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

DENISE METZ, Applicant

REXNORD CORP PLASTICS, Employer

WORKER'S COMPENSATION DECISION
Claim No. 94050950

The administrative law judge issued his findings of fact and interlocutory order in this case on October 30, 1996, following a hearing on October 8, 1996. The employer and the insurer (collectively, the respondent) have submitted a petition for commission review of the administrative law judge's findings and order. Thereafter, both the respondent and the applicant submitted briefs.

The respondent conceded jurisdictional facts, an average weekly wage of $316.80, and a compensable injury. The issue at the hearing, and now before the commission, is the employer's liability under Wis. Stat. § 102.35 (3).

The commission has carefully reviewed the entire record in this case, including the briefs submitted by the parties. After consulting the administrative law judge concerning the credibility and demeanor of the witnesses, the commission hereby sets aside his findings of fact and order, and substitutes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The applicant was born on September 28, 1965. She began working for the employer in February 1993. She was a machine operator; the employer is a plastics fabricator. On August 19, 1994, the applicant was injured while taking apart a conveyor chain. The chain fell, and she caught it with her elbow, striking her shoulder into a table. She saw a doctor as soon as her shift ended.

The applicant was off work until September 27, 1994, and was initially released to return with no restrictions. She worked a little more than one day, and evidently reinjured herself. At this point, her family doctor referred her to an orthopedic specialist, Dr. Hoover.

Dr. Hoover allowed the applicant to return to work in October 1994. However, Dr. Hoover temporarily restricted the applicant to sedentary work. He also issued temporary restrictions regarding lifting over ten pounds, reaching, pushing and pulling. On December 5, 1994, the employer's independent medical examiner, Donna Davidoff M.D., substantially concurred in these temporary restrictions stating the applicant should do sedentary work, and could not lift more than ten pounds or do repetitive right arm and right shoulder work.

The applicant worked in the "secondary department" with these restrictions, trimming parts and putting in set screws. She worked at her own pace, evidently filling in here and there. In January 1995, still subject to the temporary restrictions, the applicant again began running machines on the shop floor, and helping other operators. She was able to do this work without problem, evidently because she could self select the tasks she would do.

In June 1995, IME Davidoff re-examined the applicant, and set permanent restrictions against lifting more than ten pounds over shoulder level, and against prolonged or frequent overhead activity. On July 6, 1995, Dr. Hoover issued his permanent restrictions, which were identical to his temporary restrictions: no lifting over ten pounds, and no repetitive reaching, pushing and pulling.

The employer's human resource manager, Lynne Sullivan, first testified the restrictions of Drs. Davidoff and Hoover were identical. She later admitted the restrictions were not identical in that Dr. Davidoff did not restrict the applicant from repetitive pushing and pulling. She also testified that the employer concluded the applicant could return to work based on Dr. Davidoff's permanent restrictions, not Dr. Hoover's.

When the employer got Dr. Davidoff's restrictions on or about July 6, it returned the applicant to the job she had before her injury. The applicant attempted to do the work but could not. Specifically, the applicant had problems operating machines equipped with a "degater." The degater trims rough spots of plastic fabricated parts, thus eliminating the repetitive task of trimming by knife and reducing the risk of repetitive motion-type injuries. At the time the applicant returned to work, about fifty percent of the employer's machines had degaters. At the time of the hearing, about seventy percent of the employer's machines had degaters.

The applicant describes operating the "degater" as follows:

"The lids are up here, and its continual up and down motion which would put pressure and pain. It would put pressure on my shoulder, the continual motions.... You have to push the lid down two and a half times a minute. So you're constantly like up and down with your arm through the four hours that you are on."

Transcript, page 21.

The applicant had to reach above shoulder level to operate the degater. See Respondent's exhibit 3, note of July 17. The applicant testified later that operating the degater required pushing down on the lid and that what bothered her was the constant up and down motion. Transcript, page 35-36.

