Bruce Belland Trucking, Inc. v. Labor and Industry Review Commission

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
December 2, 2025
A party may file with the Supreme Court a
Samuel A. Christensen petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2024AP918 Cir. Ct. No. 2022CV120

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

BRUCE BELLAND TRUCKING, INC.,

PETITIONER-APPELLANT,

V.

LABOR AND INDUSTRY REVIEW COMMISSION AND MARK MANEY,

RESPONDENTS-RESPONDENTS.

APPEAL from an order of the circuit court for Vilas County:
DANIEL L. OVERBEY, Judge. Affirmed.

Before Stark, P.J., Hruz, and Gill, JJ.

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).

¶1 PER CURIAM. Bruce Belland Trucking, Inc., (“Belland”) appeals
from a circuit court order affirming a decision of the Labor and Industry Review
No. 2024AP918

Commission (“the Commission”). The Commission concluded that Belland had
violated WIS. STAT. § 102.35(3) (2023-24),1 by failing to rehire its former
employee, Mark Maney, following a workplace injury.

¶2 On appeal, Belland concedes, as a general matter, that it had a
continuing duty to rehire Maney. Belland argues, however, that Maney had a duty
to disclose to Belland that he had filed a worker’s compensation claim against it,
and because Maney failed to do so, Belland had no duty to rehire him. Belland
also argues that the filing of that claim mooted its continuing duty to rehire
Maney. We reject these arguments and affirm the circuit court’s order affirming
the Commission’s decision.

BACKGROUND

¶3 The following facts are taken from the Commission’s decision and
are undisputed for purposes of this appeal. Belland is a company that harvests,
hauls, and sells wood. Maney was employed by Belland as a driver of a loader
truck. On February 26, 2018, Maney injured his knee while exiting the loader
truck after securing a load. He underwent surgery to repair the injury on April 3,
2018.

¶4 Maney was released to return to work without restrictions as of
April 18, 2018. On April 16, he informed Belland that he had been cleared to
work as of April 18 but would be out of town for his daughter’s wedding until
April 21. On April 22, Maney called Belland’s owner and inquired about

1
All references to the Wisconsin Statutes are to the 2023-24 version. Although the
events underlying this appeal occurred in 2018, the text of WIS. STAT. § 102.35(3) has not
changed since that time.

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returning to work. The owner told Maney that he had sold the truck that Maney
normally used, that Maney no longer had a job, and that Maney should file for
unemployment benefits. Maney became agitated, and the call ended abruptly.

¶5 Belland had planned to harvest two lots of oak trees during the early
spring of 2018. However, the DNR found oak wilt near those lots, which
prevented or limited Belland from harvesting them between April 15 and July 15,
2018. In addition, there were annual weight limits in place due to thawing roads
until about May 15, 2018. As a result of these two issues, Belland’s business
sharply declined during the spring of 2018. Belland’s owner therefore sold two of
the company’s three trucks in April 2018. He also sold a bulldozer in May 2018
to “lower payments and raise cash.”

¶6 On May 24, 2018, after the weight limits on the roads were lifted,
Belland hired another individual to drive its remaining truck. Thereafter, Maney
found a new job with a different employer, but he subsequently left that
employment and was again unemployed. Maney then had periods of employment
and unemployment.

¶7 On May 14, 2018, Maney filed a hearing application seeking
worker’s compensation benefits, alleging that Belland had violated WIS. STAT.
§ 102.35(3) by refusing to rehire him following his workplace injury.2 A hearing
on Maney’s claim took place before an administrative law judge (ALJ) on

2
In its decision, the Commission noted that Maney had signed and dated the hearing
application on April 26, 2018, but the application was “marked as received by the worker’s
compensation division on May 14, 2018.” The Commission also noted that markings on the
application “indicate that it was not served on [Belland] by the [Department of Workforce
Development (DWD)] under WIS. STAT. § 102.17(1)(a) until June 21, 2018.”

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September 29, 2021. Prior to the hearing, Belland “conceded jurisdictional facts,
an average weekly wage of $1040.96, and the occurrence of a compensable injury
to [Maney’s] right knee on February 26, 2018.” Belland disputed, however, that it
had violated § 102.35(3) by refusing to rehire Maney.

