STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

TODD JAMES CLARK, Applicant

QUALITY HEATING & SHEET METAL, Employer

WORKER'S COMPENSATION DECISION
Claim No. 91055201

The applicant submitted a petition for commission review alleging error in the administrative law judge's Findings and Order issued in this matter on March 1, 1996. Briefs were submitted by the parties. At issue is whether the employer unreasonably refused to rehire the applicant, within the meaning of section 102.35 (3), Stats.

The commission has carefully reviewed the entire record in this matter, and after consultation with the administrative law judge regarding the credibility and demeanor of the witnesses, hereby reverses his Findings and Order. The commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The applicant was employed as a warehouse manager for the employer, a heating, air conditioning, and sheet metal business. He had twice injured his back with a previous employer, Pepsi Cola Co., both times in 1986. Dr. William McDevitt released the applicant to unrestricted work in September 1988, and he obtained his employment with the employer in March 1990. The employer's former president, Robert Smith, hired the applicant with knowledge of the prior back injuries, but after having seen Dr. McDevitt's unrestricted release. The applicant performed lifting up to 70 pounds, with most items being much lighter. He was allowed to use other employes for assistance in lifting when needed.

The applicant reinjured his back while working for the employer on August 26, 1991. He was treated by Dr. Austin Boyle, who completed medical progress reports on September 25, 1991, October 8, 1991, and October 25, 1991. Each of these reports indicated the applicant could return to work with a 10-pound lifting restriction, but was not yet released from medical care. Smith acknowledged that he saw these releases but indicated that he had no work available within the 10-pound restriction. On November 14, 1991, Smith sent a letter to the applicant which stated:

"Because of your back injury and the 10-pound lifting limits your doctor has imposed, we can no longer carry you as an employe. Your duties as a warehouse man calls (sic) for much heavier lifting than your 10-pound limitation. We hereby terminate your employment as of Thursday, November 14, 1991."

The applicant returned to the employer in January 1992, after Dr. Boyle released him without permanent restriction. He asked Smith for work, but Smith told him there was no work available. Smith testified that he did not recall the applicant coming in to ask for work in January 1992; that he "thought" Dr. Boyle's progress reports in September and October 1991, indicated the applicant would be on a 10-pound restriction "from then on;" and that he saw the 10-pound restriction and decided the applicant would not be able to run the warehouse. He did not know how long the applicant would be off, and he hired a new warehouse man "sometime" after he fired the applicant.

The applicant received temporary total disability up to January 13, 1992. He collected unemployment compensation before finding work as a dump truck driver in November 1992.

The applicant saw Dr. Jerome Lerner on February 11, 1993, for a medical evaluation. Dr. Lerner recorded complaints of constant left low back pain and constant discomfort into the left leg. He diagnosed a left lumbosacral sprain with L5-S1 disc herniation and L5 radiculopathy as a result of the two 1986 injuries. He further opined that the 1991 work injury had aggravated the applicant's condition but not permanently. He assessed 5 percent permanent partial disability and restricted the applicant to lifting up to 50 pounds, with no repetitive bending, pushing, pulling, twisting, crawling, or squatting. He also indicated the applicant's walking should be limited to a maximum of 15 minutes per hour, and standing should be limited to a maximum of 6 hours per day with a 15-minute break per hour.

At the time Robert Smith decided to terminate him, the applicant was still in his healing period from the injury on August 26, 1991. He continued to receive temporary total disability up to January 13, 1992, a fact which Smith must be held to have known. The three medical progress reports from Dr. Boyle plainly indicated that the applicant was not discharged from medical care. Accordingly, any assumption Smith may have had concerning a permanent lifting restriction was based on intuition or pure speculation rather than any medical evidence. In fact, Smith acknowledged in testimony that he did not know how long the applicant would be off work, but he decided on his own that the applicant would not be able to run the warehouse. As the court stated in West Bend Company v. LIRC, 149 Wis. 2d 110, 125, 438 N.W.2d 823 (1989):

"We conclude that where the assertion is that the claimant is physically unfit to return to work, medical proof to a reasonable probability is required to support that assertion."

At the time Smith terminated the applicant, he had no medical indication of whether the applicant would have any permanent restriction as a result of his work injury. At best, Smith's actions were based on his own intuition and not supported by the facts before him. Leist v. LIRC, 183 Wis. 2d 450, 459, 515 N.W.2d 268 (1994). If the employer had been in immediate need of someone to perform the applicant's work duties, it would have had every right to have hired someone to take his place. (1) However, such circumstance would not have justified a termination of the applicant during his healing period. In most cases, the termination of an injured employe during his healing period sends the unambiguous message that the employer does not want the applicant to return to it for any reason. (2) Arbitrary termination is completely contrary to the employer's duty under section 102.35 (3), Stats., to either rehire the injured employe, or to demonstrate that the employe could not return to his previous position and that the employer will have no other suitable work available for him. West Bend Company v. LIRC, 149 Wis. 2d at 126. When the employer discharged the applicant, it could not demonstrate that he would be unable to return to his former position, or that suitable work would not become available to him. The employer had no medical indication of the applicant's ultimate medical status. The inference drawn from Smith's actions is that the employer was unwilling to risk any continuing employment relationship with an individual who had injured his back.

