In Anderson v. LIRC (2020AP27), the District III Court of Appeals held that an employer was not liable for refusing to rehire an injured employee because the employee’s injuries prevented him from performing his previous job, while the employee also failed to express an interest in taking a different position with the company.

Facts

Anderson was injured while working for Northridge Chevrolet GEO. While Anderson was recovering, Northridge hired a permanent replacement for his position, and informed Anderson that he could return to discuss a different position with fewer physical demands when he felt better. Northridge later informed Anderson that he would no longer be considered an active employee; Anderson and Northridge never communicated again with one another regarding his employment. After Anderson completed physical therapy, his doctor assigned permanent lifting restrictions that would prevent Anderson from performing his previous job at Northridge.

A few months after completing physical therapy, Anderson filed a Worker’s Compensation claim seeking the penalty for refusal to rehire under Wis. Stat. § 102.35(3). The administrative law judge (ALJ) determined that Northridge had terminated Anderson and that its refusal to rehire him for the same position was reasonable because Anderson’s injuries prevented him from performing the position. The ALJ also determined that because Anderson never notified Northridge of his interest in a sales position or of his medical clearance to begin working again, the company could not be held responsible for refusing to rehire him.

Anderson petitioned the Labor and Industry Review Commission (LIRC) for review. LIRC affirmed the ALJ’s determination. Anderson petitioned for judicial review of LIRC’s decision, which the circuit court held was supported by substantial evidence. Anderson appealed.

Discussion

The appellate court affirmed the circuit court’s ruling, concluding in its opinion that “we reject any assertion by Anderson that LIRC erred by determining that Northridge had reasonable cause to refuse to rehire him for the position of parts advisor. As to Northridge’s refusal to rehire Anderson for a different position, we affirmatively adopt Hill as our own interpretation of WIS. STAT. § 102.35(3), including in instances where the employee had been terminated from his or her prior position prior to his or her medical recovery being complete. Accordingly, we conclude that Anderson failed to present a prima facie case for liability under subsec. (3), because he failed to express an interest to Northridge in other work.”

This opinion was recommended for publication in the official reports.