¶8 On November 18, 2021, the ALJ issued a decision concluding that
Belland did not unreasonably refuse to rehire Maney in violation of WIS. STAT.
§ 102.35(3). Specifically, the ALJ found that a downturn in Belland’s business led
it to sell equipment, such that Belland no longer had a truck for Maney to drive
when he sought reinstatement on April 22, 2018.

¶9 Maney filed a petition for review of the ALJ’s decision by the
Commission. Belland filed an answer and a one-page letter brief asking the
Commission to affirm the ALJ’s decision.

¶10 On December 13, 2022, the Commission issued a unanimous order
affirming in part and reversing in part the ALJ’s decision. The Commission
concluded that Maney had made a prima facie showing that he was injured in the
course of his employment and that Belland subsequently refused to rehire him.
See Anderson v. LIRC, 2021 WI App 44, ¶12, 398 Wis. 2d 668, 963 N.W.2d 89.
Accordingly, the burden shifted to Belland to show that there was reasonable
cause for its refusal to rehire Maney. See id.

¶11 The Commission concluded that Belland’s “economic circumstances
due to the annual weight load restriction and the oak wilt restriction—
circumstances that l[ed] [Belland] to sell significant portions of its capital
equipment—gave it reasonable cause to refuse to immediately rehire [Maney] as
of April 22, 2018.” The Commission found, however, that by May 24, 2018,
Belland’s economic circumstances “had improved to the point that [Belland] was

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able to hire a new employee … to perform the same duties … that [Maney] had
performed prior to his injury.” As such, the Commission determined that while
Belland did not have suitable employment available for Maney on April 22, 2018,
“it did have such work available by May 24, 2018.” The Commission concluded
that Belland had a continuing duty to rehire Maney under these circumstances and
that it violated that duty by failing to offer Maney the job that became available on
May 24, 2018, before offering that position to another individual.

¶12 The Commission acknowledged that, “[a]t some point, presumably,
enough time passes that an employer would not have to try to locate a former
worker and offer him or her a job” following a workplace injury. Nevertheless,
the Commission stated “that point had not been reached in this case,” and Belland
“did not have reasonable cause for refusing to contact a former, injured worker
about employment available one month after a discharge.”

¶13 The Commission rejected Belland’s argument that its duty to rehire
Maney ended on May 14, 2018, when Maney filed a worker’s compensation claim
alleging an unreasonable refusal to rehire. The Commission noted that Belland
had cited no authority in support of that proposition and that there was “no legal
basis to conclude that an employer’s liability to an injured worker under the
worker’s compensation law somehow ends upon the filing of a hearing
application.”

¶14 Belland sought judicial review of the Commission’s decision, and
the circuit court affirmed the decision in an oral ruling. The court explained that
“the applicable statutes and regulations imposed on [Belland] a duty to rehire” and
that Belland still had that duty one month after Maney’s termination. The court
rejected Belland’s argument that it no longer had a duty to rehire Maney after he

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filed a claim under WIS. STAT. § 102.35(3), stating that such a conclusion would
be “not only counterintuitive,” but also “contrary to the intent of the statute.” The
court subsequently entered a written order memorializing its oral ruling, and
Belland now appeals from that order.

DISCUSSION

¶15 On appeal, we review the Commission’s factual findings and legal
conclusions, not those of the circuit court. Anderson, 398 Wis. 2d 668, ¶10.

The scope of judicial review is circumscribed by
WIS. STAT. § 102.23(1)(e), under which a worker’s
compensation order or award may be overturned only if
[the Commission] acted without authority, the order or
award was procured by fraud, or if [the Commission’s]
findings of fact do not support the order or award.

Id.

¶16 The dispositive issue in this case is whether Belland unreasonably
refused to rehire Maney following his workplace injury, in violation of WIS. STAT.
§ 102.35(3). Under that statute, an employer

who without reasonable cause refuses to rehire an
employee who is injured in the course of employment,
when suitable employment is available within the
employee’s physical and mental limitations, … has
exclusive liability to pay to the employee, in addition to
other benefits, the wages lost during the period of such
refusal, not exceeding one year’s wages.

Sec. 102.35(3).