The employer attempted to compensate by having the applicant stand on a platform, but the applicant's pain continued. Transcript pages 21-22. Frequent or prolonged overhead activity, of course, was prohibited under Dr. Davidoff's restrictions, and Dr. Hoover restricted repetitive pushing and pulling. Under these circumstances, the commission does not doubt the applicant's testimony that she found the work painful.

The applicant testified that she had been told prior to returning to full duty that she could not work unless she could run all the machines. The employer had about 20 machines; ten of them required using the degater. Nonetheless, the applicant told her supervisor that running the degater caused her pain, and asked to be taken off that work. He set up a meeting with some members of the employer's management on July 18, 1995.

One of the higher ups who attended the meeting was human resources manager Lynne Sullivan. According to Ms. Sullivan, degater work was an essential job function. The response of management at the July 18 meeting was that the applicant was asking them to create a special job, and one the employer did not need. The employer's management then told the applicant they thought her assigned job was within Dr. Davidoff's restrictions, but that they would give the matter more thought.

The next day, July 19, 1995, the applicant was fired at a pre-shift meeting with the management. At this point, one of the employer's managers told the applicant that she was essentially requesting the employer create a special job for her. The applicant expressed her desire to remain employed, but the management stressed that if she could not do the degater work, the employer had no job for her.

The applicant testified that the employer allowed another worker, Kristin Olson who had carpal tunnel syndrome, to work at one press for her whole shift. She did not know if Ms. Olson was on temporary or permanent restrictions, however. Human resource manager Sullivan testified that the only thing she recalled about Ms. Olson was that she was recovering from a carpal tunnel condition and that she did have restrictions.

Human resource manager Sullivan also testified that when a worker is released with permanent restrictions, the employer's policy is that he or she must be able to do a job that fits the employer's normal classifications. She explained that the employer would not create positions because it had certain classifications of work it needed performed. She also testified that it was necessary that employes rotate between machines.

Ms. Sullivan also testified that in some cases the work the applicant did while on light duty was "make work" that merely added expense to the production process. However, Ms. Sullivan admitted that in other cases the applicant was doing work that someone else would have had to do anyway, and that on some days she was possibly as productive in light duty as she had been on full duty before her injury. Ms. Sullivan testified that the work the applicant did on light duty was all meaningful work that had to be done, at least for some time in the future, that it was not as if the employer paid her to read magazines.

Wisconsin Statutes § 102.35 (3), provides as follows:

102.35 (3) Any employer who without reasonable cause refuses to rehire an employe who is injured in the course of employment, where suitable employment is available within the employe's physical and mental limitations, upon order of the department and in addition to other benefits, has exclusive liability to pay to the employe the wages lost during the period of such refusal, not exceeding one year's wages....

The "unreasonable refusal to rehire" statute applies to unreasonable discharges following a work injury, as well as simple failures to rehire. (1)

In an unreasonable refusal to rehire case, a worker has the burden of proving he or she was an employe with a compensable injury who was denied rehire or discharged. The burden then is on the employer to show reasonable cause for the failure to rehire or for the discharge. (2)

An employer must provide evidence showing to a reasonable degree of medical certainty that the worker cannot perform his or her old job or other available work, if it refuses to rehire a worker for that reason. (3) On the other hand, if an employer asserts it fired the worker because she refused work that was within her restrictions, the employer may not rely solely on the restrictions set by an independent medical examiner if they conflict with those set by the injured worker's doctor. (4) The supreme court and court of appeals have held that sec. 102.35 (3), Stats., "must be liberally construed to effectuate its beneficent purpose of preventing discrimination against employes 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).

In this case, the applicant has established that she was an injured employe who was discharged. Thus, she has made a prima facie case, and the burden shifts to the employer to show reasonable cause for her discharge. In determining whether reasonable cause has been shown, the commission must address three related issues: (1) was the degater work which the applicant refused to do within her physical and mental restrictions, (2) if not, was other suitable work available, and (3) if other suitable work was available, did the employer reasonably refuse to provide it to the applicant?

