Hill v. Labor & Industry Review Commission

SUNDBY, J.

(dissenting). The Labor and Industry Review Commission incorrectly framed this case under § 102.35(3), STATS.,1 as a voluntary quit by the employee. The evidence is undisputed that the employee, Ronald Hill, did not voluntarily terminate his employment. On February 22, 1990, Marten's driver manager addressed the following letter to Hill: "Your employment with Marten Transport, Ltd., has been terminated as of 2-21-90 because you are no longer able to perform your duties as a truck driver." (Emphasis added.) It would have been unnecessary for Marten to terminate Hill's employment if he had already voluntarily quit. The issue which LIRC should have decided was whether Hill's inability to perform his job because of his injury was "reasonable cause" for Marten to refuse to "rehire" Hill.

On two other occasions during Hill's disability layoff, Marten refused to "rehire" Hill. On March 30,1987, Marten's director of safety and loss control informed Hill's rehabilitation counselor by letter: "At this point *116... I am unable to give you a definitive answer [to whether Hiil is eligible for rehire by Marten]." On January 13, 1989, Marten's director of risk management wrote Hill: "On this date, we discussed the possibility of you returning to work at Marten Transport, Ltd. Due to the fact that you are no longer able to operate a tractor/trailer vehicle, Marten Transport, Ltd., does not have a position available for you." Marten left open the possibility that Hill could apply "for any position open in the same manner as any other applicant. . . ." Thus, Marten treated Hill as any person applying for a position with the company. Under § 102.35(3), Stats., Marten had a greater obligation to Hill than to treat him as a non-employee.

LIRC's failure to recognize Marten's duty to Hill may arise because case law does not adequately define "rehire" as used in § 102.35(3), STATS. I conclude that the word "rehire" includes the case where an injured employee is turned away by the employer without reasonable cause when the employee seeks to return to his or her employment. We adopted that construction in Link Indus., Inc. v. LIRC, 141 Wis. 2d 551, 556, 415 N.W.2d 574, 576-77 (Ct. App. 1987), where we said:

We conclude that "rehire" under § 102.35(3) means that if an employee is absent from work because of an injury suffered in the course of employment, the employee must be allowed the opportunity to return to work if there are positions available and the previously injured employee can do the work.

We have also held 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." L & H Wrecking Co. v. LIRC, 114 Wis. 2d 504, 510, 339 N.W.2d 344, 347 (Ct. App. 1983).

*117Thus, where an injured employee has been terminated, we have held that it is not part of the employee's prima facie case to apply for "rehire." See id. Therefore, Hill was not required to apply to Marten for re-employment after Marten terminated him as of February 21,1990.

Unfortunately, the Link construction of "rehire" does not correspond with the construction given the word by the Wisconsin Supreme Court. In West Bend Co. v. LIRC, 149 Wis. 2d 110, 119, 438 N.W.2d 823, 828 (1989), the court said: "The statute refers to one who is not an employe but seeks to become one under sec. 102.35(3), on the basis of a prior employment status that existed when an injury occurred."

I conclude, however, that our construction of "rehire" can be reconciled with the supreme court's definition. The issue in West Bend was whether an injured employee who was laid off as part of a general seasonal plant layoff could assert a claim under § 102.35(3), Stats. The employer argued that the claimant had to be an employee when she attempted to return to work. The supreme court concluded that she did not; it said that under the statute, "the focus is on the injury, the employment status at the time of injury, the fact of being out of work, and the failure to rehire in the absence of reasonable cause." Id. at 122, 438 N.W.2d at 829. The supreme court's statement that § 102.35(3) refers to one who is not an employee but seeks to become one may be limited to the fact situation then before the court.

The legislative history of § 102.35(3), STATS., supports our construction of the word "rehire." The minutes of the Workmen's Compensation Advisory Council meeting of January 21, 1975, show that the council considered a proposal "prohibiting employers from terminating injured employes where there was *118suitable employment available within their physical limitations ...Thus, the focus of the proposal which eventually became § 102.35(3) was not former employees but present employees. I conclude that § 102.35(3) provides a remedy to the injured employee who is not formally terminated but is turned away when he or she seeks to return to his or her employment, as well as to the employee whose employment is terminated because of the employee's injury.

Another way of reconciling the West Bend language with our definition of "rehire" is to conclude that § 102.35(3), Stats., provides a remedy to an employee who has been constructively discharged by the employer's refusal to allow the employee to return to his or her employment.

Accepting this court's definition of "rehire," the inquiry becomes: What is the "period of such refusal" under § 102.35(3), Stats., referring to the employer's refusal to "rehire" an employee injured in the course of employment? In this case, the administrative law judge concluded that the employer violated § 102.35(3) as of February 21, 1990, when Marten formally terminated Hill. The AU apparently concluded that the "period of refusal" began on the date Marten formally terminated Hill and extended to the date of the ALJ's order entered April 2, 1991. This construction seems incorrect; it allows the employer to escape liability for an extended period of refusal to rehire prior to formally terminating the employee's employment. I conclude that the period of refusal begins when the employee informs the employer that he or she is ready to return to employment and is turned away by the employer. The burden is then on the employer to justify its refusal to rehire by showing that it has no job available that the employee is physically or mentally capable of per*119forming. West Bend, 149 Wis. 2d at 123, 438 N.W.2d at 829. Marten erroneously assumed that "reasonable cause" to not rehire Hill existed simply because Hill could no longer operate a tractor/trailer. Marten made no effort to employ Hill in any other capacity and treated Hill as any other applicant for employment.