¶17 “Whether an employer unreasonably refused to rehire an individual
is a mixed question of fact and law.” Anderson, 398 Wis. 2d 668, ¶11. We will
uphold the Commission’s findings of historical fact if there is credible and

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substantial evidence on which reasonable persons could rely to make those
findings. Id. However, where, as here, the relevant facts are undisputed, “our
review is limited to [the Commission’s] application of the worker’s compensation
statutes to those facts,” which is a question of law that we review de novo. Id.

¶18 As noted above, “[t]he analysis under WIS. STAT. § 102.35(3)
employs a burden-shifting framework.” Id., ¶12. “After an employee shows that
he or she has been injured in the course of employment and subsequently denied
rehire, it becomes the employer’s burden to show reasonable cause for not rehiring
the applicant.” Id. An employer may satisfy this burden by showing that there
was no other suitable employment available within the employee’s physical and
mental limitations. Id.

¶19 In this case, it is undisputed that Maney made a prima facie showing
that he was injured in the course of his employment and was subsequently denied
rehire. The disputed issue is whether Belland met its burden to show reasonable
cause for refusing to rehire Maney. We conclude that the Commission properly
applied WIS. STAT. § 102.35(3) to the undisputed facts when it determined that
Belland failed to meet its burden.

¶20 As an initial matter, the Commission properly concluded that
Belland had reasonable cause for refusing to rehire Maney on April 22, 2018,
because the undisputed facts showed that, due to economic factors, Belland did not
have suitable employment available for Maney at that time. The undisputed facts
further showed, however, that by May 24, 2018, the relevant economic factors had
improved enough for Belland to hire a new employee to perform the same work
that Maney had performed prior to his injury. The Commission properly
concluded that, under these circumstances, Belland had unreasonably refused to

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rehire Maney on May 24, 2018, because Belland had suitable employment
available for Maney on that date but instead hired another individual.

¶21 On appeal, Belland does not dispute that it had a continuing duty to
rehire Maney under WIS. STAT. § 102.35(3) after it initially refused to rehire him
on April 22, 2018. Instead, Belland argues that: (1) Maney had a duty to disclose
to Belland that he had filed a worker’s compensation claim on May 14, 2018, and
because Maney failed to do so, Belland had no duty to rehire him; and
(2) Maney’s filing of the claim mooted or suspended Belland’s continuing duty to
rehire him.

¶22 In response, the Commission argues that Belland forfeited these
arguments by failing to raise or adequately develop them before the Commission.
See Bunker v. LIRC, 2002 WI App 216, ¶15, 257 Wis. 2d 255, 650 N.W.2d 864
(“It is settled law that to preserve an issue for judicial review, a party must raise it
before the administrative agency.”). More specifically, the Commission asserts
that Belland did not raise any argument before it that Maney had a duty to disclose
the filing of his WIS. STAT. § 102.35(3) claim while seeking reinstatement. The
Commission concedes that Belland did raise an argument below that its continuing
duty to rehire ceased when Maney filed his worker’s compensation claim. The
Commission argues, however, that Belland failed to adequately develop that
argument because Belland cited no legal authority to support it. Cf. State v. Pettit,
171 Wis. 2d 627, 646-47, 492 N.W.2d 633 (Ct. App. 1992) (stating that the court
of appeals need not address undeveloped arguments or arguments unsupported by
references to legal authority).

¶23 Even if Belland forfeited its current arguments by failing to raise
them before the Commission, “[t]he forfeiture rule is a rule of judicial

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administration, and thus a reviewing court may disregard a forfeiture and address
the merits of an unpreserved issue in an appropriate case.” See State v. Counihan,
2020 WI 12, ¶27, 390 Wis. 2d 172, 938 N.W.2d 530. Here, we exercise our
discretion to address the merits of Belland’s arguments because the underlying
facts are undisputed and both parties have briefed the issues. See State v. Bodoh,
226 Wis. 2d 718, 737, 595 N.W.2d 330 (1999).

