorney Charles M. Soule
Attorney Douglas E. Witte

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