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

GREGORY TSCHIDA, Complainant

STATE OF WI  UW RIVER FALLS, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. CR200503086, EEOC Case No. 26G200501828C


An administrative law judge (ALJ) for the Equal Rights 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 conclusion in that decision as its own.

DECISION

The decision of the administrative law judge (copy attached) is affirmed.

Dated and mailed December 30, 2008
tschigr . rsd : 164 : 9

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

MEMORANDUM OPINION

To prove disability discrimination under the Wisconsin Fair Employment Act (hereinafter "Act"), a complainant must establish that he or she is disabled, within the meaning of the Act. Boynton Cab Co. v. DILHR, 96 Wis. 2d 396, 291 N.W.2d 850 (1980). Section 111.32(8) of the Act defines the term "disabled individual" as an individual who (a) has a physical or mental impairment which makes achievement unusually difficult or limits the capacity to work; (b) has a record of such an impairment; or (c) is perceived as having such an impairment. An "impairment" for purposes of the Act is a real or perceived lessening or deterioration or damage to the normal bodily function or bodily condition, or the absence of such bodily function or condition. City of La Crosse Police and Fire Comm. v. LIRC, 139 Wis. 2d 740, 407 N.W.2d 510 (1987). The test to determine whether an impairment makes achievement unusually difficult is concerned with the question of whether there is a substantial limitation on life's normal functions or on a major life activity. By contrast, the "limits the capacity to work" test refers to the particular job in question. AMC v. LIRC, 119 Wis. 2d 706, 350 N.W.2d 120 (1984).
 

Did the complainant demonstrate that he has a physical or mental impairment which makes achievement unusually difficult or limits his capacity to work?

In the brief in support of his petition for commission review the complainant asserts that he met his burden of establishing he has a disability. The commission disagrees, for several reasons. The commission initially notes that it is not entirely clear what impairment the complainant is claiming constitutes a disability, as his arguments on this point have evolved. In his complaint the complainant indicated that his disability was a neck injury and, when asked to describe his disability at the hearing, he stated that he suffers from weakness in his left hand and part of his arm, and has limited mobility in his left shoulder and neck. However, in subsequent hearing testimony, as well as in his brief to the commission, there are references to the fact that the complainant suffers severe headaches as a result of his neck injury, which the complainant apparently contends constitute a disability in their own right. The complainant has, in any event, not presented any testimony from a physician,  (1)   nor any certified medical evidence supporting his claims that he has an impairment, be it headaches or a neck injury. The complainant's only medical evidence consists of uncertified memos and reports prepared with respect to his worker's compensation injuries. He has provided no non-hearsay medical evidence showing what tests were performed and what diagnosis reached. Where, as here, the existence of a disability is in dispute, the complainant must present competent medical evidence establishing the nature, extent, and permanency of an impairment. Erickson v. LIRC & Quad Graphics, 2005 WI App 208, 287 Wis. 2d 204, 704 N.W.2d 398 (2005); Kaye v. City of Milwaukee (LIRC, Sept. 30, 2008).

Even if the commission could base findings on the content of the complainant's uncertified medical evidence, that evidence would not warrant a conclusion that the complainant has a permanent impairment. In a "Medical Report on Industrial Injury" prepared in 2001, the complainant's treating physician, Dr. Agre, indicated that he made a diagnosis of medial cord brachial plexopathy, discogenic pain with multiple cervical strain, and left shoulder rotator cuff injuries. Dr. Agre indicated that the complainant's healing period had ended and that these conditions constituted a permanent disability for which he assessed a worker's compensation rating of 27%. (Ex. C-2). However, in a letter prepared by Dr. Agre, dated June 28, 2005, shortly after the complainant's discharge, Dr. Agre indicated that the complainant's condition had vastly improved since the initial report was prepared, and that he would no longer assess any disability rating with regard to the conditions diagnosed in 2001. Dr. Agre further acknowledged that he had miscalculated the permanent partial disability rating by confusing a shoulder rating with a whole body rating and that what is long-term disabling is not the conditions related to the injury, but the cervicogenic headaches triggered by the injury. Dr. Agre went on to describe the headaches as "very episodic and intermittent," but completely incapacitating when they occur. (Ex. R-53). Hearsay problems aside, the various documents purportedly signed by Dr. Agre are inconsistent and do not permit a conclusion that the complainant had a permanent impairment.

In addition to the fact that the complainant failed to demonstrate through reliable medical evidence that he suffers from the type of permanent impairment that might constitute a disability, he also failed to establish that any alleged impairment makes achievement unusually difficult or limits his capacity to work. The complainant's permanent work restrictions, assessed in 2001, were to avoid excessive neck extension and overhead work. The complainant also had a lifting restriction of 5-10 pounds continuously, 20-30 pounds frequently, 40-50 pounds occasionally, and nothing greater than 50 pounds, as well as restrictions with regarding to pushing and pulling. The respondent's witnesses testified that the complainant's restrictions were "very mild," and that the complainant was capable of performing his normal, regular duties with only minimal accommodation. The complainant agreed with this assessment. (2)   An impairment that requires little accommodation and does not interfere with the ability to perform the job is not one which can be said to limit the capacity to work.