¶24 As noted, Belland first argues that it had no duty to rehire Maney
because Maney failed to disclose that he had filed a worker’s compensation claim
against Belland on May 14, 2018. Citing Ollerman v. O’Rourke Co., 94 Wis. 2d
17, 37, 288 N.W.2d 95 (1980), Belland asserts that there is a “duty to disclose the
pending legal action pursuant to Restatement of Torts 2d 551 (2)(e).” The
worker’s compensation system, however, was designed to avoid the law of torts.
When the legislature enacted the Worker’s Compensation Act, it “intended to
grant employers immunity from all tort liability on account of injuries to
employees.” Guse v. A. O. Smith Corp., 260 Wis. 403, 406-07, 51 N.W.2d 24
(1952). “By entering into an employment relationship, then, the employer and
employee make it part of their relationship to resolve work-related injury disputes
within the statutory worker’s compensation framework.” Adams v. Northland
Equip. Co., 2014 WI 79, ¶25, 356 Wis. 2d 529, 850 N.W.2d 272. As such, the tort
law “duty to disclose” discussed in Ollerman is irrelevant to Maney’s worker’s
compensation claim against Belland.

¶25 Belland also cites case law pertaining to “good faith” in contract
negotiations to support an argument that an employer cannot be expected to hire a
person who is suing it. Again, though, these cases are materially distinguishable
because of Maney’s and Belland’s participation in the worker’s compensation
system. Here, Maney did not sue Belland; he filed a worker’s compensation claim

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against it. Belland cites no case law in support of the proposition that, under these
circumstances, Maney was required to disclose the filing of his claim to Belland
while seeking reinstatement.

¶26 Belland further cites L & H Wrecking Co. v. LIRC, 114 Wis. 2d
504, 510, 339 N.W.2d 344 (Ct. App. 1983), which held that “to require a
terminated employee to report to work in order to recover under [WIS. STAT.
§ 102.35(3)] is an unreasonable construction of the statute.” However, it is
unclear why Belland believes that L & H Wrecking supports its position,
particularly given Belland’s concession that “the factual circumstances in [L & H
Wrecking] differed from those of the case at hand.” We see nothing in L & H
Wrecking that supports Belland’s argument on appeal.

¶27 In short, Belland has failed to cite any legal authority actually
supporting its assertion that Maney had a duty to disclose that he had filed a
worker’s compensation claim against Belland under WIS. STAT. § 102.35(3).3 We
therefore reject Belland’s first argument on appeal.

¶28 Belland’s second argument on appeal is that the filing of a claim
under WIS. STAT. § 102.35(3) “renders the continuing duty to rehire moot.”
(Formatting altered.) Stated differently, Belland argues that once Maney filed his
claim based on Belland’s April 22, 2018 refusal to rehire him, Maney was barred
from asserting any claim that Belland subsequently refused to rehire him on a later
date.

3
Additionally, we note that by statute, after an employee files a hearing application, it is
the DWD’s responsibility to “mail a copy of the application to all other parties in interest.” See
WIS. STAT. § 102.17(1)(a)1. As noted above, the DWD served a copy of the hearing application
on Belland on June 21, 2018.

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No. 2024AP918

¶29 The plain language of WIS. STAT. § 102.35(3) does not support this
argument. See State ex rel. Kalal v. Circuit Ct. for Dane Cnty., 2004 WI 58, ¶45,
271 Wis. 2d 633, 681 N.W.2d 110 (explaining that statutory interpretation “begins
with the language of the statute” and “[i]f the meaning of the statute is plain, we
ordinarily stop the inquiry”). Section 102.35(3) states that an employer “who
without reasonable cause refuses to rehire an employee who is injured in the
course of employment, when suitable employment is available within the
employee’s physical and mental limitations,” is liable to that employee. The
statute says nothing about an employer’s duty to rehire being suspended or mooted
by the filing of a claim. We agree with the Commission that “[i]f the [l]egislature
had intended to suspend the employer’s duty to rehire based on the filing of
a … § 102.35(3) application, it would have explicitly stated this intention by
including the appropriate language” in the statute.