Despite his termination, the applicant returned to the employer in January, 1992, and sought reemployment. He showed Smith Dr. McDevitt's release without physical restriction, but Smith told him no work was available. Rather than presenting any evidence to support the assertion that no work was available, Smith simply testified that he could not recall the applicant coming in to ask for work in January 1992. The applicant's specific recollection of this event is credible, and the event further illustrates the employer's failure to demonstrate that it acted reasonably in this matter.

Finally, the fact that Dr. Lerner assigned physical restrictions to the applicant after examining him in February 1993, is not controlling. The circumstances in existence at the time the refusal to rehire occurred are the relevant circumstances under section 102.35 (3), Stats. West Bend Company v. LIRC, 149 Wis. 2d at 129. Dr. Lerner's opinion contradicts Dr. McDevitt's opinion, but neither opinion had been rendered when the employer chose to terminate the applicant in November 1991. It must also be recognized that despite Dr. Lerner's opinion that the applicant sustained a temporary aggravation of his preexisting back condition on August 26, 1991, the applicant was able to work for the employer for 17 months prior to that date, despite the preexisting back condition. It remains speculative as to whether the applicant would have been physically able to return to work for the employer when he reached his healing plateau on January 13, 1992.

Accordingly, it is found that the employer unreasonably refused to rehire the applicant, effective with the date of his termination on November 14, 1991. The period of lost wages began with the end of the applicant's healing period on January 13, 1992. The record does not disclose the exact date the applicant obtained employment in November 1992, or the amount of wages he received at this new employment. The potential liability under section 102.35 (3), Stats., is up to one year's wages, which in this case amounts to $22,928.88. Liability accrued at the rate of $440.94 per week for each week subsequent to January 13, 1992, in which the applicant was totally unemployed. If his new employment paid wages lower than $440.94 per week, then pro rata liability continued to occur up to the maximum of $22,928.88. Payments under section 102.35 (3), Stats., are in addition to other benefits, and the unemployment compensation which the applicant received does not offset the statutory liability. The matter will be remanded to the department for determination of the exact amount due the applicant. A 20 percent attorney's fee is chargeable against all payments due under this order.

NOW, THEREFORE, this

INTERLOCUTORY ORDER

The Findings and Order of the administrative law judge are reversed. The employer is liable for up to one year's wages for unreasonably refusing to rehire the applicant, within the meaning of section 102.35 (3), Stats. His attorney is entitled to a 20 percent fee against amounts due. The matter is remanded to the department for determination of the exact amounts due. The applicant should initiate this determination by submitting to the department and the employer a breakdown of his employment and wages subsequent to January 13, 1992. Jurisdiction is reserved with respect to the amounts due.

Dated and mailed December 30, 1996
ND § 7.32 § 7.37

Pamela I. Anderson, Chairman

Richard T. Kreul, Commissioner

David B. Falstad, Commissioner

MEMORANDUM OPINION

The commission consulted with the administrative law judge, who indicated that he found the applicant not to have been credible. However, the administrative law judge did not relate any credibility or demeanor impressions to support this conclusion, other than the fact that he believed the applicant was taking advantage of the law by filing this unreasonable-refusal-to-rehire claim, after having previously filed the same type of claim against Pepsi Cola Company in 1989. The prior claim has nothing to do with the claim against Quality Heating & Sheet Metal, and the fact that the applicant was successful in his prior claim has no bearing on the merits of his present claim. The commission cannot agree that the applicant is taking advantage of the law by exercising his right to have it enforced.

The administrative law judge was also disposed to dismiss the applicant's claim based on Dr. Lerner's opinion that the applicant should be subject to physical restrictions which would preclude him from performing the type of work he performed for the employer. As noted in the above decision, this is a determination based on hindsight, and is irrelevant to the question of whether at the time of the termination, the employer acted with reasonable cause. In addition, the validity of Dr. Lerner's opinion is called into question by the undisputed fact that the applicant was able to perform the work in question between March 1990 and August 1991. According to Dr. Lerner, the applicant had a preexisting back condition during this period and should not have been lifting over 50 pounds. Whether the applicant should have been lifting over 50 pounds may be disputed, but the fact is that he did on occasion lift up to 70 pounds for the employer over a period of 17 months. In addition, Dr. Boyle never gave him permanent restrictions and Dr. McDevitt released him to return to unrestricted work in January 1992. Dr. Lerner's opinion cannot retroactively change the circumstances of the unreasonable refusal to rehire.

cc: ATTORNEY DEAN M HORWITZ
PREVIANT GOLDBERG UELMEN GRATZ MILLER & BRUEGGEMAN SC

ATTORNEY JOSEPH BERGER
OTJEN VAN ERT STANGLE LIEB & WEIR SC

Appealed to Circuit Court. Affirmed September 29, 1997.

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Footnotes:

(1)( Back ) As previously noted, Smith testified that he hired a replacement for the applicant "sometime after we let [the applicant] go." While not determinative of the case, it should be noted that the employer also failed to establish that it was necessary to obtain a replacement for the applicant for the period between his termination and his release without medical restriction on January 13, 1992.

(2)( Back ) A terminated employe is not required to report to work in order to recover under section 102.35 (3), Stats., L & H Wrecking Company, Inc. v. LIRC, 114 Wis. 2d 504, 510, 339 N.W.2d 344 (Court of Appeal 1983).