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

WAYNE PIPER, Applicant

ROEHL TRANSPORT INC, Employer

LIBERTY MUTUAL FIRE INS CO, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 94028270

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 modification:

1. Delete the last four sentences of the eleventh paragraph of the ALJ's FINDINGS OF FACT AND CONCLUSIONS OF LAW, and substitute:

"The applicant had reasonable cause to refuse the job the employer offered him after his work injury."

ORDER

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

Dated and mailed March 26, 1997
ND § 5.23

Pamela I. Anderson, Chairman

Richard T. Kreul, Commissioner

David B. Falstad, Commissioner

MEMORANDUM OPINION

The applicant lives in Green Bay. He was injured in his job as an over-the-road truck driver for the employer, a business located in Marshfield. After his work injury (a herniated disc), the applicant could no longer work as a truck driver. The employer offered him office work in Marshfield as dispatcher, or driver manager, at wages within 85 percent of his pre-injury wage (1).

Causation and the extent of functional impairment, both in terms of a functional impairment rating and work restrictions, are not at issue. Nor, really, is the extent of loss of earning capacity (LOEC), assuming the applicant is actually eligible for an LOEC award. The primary issue here is whether the applicant's refusal of the office work cuts off any LOEC award under sec. 102.44 (6)(g), Stats., and any temporary total disability award under sec. DWD 80.47, Wis. Adm. Code. The ALJ paid both temporary disability and LOEC, although he paid LOEC at the low end of the range estimated by the respondent's vocational expert.

The employer and the insurer (collectively, the respondent) appealed. However, like the ALJ, the commission concludes that the work offered to the applicant after his injury does not bar payment of LOEC or temporary disability. It therefore affirmed the ALJ's decision with a modification explained below.

Under sec. 102.44 (6)(a), Stats., an injured worker is not entitled to an award for loss of earning capacity if he has returned to work for the time-of-injury employer at a wage within 85 percent his pre-injury wage. The commission has also held that an applicant may not be entitled to LOEC if he quits or is fired from such work, depending on the facts of the quit or discharge. (2) See section 102.44 (6)(b), Stats. Finally, the law provides that an injured worker may not receive LOEC if he refuses a bona fide offer of such work, without reasonable cause, under sec. 102.44 (6)(g), Stats.

In this case, the ALJ concluded that the post-injury driver manager job offered to the applicant was not made in good faith. The commission is not certain it would have necessarily reached the same conclusion. However, the commission concludes the applicant had reasonable cause to refuse the offer, even if it was made in good faith. The basis for the applicant's reasonable cause to refuse the offer is amply supported by the ALJ's factual findings.

In short, the applicant would have had to drive 130 miles one way from the applicant's home to the employer's office to perform his duties as a driver manager. The applicant testified that distance was part of why he refused the work. Transcript, page 20.

The commission has previously allowed injured workers who receive LOEC to refuse jobs involving considerably less commuting distance. For example, the commission found an applicant remained eligible for LOEC despite refusing to travel 34 miles to a new plant after the employer closed the plant at which the worker formerly worked. Janice Groehler v. Horton Manufacturing Co. Inc., WC claim no. 930311849 (LIRC, June 5, 1996), affirmed Burnett County circuit court case no. 96-CV-73 (February 10, 1997). In so doing, the commission cited Farmers Mill of Athens Inc. v. ILHR Dept., 97 Wis. 2d 576 (Ct. App., 1979), where an applicant was held eligible for unemployment compensation when he refused a transfer to a job 25 miles away. The commission recently reached a very similar result in Loken v. Roehl Transport Inc., WC claim no. 93041607 (LIRC, March 19, 1997).

The respondent, of course, counters that the employer would allow the applicant to stay in a "bunkhouse" on its premises. The respondent argues that the onsite housing it would provide for the office jobs would beat the accommodations to which the applicant was accustomed as an over-the-road driver. The commission does not doubt that is true. However, the driver-manager job offered the applicant was office work paying eighty-five percent of his previous salary, not over the road trucking. The commission cannot conclude it is reasonable to expect the applicant to live away from his family or move his home under these circumstances.

The commission appreciates that the employer has other workers in this kind of "return to work" arrangement, who drive to Marshfield from Stoughton and Ladysmith. However, it does not appear from the record whether these other workers have taken the dispatcher or driver-manger work permanently (as would be the case here), or simply as a temporary assignment based on temporary restrictions. Transcript, pages 79 and 86. The longest anyone has ever worked as a dispatcher and stayed in the bunkhouse is six months; that fellow returned to work for the employer as a driver. Transcript page 84.

cc: ATTORNEY MARK V SEWALL
SIGMAN JANSSEN STACK WENNING & SUTTER

ATTORNEY PETER S NELSON
MENN NELSON SHARRATT TEETAERT & BEISENSTEIN LTD

Appealed to Circuit Court. Affirmed October 8, 1997.  Court of Appeals affirmed, per curiam, June 9, 1998.

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Footnotes:

(1)( Back ) The offered wage actually was "85 percent of your pre-injury wage." Exhibit 7.

(2)( Back ) Terry Ann Mallette v. Hartford Finishing Inc., WC claim no. 93036016 (LIRC, July 31, 1995), affirmed, Dodge County Circuit Court case no. 95 CV 402 (March 22, 1996).