¶30 Belland’s interpretation is also contrary to the purpose of WIS. STAT.
§ 102.35(3). Our supreme court has explained that § 102.35(3) “must be liberally
construed to effect as fully as possible the beneficent objectives of the workers
compensation act.” West Allis Sch. Dist. v. DILHR, 116 Wis. 2d 410, 422, 342
N.W.2d 415 (1984). The plain words of the statute show that “its purpose is to
prevent discrimination against employees who have previously sustained injuries
and to see to it, if there are positions available and the injured employee can do the
work, that the injured person goes back to work with his former employer.” Id.
Belland’s interpretation of § 102.35(3) would allow an employer to avoid liability
by refusing to rehire an employee without reasonable cause after the employee has
filed a worker’s compensation claim, which would be contrary to the statute’s
manifest purpose. See Kalal, 271 Wis. 2d 633, ¶49 (“[A] plain-meaning

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interpretation cannot contravene a textually or contextually manifest statutory
purpose.”).

¶31 Belland’s citations to case law are also unavailing. For instance,
citing A.D. Thomson Co. v. Industrial Commission, 222 Wis. 445, 450, 268 N.W.
113 (1936), reh’g denied and opinion modified sub nom., A.D. Thompson Co. v.
Industrial Comm’n, 222 Wis. 445, 269 N.W. 253 (1936), Belland asserts that
“[w]hen the application was filed May 14, 2018, there was but one cause of
action.” Citing Yunker v. LIRC, 115 Wis. 2d 525, 531, 341 N.W.2d 703 (Ct.
App. 1983), Belland then asserts that the Commission “lacks equitable power to
relieve Maney of the consequences of filing an application at the time he did since
all claims through [WIS. STAT. §] 102.35(3) are deemed filed on May 14, 2018.”
However, neither A.D. Thomson nor Yunker involved an employee’s claim under
§ 102.35(3) for an employer’s unreasonable refusal to rehire. As such, those cases
are materially distinguishable and do not support Belland’s argument that Maney’s
filing of a claim mooted Belland’s continuing duty to rehire him.

¶32 Belland also cites prior Commission decisions for the proposition
that “the filing of an application tolls the [s]tatute of limitations.” As an initial
matter, the Commission’s prior decisions are not binding on this court. See
Amazon Logistics, Inc. v. LIRC, 2023 WI App 26, ¶34 n.12, 407 Wis. 2d 807,
992 N.W.2d 168, review granted, 2024 WI 3, 4 N.W.3d 902, and review dismissed
as improvidently granted, 2024 WI 15, 411 Wis. 2d 166, 4 N.W.3d 294. In any
event, the decisions that Belland cites are inapt, as Belland has not shown that
Maney’s claim was filed outside of the statute of limitations.

¶33 Belland further asserts that an employer “can only violate [WIS.
STAT. § 102.35(3)] on one date” and “cannot violate [§ 102.35(3)] on two separate

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dates.” However, Belland cites no legal authority in support of these assertions.
Instead, Belland argues that allowing an employee to allege a violation of the
statute on more than one date “would allow a double recovery to be claimed,”
which would be an “arbitrary and capricious” result.

¶34 We disagree that our interpretation of WIS. STAT. § 102.35(3) would
permit a double recovery. If an employee files a claim under § 102.35(3) based on
an employer’s initial refusal to rehire, and the employer subsequently refuses to
rehire the employee a second time, the Commission will need to determine
whether each refusal was unreasonable. If the Commission determines that the
employer lacked reasonable cause for the first refusal to rehire, then the employee
will be entitled to damages starting from the date of the first refusal, and the
second refusal will be immaterial. If the Commission instead determines—as it
did here—that the employer had reasonable cause for the first refusal to rehire but
lacked reasonable cause for the second refusal, then the employee will be entitled
to damages from the date of the second refusal only. In neither scenario will the
employee receive a double recovery.

¶35 Finally, Belland asserts that it relied on “the existing April 22, 2018
allegation,” which gave it a “reasonable basis to believe [WIS. STAT. §] 102.35(3)
was no longer imposing a duty to rehire on May 24, 2018.” Belland does not
explain, however, why any such belief that it no longer had a duty to rehire Maney
would have been reasonable. As explained above, neither the plain language of
§ 102.35(3) nor the statute’s purpose support Belland’s argument that an
employer’s continuing duty to rehire is rendered moot when an employee files a
claim under the statute. Moreover, Belland has cited no case law directly
supporting that proposition. Under these circumstances, we reject any claim that

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No. 2024AP918

Belland had a reasonable basis to believe that it no longer had a duty to rehire
Maney on May 24, 2018.

By the Court.—Order affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.

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