Turning to the first issue, the commission notes the applicant's testimony that working with machines with degaters hurt her injured shoulder. The degater work was repetitive, above-the-shoulder work, raising a legitimate question about whether it was within even IME Davidoff's restriction against prolonged overhead work. The work also seems to involve pulling or pushing with the right arm in violation of Dr. Hoover's restrictions.

The employer points to a letter from Dr. Hoover in February 1996, several months after the applicant's discharge. Exhibit 2. The letter indicates that the applicant should be able to do the tasks shown in a videotape he reviewed, notwithstanding his restriction against repetitive pushing and pulling with the right arm. Respondent's exhibit 2. Dr. Hoover also explained that his restriction should have been against repetitive right arm pulling and pushing exceeding a force of 10 pounds. However, Dr. Hoover could not specifically identify the degating (he called it degapping) work. And the commission is by no means certain exactly what the videotape reviewed by Dr. Hoover showed.

In light of this medical evidence and the applicant's very credible testimony that the degating work caused pain in the shoulder she injured at work, the commission must conclude that the applicant's pre-injury job to which she returned upon reaching an end of healing was not within her post-injury physical limitations.

The next issue is whether the employer had other work available within the applicant's permanent physical limitations. The applicant asserts the employer had meaningful and suitable work available within her restrictions, pointing to the light duty work she did while in the later part of her healing period. This work, basically, was assisting other operators and operating machines that did not have a degater.

The fact that the employer had provided such work to the applicant during her healing period cannot be denied. Further, the work was productive and meaningful by the employer's own admission. Indeed, employers often provide light duty work to injured workers during their healing period to get them back to work for a variety of reasons. Light duty work has a productive value, it may have a therapeutic value, and it decreases an employer's liability for temporary disability compensation. The commission declines to construe Wis. Stat. § 102.35 (3) to penalize automatically an employer who offers this kind of program during a healing period, but then refuses to provide light duty permanently. Rather, the commission must consider whether the refusal was for reasonable cause.

On this point, the employer contends that it requires all of its workers to rotate among all the presses, unless they are still healing. It offered evidence to the effect that it has no employes who cannot rotate, except for employes in a healing period. The employer explained it required rotation to machines with degaters to prevent repetitive motion-type injuries, and because its production process would be hampered if it had its workers deciding themselves what work they would do and not do on a permanent basis. The employer asserts that it therefore had reasonable cause to refuse to allow the applicant to work if she could not rotate among all of the machines.

The commission begins by rejecting the assertion that the employer could refuse to provide the non-degater work to the applicant simply because it could not have its workers deciding what jobs they would and would not do. The commission appreciates the employer's need to control its productive process. On the other hand, Wis. Stat. § 102.35 imposes a duty upon it to provide suitable and available work to employes injured in its service. The commission declines to find reasonable cause based solely on an assertion of an absolute right to control job assignments.

The employer's stronger argument is its assertion that it has valid reasons for requiring its workers to rotate among all the machines. The court of appeals approved some guidelines in analyzing this type of case in a recent case affirming the commission's decision to award the penalty under Wis. Stat. § 102.35, Moores Food Products v. LIRC and Andrea Roberts, No. 94-1815, (Wis. Ct. App., December 20, 1994). In that case, injured worker Roberts was a line worker who developed upper arm symptoms from repetitive work. During her healing period, Roberts was given lighter "online" tasks and lighter "offline" tasks, in a forty-sixty split. When Roberts reached an end of healing, the employer discharged her because her permanent restrictions prevented her from doing many of the "online" tasks the employer expected of its workers. The employer argued that it could not have one employe doing only lighter work as it rotated all its employes among the online and offline work to "relieve boredom."

In Moores Food Products, the commission concluded not only that the employer had available suitable work for injured worker Roberts, but also that it unreasonably refused to provide it to Roberts after she reached an end of healing. The available suitable work in that case, of course, was the light duty work Roberts had been performing during her healing period. The court of appeals in Moores Food Products agreed with the commission's imposition of Wis. Stat. § 102.35 (3) penalty, noting the five factors which the commission cited in its decision on the issue of whether the employer had reasonable cause for refusing to provide the available suitable work.