The complainant's headaches, which were not referenced in the complaint or raised prior to the hearing, were also not shown to be disabling. The complainant's physician described the headaches as being intermittent, and the complainant indicated that they caused him to miss approximately one day of work per month. Even if the complainant had submitted competent medical evidence to establish that he suffers from headaches which constitute an impairment under the Act, the evidence would nonetheless not warrant a conclusion that such headaches limit the capacity to work. The commission has held that missing work occasionally is not sufficient to demonstrate that an impairment limits the capacity to work. See, Wucherpfennig v. Personal Development Center (LIRC, June 29, 2006)(occasional absences and tardiness due to migraine headaches do not impose substantial limitation on ability to work); Smith v. Actuant Corp. (LIRC, July 27, 2007)(testimony that complainant sometimes experienced swelling in his right foot while working which occasionally required him to miss work not sufficient to sustain the complainant's burden to prove a limitation on his capacity to work); Seil v. Dairy Farmers of America, ERD Case No. 200204104 (LIRC Aug. 26, 2005)(requirement that complainant medicate/monitor and restrict herself to full-time work, and her occasional absences due to symptoms of her diabetes, not sufficient to establish disability).

Finally, and again assuming for the sake of argument that the complainant had met his burden of establishing that he has a permanent impairment, he failed to demonstrate that such impairment interferes with life's normal functions. The complainant testified that he has been able to run his own business since the separation from the respondent and has used ladders and operated hazardous equipment without difficulty. The complainant has also continued to engage in fairly rigorous hobbies, such as hunting and scuba diving. There is simply no reason to believe that any impairments the complainant may have had interfered substantially with his ability to function in or outside of the workplace.
 

Did the complainant demonstrate that the respondent perceived him as having an impairment that makes achievement unusually difficult or limits his capacity to work?

In his brief to the commission the complainant contends that, even if it is found that he did not demonstrate he has a disability, he nonetheless met his burden of establishing that the respondent perceived him as having one. The commission disagrees. The respondent was aware that the complainant had permanent work restrictions as a result of a work injury. However, this does not necessarily mean that the respondent perceived the complainant as having a disability within the meaning of the statute. To the contrary, where the parties agreed that the complainant's restrictions interfered only very minimally with his ability to perform the job, any perceived impairment was not one which would have constituted a disability, within the meaning of the Act.

Further, even if there were some basis to find that the respondent perceived the complainant as being disabled at the time it sent him to the independent medical examiner (hereinafter "IME")--a point which will be discussed further below--it is doubtful that it perceived him as disabled thereafter, given the IME's unequivocal conclusion that the complainant had no permanent disability. (3)   Where the respondent credited and relied upon the IME report, there is no reason to believe that, assuming it regarded the complainant as disabled prior to sending him to the IME, it continued to think so thereafter.

In his petition the complainant contends that the limitations recommended by the IME were premised on his narcotic drug use and suggests that the respondent regarded him as being disabled by virtue of his narcotic drug use. This argument also fails. While the complainant may have started taking the narcotics due to an impairment, at the time the complainant was discharged his back and neck pain was mostly resolved, yet he was still taking or had recently taken narcotic painkillers. The IME concluded that the complainant's drug use was far in excess of that needed to address pain related to his injuries, and there is no reason to believe the respondent thought otherwise. The commission also notes that narcotic drug use does not constitute an impairment in its own right, and the complainant neither alleged nor established that he has a substance addiction which might be covered under the statute. See, Bailey v. St. Michael Hospital (LIRC, June 30, 2000).

Finally, the complainant argues that the discharge letter, which indicates he was discharged for "medical reasons," constitutes per se evidence that the respondent regarded him as having an impairment and discharged him for that reason. This argument is unpersuasive. The question of whether the discharge was because of a perceived disability is a question of law, and the respondent's mere use of the term "medical reasons" does not resolve the issue. The evidence indicates that the reason the respondent discharged the complainant was that the IME stated he could no longer safely climb ladders or operate equipment needed to perform the job. The IME characterized his opinion on this matter as a medical one, but in the absence of any evidence that the complainant had an impairment which was causing him to be involved in accidents, the IME's opinion appears to be less a medical judgment than a personal judgment that the complainant used excessive amounts of narcotics and/or was an unsafe, accident prone worker. That the respondent adopted the IME's language and characterized the discharge as being for "medical reasons" does not alter the fact that the discharge was due to reasons not directly related to a medical problem.
 

Assuming the complainant demonstrated that he was perceived as having a disability prior to the issuance of the IME report, did the respondent discriminate against him by placing him on an unpaid leave of absence pending the examination by the IME?

