P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)



Claim No. 95002415

An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development (Department of Industry, Labor and Human Relations prior to July 1, 1996) 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, except that it makes the following modifications:

1. The fifth through seventh paragraphs of the administrative law judge's findings of fact are deleted and the following substituted therefor:

"The applicant's wage was $5.90 per hour. He worked six days before his injury. The least he worked in any one day was 4.34 hours, the most was 5.92 hours, and the average was 4.98 hours. The applicant's actual daily hours, therefore, very closely fit the four to six hour range estimate by the employer's human resource manager Terry Zykla. Although the applicant worked two days in one week and four in the other, it may also be inferred from Mr. Zykla's testimony that the applicant would normally have worked a five-day week. On average, then, the applicant could expect to work 24.9 hours per week, and earn a weekly wage of $146.91.

"Under sec. 102.11 (1), Stats., part-time wages are expanded to a full-time rate to yield an average weekly earnings figure for the purposes of determining disability compensation and death benefits. However, the penalty under sec. 102.35 (3), Stats., refers to "wages lost . . . not exceeding one year's wages" not, for example, "average annual earnings" as defined in sec. 102.11 (2), Stats. Nor does the rationale for expanding part-time wages in disability cases (to account for the general loss of ability to work full time or at another part-time job) apply in a claim for lost wages from an unreasonable refusal to rehire an injured worker to a specific job. Finally, the commission has previously held that the sec. 102.35, Stats., liability is based on actual wages in part-time employment, not an expanded wage under sec. 102.11 (a) through (c), Stats. (1) In sum, the applicant's average weekly wage shall not be expanded for the purposes of determining the penalty under sec. 102.35, Stats."

2. Delete the fifteenth and sixteenth (last two) paragraphs of the ALJ's Findings of Fact, and substitute:

"Accordingly, Mr. Muhammed, who was unemployed for more than one year, is entitled to 52 weeks of wages at a rate of $146.91, yielding $7,639.32.

"By request and pursuant to sec. 102.26 (3), Stats., the attorney fee is set at 20 percent of $7,639.32, or $1,527.86. Attorney costs have been established at $40.80. The amount due the applicant thus is $6,070.66, or $7,639.32 less fees of $1,527.86 and costs of $40.80."

3. Delete all three paragraphs of the "ORDER" and substitute:

"Within 30 days, the respondent employer shall pay all of the following:

"1. To the applicant, Muhbash-Shir Muhammed II, Six thousand seventy dollars and sixty-six cents ($6,070.66) for liability under sec. 102.35 (3), Stats.

"2. To the applicant's attorney, Daniel J. Kelley, the sum of One thousand five hundred twenty-seven dollars and eighty-six cents ($1,527.86) for fees, and Forty dollars and eighty cents ($40.80) in costs."


The findings and order of the administrative law judge, as modified, are affirmed.

Dated and mailed May 8, 1997
muhammu.wmd : 101 : 3  ND 7.34  7.35

Pamela I. Anderson, Chairman

David B. Falstad, Commissioner


a. Overview.

In its petition for review and its brief supporting the petition, the employer makes essentially three arguments: (1) that the employer had reasonable cause for discharging the applicant; (2) that even if it did not, the employer's liability for wages lost under sec. 102.35 (3), Stats., should be limited to wages lost for the period from January 12 to March 1995; and (3) in any event, the applicant's part-time weekly wage should be used to calculate the lost wages rather than an expanded full time wage.

The commission agrees that the applicant's wages should not have been expanded to full-time, for the reasons stated above. Consequently, it has amended the ALJ's decision on that point. However, the commission is satisfied that the ALJ correctly concluded both that employer unreasonably refused to rehire the applicant, and that the applicant is entitled to a full fifty-two weeks of wages (albeit at the part-time rate.)

b. Refusal to rehire.

Section 102.35 (3), Stats., 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. (2)

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. (3) The reasonable cause may either be that the work injury prevents the worker from doing available work, or that the discharge was for a reasonable or "intervening" cause unrelated to the injury, such as misconduct, poor performance or a business slowdown. (4)

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. (5) 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 its own doctor if they conflict with those set by the worker's doctor. (6)

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 addition, the law applies even where a worker fired only in part because of the work injury. Great Northern, at 189 Wis. 2d 318-19.

In this case, the applicant has clearly shown he was an employe who sustained a work injury and was discharged. The burden thus shifted to the employer to show reasonable cause for the discharge.

The applicant testified he was fired because he could not work light duty; the employer's witnesses testified that the applicant was fired because he was no-call no-show either before or after recovering from the work injury. However, the applicant's version of events is substantiated by the records of a neutral third party, Kenosha Correctional Center. Based on the record in this case, the commission must conclude, as the ALJ did, that the applicant was fired simply because he would not work on light duty, despite being excused from work totally by his doctor. On this basis, the commission cannot conclude the employer has shown reasonable cause for refusing to rehire the applicant once he was released to work.

c. Amount of employer's liability; mitigation of damages.

