JAMES D COUILLARD, Applicant

J B HUNT TRANSPORT INC, Employer

NATIONAL UNION FIRE INSURANCE CO OF PITTSBURGH
c/o AIG DOMESTIC CLAIMS INC

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 February 28, 2006
couilja . wsd : 101 : 8  ND § 7.28

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

The applicant is a truck driver who was born in 1954. The parties agree the applicant was hurt at work on November 27, 2002; that he notified the employer of the injury causing the employer to arrange for medical treatment for him that day; that he was given work restrictions on the day of injury; that he nonetheless drove the truck back to Green Bay; and that he then cleared his personal possessions out of the truck.

The parties also agree that the applicant did not return to work with the employer following a full release by his doctors. The applicant testified -- and the ALJ found -- that the employer discharged him shortly after the work incident.

According to the applicant, he called the employer on Friday, November 29, 2002, which would be two days after the injury, just to keep in touch. He spoke with the employer's fleet manager, James Newhouse, who told him he had been fired, and needed to talk with the account manager, Dean Hueck. The applicant testified he tried calling Hueck repeatedly thereafter, and was not successful. Transcript, page 36.

The employer's position is that the applicant abandoned his job. According to Mr. Newhouse, however, the employer tried several times to contact the applicant without result, leaving him messages on his telephone answering machine. Eventually, the employer sent out a termination letter on December 9, 2002. Exhibit 3. The termination letter states that the applicant's employment was terminated as of December 5, 2002, for job abandonment, stating further that the applicant had been absent for a week.

Mr. Newhouse acknowledged that the applicant called him shortly after the termination letter was sent. In that conversation, Mr. Newhouse testified, the applicant "was questioning the letter" of termination, and Mr. Newhouse merely reiterated its contents. He advised the applicant to talk to Mr. Hueck if he had further questions. Mr. Newhouse did not recall that the applicant asked to talk to Mr. Hueck or to have Mr. Hueck call him. Transcript, page 129.

Mr. Hueck, for his part, testified he did not speak to the applicant and was not aware the applicant was trying to call him after the termination letter was sent. He added that if he had he would have hired the applicant, even after the termination for job abandonment, had he re-applied. Transcript, page 96.

The ALJ credited the applicant's testimony that the applicant did not quit. The ALJ also credited the applicant's testimony he tried to call Mr. Hueck after talking with Mr. Newhouse, but that Mr. Hueck never returned his calls. The ALJ pointed out the employer had access to the applicant's medical records, that the employer's own policy would not allow him to work without a full release, and that that did not happen until March 2003 -- well after the discharge.

The employer appeals, raising its argument that the applicant was not discharged by the employer, but quit by abandoning his job. The employer argues, too, that the applicant failed to "apply for employment" thereafter, a requirement which the employer says is part of the applicant's prima facie case for compensation for an unreasonable refusal to rehire under Wis. Stat. § 102.35(3).

The ALJ, who observed the parties as they testified, found as a fact that the applicant contacted the employer as early as November 29, 2002, when he spoke to Newhouse and was told he had been fired. Further, the ALJ believed the applicant tried unsuccessfully to contact Mr. Hueck about his job thereafter. The commission adopts these findings as credible.

The applicant informed the employer about his injury. The injury resulted in a temporary restriction that disabled him from working, leading to the conclusion that he did not intend to abandon his job regardless of precisely when he first contacted the employer after the date of injury. Further, even the employer admits the applicant still called about the termination letter and his job after receiving the letter. On this record, the commission concludes that the applicant's separation from employment occurred because the employer discharged him, not because he abandoned his job.

Regarding the employer's argument concerning the applicant's "failure to apply for reemployment' argument, the commission notes two court of appeals holdings on point. In L&H Wrecking Co. Inc., v. LIRC, 114 Wis. 2d 504 (Ct. App. 1983), the injured worker was fired during his healing period because the employer -- without any medical expert evidence to support it -- believed the worker's injury would prevent him from returning to work. While the commission found the employer unreasonably refused to rehire the applicant, the circuit court disagreed, holding that the applicant was required to report to the employer for work after obtaining a medical release in order to make a claim under the statute.

The court of appeals disagreed, holding that:

We conclude that to require a terminated employee to report to work in order to recover under sec. 102.35(3), Stats., is an unreasonable construction of the statute. In this case, L & H terminated the employment before Brownfield received medical permission to return to work. For Brownfield to have reported for work, after termination, would have been an exercise in futility. To require such behavior as a prerequisite to recovery under sec. 102.35(3) would impose an unreasonable burden on any employee. [Italics in the original.]

L&H Wrecking Co. Inc., 114 Wis. 2d at 510.

On the other hand, there is Hill v. LIRC, 184 Wis. 2d 101 (Ct. App. 1994) where a worker's injury prevented him from returning to truck driving, but he never expressed an interest in returning to work with the employer in another capacity. The commission found against the employee noting:

Where an employe is released by his physician after an extended period of total disability with significant permanent restrictions that all parties agree will preclude the employe from returning to the type of work he always did for the employer, it is appropriate to impose on the employe some type of obligation of communicating to the employer the extent of his interests, if any, in returning to employment with that employer in a different capacity.

Hill, 184 Wis. 2d at 108. The court of appeals affirmed the commission's requirement that the worker express an interest in returning, stating:

The communication requirement must be placed in context. In the paragraph in which it imposes the requirement, LIRC first lists the four elements essential to the employee's prima facie case [including the requirement that an employee apply for rehire.]... LIRC then states that no affirmative reapplication would be necessary when the employee is released by a physician to return to the same position without restrictions; informing the employer of the physician's release would be sufficient. LIRC also notes that no formal application is required where the employee has been terminated while on leave. See L & H Wrecking Co. v. LIRC, 114 Wis.2d 504, 509-10, 339 N.W.2d 344, 347 (Ct. App. 1983). Finally, LIRC states that expressing to the employer the extent to which an employee is interested in working in a different capacity is necessary when the employee is precluded from returning to his or her previous job.

From the context, we conclude that instead of adding to the employee's burden, LIRC was clarifying what "applying for rehire" entails in the case where an employee cannot resume his or her previous work. This clarification ... need not take the form of a written application, but may be accomplished through informal means, e.g., a telephone conversation. Furthermore, as a matter of common sense and logic, when an employee who cannot resume his previous position applies for rehire, he at the very least implies a willingness to accept work of a different nature. Therefore, we conclude that LIRC's application of the statute and corresponding case law is reasonable and must be affirmed.

Hill, 184 Wis. 2d at 111-12.

In this case, the applicant was discharged by the employer. When he was later released to work, he could have performed that job without accommodation or restriction. L & H Wrecking indicates that any burden on the worker to re-apply is minimal in such a situation. Hill involves a worker who could not return to his old job, not -- as here and in L&H Wrecking -- an employee who was fired from a job he could return to.

Further, the applicant did contact the employer about his discharge even under the employer's version of events. In light of L&H Wrecking, the commission concludes the applicant did not have to protest formally or grieve his discharge, or make a formal reapplication for work. Even Hill does not contemplate or require such formal action.

Finally, as the ALJ found, the applicant made an effort to keep the employer adequately apprised of his situation. He reported his injury when it happened, and he credibly testified he told the employer his restrictions would keep him off work. He contacted the employer after his discharge, and testified credibly that he tried, but was unable, to talk to Mr. Hueck about the discharge. Under the facts, the ALJ appropriately held the employer liable under Wis. Stat. § 102.35(3).

cc:
Attorney Thomas M. Domer
Attorney Jeffrey J. Strande

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