Assuming, for the sake of argument, that the respondent did perceive the complainant, as having a disability prior to the time he saw the IME -- who clearly informed the respondent he did not, in fact, have a disability -- the commission would be nonetheless unpersuaded that the respondent discriminated against the complainant by placing him on an unpaid leave of absence pending the examination by the IME. The respondent contended that the reason it sent the complainant to the IME upon completion of his medical leave of absence was to find out whether the complainant could return to work safely. The respondent was concerned with the frequency of the complainant's accidents and what it regarded as a "pattern of accidents." No other HVAC technician had reported accidents between the years 1999 and 2004, while the complainant had four worker's compensation injuries in that time frame. The respondent was aware that the complainant was using narcotics, as its worker's compensation provider was receiving bills for his prescriptions and a report by Dr. Agre indicated that he and the complainant had entered into a narcotic contract. The respondent noted that the narcotic contract was started in 2000, yet the contract had been broken and the complainant was still using narcotics at the time he sustained a fall at work in December of 2004. Dr. Agre had further indicated that he wanted to get the complainant weaned off of narcotic pain medicine and that he could not state whether the pain medication was making him more prone to injuries. In addition, the respondent had received notification through its worker's compensation provider that the complainant was attending less than 20% of his therapy sessions and that the therapist had concerns about his ability to follow directions. Finally, the respondent explained that the complainant had two separate sets of work restrictions, which were inconsistent. For all of these reasons, the respondent decided that it wanted an independent assessment of what the complainant could and could not do and whether he could safely return to work.

The statute provides that it is not discrimination because of disability to refuse to hire, discharge, or discriminate in terms and conditions of employment against an employee if the disability is reasonably related to the individual's ability to adequately undertake the job-related responsibilities of that individual's employment and that, in evaluating this question the present and future safety of the individual and of his co-Worker's may be considered. The statute requires that the evaluation of whether a worker can work safely is to be made on a case-by-case basis. Wis. Stat. § 111.34(2). Given that the respondent had a reasonable basis for concern that the complainant's disability--assuming the respondent thought he had one--was related to his ability to perform the job safely, it was not unlawful for it to temporarily suspend his employment in order to conduct an individualized evaluation of that question.

Nor was it a discrete act of discrimination, as the complainant seems to suggest, that the leave of absence was without pay. The complainant's leave was a continuation of his medical leave, during which he had been receiving worker's compensation payments. The complainant presented no evidence to suggest that a more favorable leave status was available to him or that employees without disabilities were offered paid leave options in the event of a suspension. Further, while it is true that the three-month delay in setting up the IME examination was somewhat excessive, this was partially due to the complainant's initial unwillingness to sign a release, a matter which delayed the process by several weeks. The complainant did not demonstrate that the respondent failed to act expeditiously in scheduling the IME or that it could have done so sooner. The commission also notes that the complainant never contacted the respondent during his leave to complain about his unpaid status, and apparently made no attempt to speed up the process by which he might return to work.
 

Conclusion

The commission can understand why the complainant believes he was treated unfairly. It agrees with the administrative law judge that the IME report is flawed in that it overstates the number of injuries the complainant sustained and reflects the IME's personal judgments regarding the complainant's ability to be a safe worker, and it agrees with the administrative law judge's assessment that the respondent's blind reliance on that report as a basis to discharge the complainant was not well-considered. The commission is also troubled by the fact that the respondent did not provide a copy of the report to the complainant and did not give him any opportunity to respond or submit a contrary report from his own physician prior to deciding to terminate his employment. However, these concerns aside, the fact remains that the complainant did not meet his initial burden of establishing either that he has a disability or that the respondent perceived him as having a disability under the Act, and the commission sees no basis to find that his discharge was in violation of the Act. Accordingly, the dismissal of the complaint is affirmed.

cc:
Attorney Carol Dittmar
Attorney Anne Bilder



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Footnotes:

(1)( Back ) In his brief the complainant contends that the expense of bringing a doctor to a discrimination hearing is inherently unjust and burdensome to complainants, who are often out of a job and with limited means. The complainant suggests that there should be a standard medical form which can be used for discrimination hearings. However, the commission has held that a complainant can meet his burden through presentation of certified medical documents or documents with "other circumstantial guarantees of trustworthiness." See, Jones v. United Stationers Inc. (LIRC, Jan. 25, 2001).

(2)( Back ) That the complainant could perform his job with only minimal accommodation was also reflected in a "Memorandum of Understanding" signed by both parties and dated October 5, 2001. (Ex. R-21).

(3)( Back ) The IME's report stated, "I see no evidence of a ratable disability of either neck or shoulder," and went on to note that there was no evidence of any worker's compensation injury that has had a lasting effect or created a permanent limitation and no signs of any functional abnormality whatsoever. The IME noted that the complainant was strong, with a normal range of motion, and that, "There is no objective clinical evidence of any disability whatsoever." (Ex. R-48).

 


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