Of course, an employer has no duty to an injured employee who voluntarily quits. The West Bend court made clear that that case did not present the question whether an employee who voluntarily quits waives the right under § 102.35(3), STATS., to be rehired. Id. Nor does this case present that question. Not until Hill began this proceeding did Marten claim that Hill had voluntarily terminated his employment. Marten believed that it was necessary that it terminate Hill's employment and it did so on February 21,1990.

I would direct the circuit court to remand this case to LIRC to determine whether the reason given by Marten for terminating Hill constituted "reasonable cause." I would not permit Marten to defend on the grounds that Hill voluntarily terminated his employment. I would, however, allow Marten to show that during the period of refusal no suitable employment was available that Hill could perform.

If I must accept the issue in this case as framed by LIRC, I conclude that LIRC's decision is not supported by credible evidence. The administrative law judge found that "[t]here is abundant evidence to indicate that [Hill] made numerous contacts to [Marten] regarding work." Despite the fact that LIRC did not hear or observe the witnesses, LIRC overruled the ALJ's determination of the credibility of the witnesses. LIRC found as follows:

The Commission finds as a matter of fact, based upon its assessment of the credibility of Hill and *120Hayden, that at the time of their telephone calls in December 1988 and following months Hill did not have any genuine interest in returning to work with [Marten] in an office position, and that he did not express or indicate any such interest. Hill was not considered for any openings that may have existed in positions of payroll clerk, dispatcher, or risk manager, subsequent to November 18,1988, because he had not made known to [Marten] that he was interested in any such jobs.

"Hayden" refers to Debra Hayden who started as an administrative assistant for Marten and became its risk manager. It is undisputed that she was the person Hill was to contact regarding employment. The ALJ summarized her testimony as follows: "Can't dispute [Hill's] testimony." Hill had testified that he regularly contacted Marten seeking to return to Marten in some capacity. Hayden was asked the following questions and gave the following answers:

Do you have any information to dispute [Hill's] testimony regarding how many times he called you? £>
No, sir. >
Mr. Hill testified that he called you, and on many phone calls said that he would take any work; do you have any reason to dispute that? <0
Yes, because I do not recall him stating that, I do not recall him stating that he would take any position. >
Q. I'm not asking generally; I'm asking what Mr. Hill said?
*121A. I don't know.
Q. How can you dispute what he says if you don't have any idea what he said?
A. I don't have any documentation notes that are written.
Q. Do you have any recollection at all of anything that you and Mr. Hill talked about?
A. Yes, ... we did discuss that he wanted retraining, . . . it's possible we discussed a position at Marten, . . . and it would have been taken to whoever might have had a position in the company, and in there was nothing available, there was nothing available at the time.

Hayden's testimony was correctly summarized by the ALJ; she was unable to dispute Hill's testimony. LIRC's reliance on Hayden's testimony is misplaced.

LIRC concluded it was not enough that Hill showed that he informed Marten that he wished to be placed in a position with Marten. LIRC imposed on Hill the burden of showing that suitable employment existed which he was physically and mentally capable of performing and that he applied for such employment. LIRC acknowledged that if an employer learns that an injured employee has been released to return to his or her old job, "the employer can reasonably be expected to take the initiative to offer reemployment." But the commission added:

However, 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 *122employer, 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.

Thus, in the guise of statutory construction of § 102.35(3), Stats., LIRC imposed a substantive requirement on an injured employee which is not authorized by § 102.35(3). LIRC "may not promulgate rules except that it may promulgate its rules of procedure." Section 101.04(2), STATS. Adding a substantive requirement to § 102.35(3) is not one of LIRC's "rules of procedure."

By this requirement LIRC has shifted to the injured employee the burden of determining whether suitable employment exists and of applying for that employment. In L & H Wrecking Co., we said: "It is unreasonable to shift onto the employee, especially a terminated employee, the burden of proving the availability of suitable jobs when this information is easily accessible to the employer through company business records." L & H Wrecking Co., 114 Wis. 2d at 510-11, 339 N.W.2d at 347-48. Once the employee has established a prima facie case, the burden shifts to the employer to show that no suitable work is available which the employee could perform. Universal Foods Corp. v. LIRC, 161 Wis. 2d 1, 6-7, 467 N.W.2d 793, 795 (Ct. App. 1991), cert. denied, 112 S. Ct. 332 (1991). West Allis Sch. Dist. v. DILHR, 116 Wis. 2d 410, 425-26, 342 N.W.2d 415, 423-24 (1984) demonstrates that it is not part of the employee's prima facie case to show that he or she has identified and applied for suitable employment within the employee's capabilities.

*123Thus, accepting this case as framed by LIRC, its decision cannot be sustained. For these additional reasons, I dissent.

Section 102.35(3), Stats., provides in part:

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.