Those factors were: (1) the tasks the injured worker performed while on light duty were still available after she was placed on permanent disability; (2) those tasks were regularly scheduled jobs that the employer needed to have performed on a continuing basis; (3) rotation of workers between the lighter and more difficult work was not done as a matter of consistent company policy; (4) several workers were assigned to lighter online tasks indefinitely or permanently; and (5) the employer had made an exception for the rotation policy for another worker with permanent partial disability who did not rotate through the production line. Moores Food Products, supra, slip opinion, at page 6-9.

In the case now before the commission, the first two factors are present. On the other hand, the employer has established a consistent practice of rotating workers among its machines to prevent injury, and there is no evidence that "several other workers" are permanently or indefinitely assigned to any of the lighter tasks the applicant performed during her healing period. Indeed, the employer is in the process of eliminating the machines without degaters, so the number of machines the applicant could operate if she were not required to rotate would become fewer and fewer. Finally, while the applicant testified that Ms. Olson was excepted from the rotation policy, she did not know if Olson's assignment was permanent or only temporary like the applicant's own light duty. Ms. Sullivan's testimony suggests that the light duty was provided to Ms. Olson only while she was recovering from her carpal tunnel injury.

In sum, the commission concludes that the employer's need to have the applicant rotate through the production line was legitimate in this case, not simply a pretext for unreasonably refusing to rehire her. Moores Food Products, supra, slip opinion at page 6. The employer thus has established reasonable cause for failing to provide available suitable work to the applicant.

NOW, THEREFORE, the Labor and Industry Review Commission makes this

INTERLOCUTORY ORDER

The findings and order of the administrative law judge are reversed. The application is dismissed.
ND § 7.32  § 7.33

Dated and mailed September 4, 1997

Pamela I. Anderson, Chairman

David B. Falstad, Commissioner

MEMORANDUM OPINION

The commission conferred about witness credibility and demeanor with the administrative law judge who presided at the hearing. Transamerica Ins. Co. v. ILHR Department, 54 Wis. 2d 272, 283-84 (1972). However, the commission does not differ with the ALJ as to the credibility of any of the witnesses.

The ALJ found the applicant credible in her testimony that she could not do her former job, but could do the work she had been doing while healing. He pointed out that Ms. Sullivan admitted the work the applicant had been doing while she was healing was meaningful, productive work. The commission does not disagree with either of these findings.

The ALJ essentially concluded that, because the work the applicant could do was productive and meaningful, the employer did not have reasonable cause for failing to continue to provide it to her. However, the commission must respectfully disagree with this legal conclusion, for the reasons explained above.

cc: ATTORNEY FRANK L LETTERA
PODELL UGENT HANEY & DELERY SC

ATTORNEY JAMES P REARDON
KASDORF LEWIS & SWIETLIK SC

Appealed to Circuit Court. Affirmed May 9, 1998.

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Footnotes:

(1)( Back ) Dielectric Corp. v. LIRC, 111 Wis. 2d 270, 278 (Ct. App., 1982).

(2)( Back ) This "very correct standard" set out by court in Dielectric was adopted by the supreme court in West Bend v. LIRC, 149 Wis. 2d 110, 121 (1989) which specifically stated that "after an employe 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 employe." West Bend, at 149 Wis. 2d 123. See also Ray Hutson Chevrolet v. LIRC, 186 Wis. 2d 118, 123 (Ct. App., 1994).

(3)( Back ) West Bend, supra, at 149 Wis. 2d 126.

(4)( Back ) The commission has previously held that, when an employe's doctor and an IME disagree on restrictions and the employer fires the employe for failing to return to work under the IME restrictions, the employer may not avoid liability under sec. 102.35 (3), by pointing to the IME. Comet v. LIRC, court of appeals case no. 84-1163 (May 22, 1985), cited in Neal & Danas, Workers Compensation Handbook, sec. 7.37 (3d ed, 1990).