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


TERRY L KRUPP, Applicant

SCRIBNER WOOD PRODUCTS, Employer

WORKER'S COMPENSATION DECISION
Claim No. 96019742


An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development 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.

ORDER

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

Dated and mailed: May 26, 1998
kruppte.wsd : 175 : 8  ND 7.33

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The applicant asserts in his petition for commission review that the administrative law judge erred in determining that the employer did not unreasonably refuse to rehire the applicant pursuant to Wis. Stat. 102.35(3). The applicant contends that the employer did not establish that there was not suitable work for him prior to June 1997, when he was rehired by the employer. The evidence indicates that the applicant was injured at work on February 26, 1996 and in May of 1996, the employer closed its plant in Mellen, Wisconsin and reopened a new plant in Glidden, Wisconsin on November 1, 1996. The applicant contacted the employer in December 1996 to inquire about available work. The applicant was not rehired until June 9, 1997.

However, the employer's owner, Mr. Scribner, testified that the edger machine which the applicant ran prior to his injury was not the same as the new machine at the employer's new business in Glidden. Mr. Scribner testified that he operated his plant on a seniority basis and that the applicant was 13th in seniority at the time that he closed the plant in May 1996. Mr. Scribner also testified that the applicant did not have the necessary skills, training or experience including experience in debarking or grading lumber to allow him to be rehired prior to June 9, 1997. Mr. Scribner provided testimony that other employes who were hired prior to the applicant between November 1996 and June 1996 did have the necessary experience, training or skills to perform the work or were hired in seniority. The applicant admitted that the edger machine that he operated at the employer's plant in Mellen was no longer available in the Glidden plant. He also admitted that the resaw that he is now working on is computerized and he would have to have training to operate it. The applicant admitted he never informed Mr. Scribner he had any special skills or experience and he did not have any experience grading lumber or operating a debarker.

Mr. Scribner testified that the job the applicant was rehired for did not become available until June 9, 1997. Mr. Scribner testified that he was having trouble with the resaw operation in December, 1996 and he informed the applicant he would be rehired into that position as soon as the resaw was operating correctly. Mr. Scribner testified that the applicant was rehired when the resaw was operating correctly in June 1997. The evidence indicates that the employer had a valid business reason for closing its plant in Mellen and moving to Glidden due to business necessity.

The administrative law judge who could observe the demeanor of witness and therefore was in a good position to make a determination as to credibility credited Mr. Scribner's testimony. Based upon an independent review of the evidence in the record, the commission has found nothing to warrant overturning the administrative law judge's credibility determination. The commission finds that the employer did not have any suitable work for the applicant prior to June 9, 1997 and that the applicant did not have the skills or training necessary to perform jobs at the new plant in Glidden prior to that time. Under the circumstances the commission finds that the employer did not unreasonably refuse to rehire the applicant pursuant to Wis. Stat. 102.35 (3).

cc: ATTORNEY KEITH W DALLENBACH
DALLENBACH ANICH & HAUKAAS SC

ATTORNEY STEPHEN D WILLETT
WILLETT & KLEIN SC


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