This brings us to the last point: whether the employer's liability should end on or about March 1, 1995, based either on the applicant's re-employment, or his unavailability for work.

The commission has consistently held that the "one year's wage" limit is a monetary limit not a temporal one. Consequently, an employer's liability is not eliminated simply because a worker finds work for a second employer or is temporarily unavailable for work for personal reasons. Rather, if the second job ends, or the period of unavailability ends, the time-of-injury-employer remains liable for the resulting renewed wage loss, assuming the wage loss remains attributable to the original illegal discharge. In other words, the clock resumes running until the employer's liability for a year's worth of wages is satisfied. See: Neal & Danas, Worker's Compensation Handbook, sec. 7.35 (3d ed., 1990) and Mark Gutkowski v. Bell Laboratories, Inc., WC case no. 85-01922 (LIRC, October 30, 1987). And, of course, if the worker earns less in his second job than he had earned with the time-of-injury employer, the employer's liability for lost wages may continue to accrue even while the worker is re-employed.

In this case, the applicant has had two jobs since being fired from the employer. The first, at Lake Electric, was for about one hour on March 1, 1995. The applicant next found work with Laidlaw, evidently a bus company, in March 1996. He remained employed there as of the date of hearing in September 1996.

Also affecting the applicant's availability for work was a two week period beginning in March 6, 1996 when he was placed in "lock-up" in a different prison (Racine Correctional Institute.) He was then sent to a third prison in northern Wisconsin and was ineligible for work release there as well. The employer represents in its brief that this action was due to the applicant's involvement in a fight, although the record itself is not clear on the point. Transcript, page 26, lines 8 to 18, and page 30.

At any rate, the commission cannot tell from the record exactly how long the applicant's ineligibility for work release lasted, or when he was released from prison. The commission's holding in Gutkowsky could be read to support the argument that the employer's lost wages liability should temporarily not accrue while the applicant was unable to work on work release. In that case, a remand might be appropriate to find out how long the applicant was unavailable for work due to his prison transfer, as well as the amount of wages he earned in re-employment.

However, the employer does not ask for a remand to determine whether the accrual of its liability should have been temporarily delayed based on the applicant's unavailability for work or based on wages earned in re-employment. (7)  Rather the employer seeks to have its liability ended in total on or about March 1, 1995 when the applicant obtained re-employment with Lakeview Electric.

In support of its position, the employer cites cases dealing with mitigation of damages generally. However, the employer does not cite a case dealing specifically with sec. 102.35 (3), Stats., which supports reducing the monetary limit on lost wages under sec. 102.35 (3), Stats., based on a failure to mitigate. Indeed, the workers compensation law imposes no explicit requirement of mitigation, as is required under similar statutes. See for example, sec. 111.39 (4)(c), Stats. While the commission does not foreclose the possibility of reducing the monetary limit on liability under sec. 102.35 (3), Stats., (or ending the liability outright) based on a mitigation theory, it declines to do so on this record.



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(1)( Back ) Margaret R. Bachhuber v. City of Kaukauna, WC claim no. 8800016 (LIRC, July 27, 1994). See also State of Wisconsin v. LIRC and Klobertanz, Dane County circuit court case no. 93-CV-4580 (June 14, 1994) and Kruger v. Belleville Printing, WC case no. 93022421 (ALJ decision, February 28, 1994), affirmed (LIRC, September 29, 1994), affirmed sub nom. Larson v. LIRC and Kruger, Dane County circuit court case no. 94-CV-3316 (November 25, 1995).

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

(3)( 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.

(4)( Back ) See Great Northern Corp. v. LIRC, 189 Wis. 2d 318-19 (Ct. App., 1994); Ray Hutson Chevrolet v. LIRC, 186 Wis. 2d 118, 123 (Ct. App., 1994).

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

(6)( 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). See also Ty Babitts v. Neenah Foundry Company, WC case no. 9001335 (LIRC, September 20, 1991).

(7)( Back ) Given that the employer does not ask for a remand, the commission declines to order one sua sponte. It may well be that by the close of the hearing record in October 1996, the full amount of the sec. 102.35 (3), Stats., from the January 1995 discharge would have accrued, regardless of any periods of nonaccrual. Indeed, this may be one of the reasons the employer requests its liability be ended on March 1, 1995, rather than simply that the accrual of the liability be delayed. Stated another way, unless the monetary limit on liability is reduced, the full $7,639.32 awarded in this decision appears to have accrued by the date of the ALJ's decision.