BETTY ALVEY, Complainant


ERD Case No. 8951036

An Administrative Law Judge for the Equal Rights Division issued a decision in this matter on July 25, 1991 which dismissed the complaint on the grounds that the exclusive remedy of the Complainant on the claim made was under the Worker's Compensation Act. Complainant filed a timely petition for commission review. Both parties have filed written argument with the Commission.

Based on a review of the entire record, the Commission concludes, for the reasons set forth in the Memorandum Opinion attached hereto, that the exclusive remedy of the Complainant on the claim made is under the Worker's Compensation Act, and it therefore makes the following:


That the complaint in this matter be dismissed.

Dated and mailed November 27, 1991

/s/ Pamela I. Anderson, Chairman

/s/ Richard T. Kreul, Commissioner

/s/ James R. Meier, Commissioner


In Schachtner v. DILHR, 114 Wis. 2d 1, 422 N.W.2d 906 (Ct. App. 1988), the court of appeals held that the Equal Rights Division had no jurisdiction over a complaint of handicap discrimination filed by a person who was not rehired after being off work due to a work-related injury, because the exclusive remedy for such wrong was that provided by sec. 102.35(3), Stats., which prohibits the unreasonable refusal to rehire after a work-related injury. The issue presented in this case is whether Schachtner requires dismissal of the complaint of Betty Alvey.

The ALJ, in deciding this issue, acted in response to a "Motion for Summary Judgment" filed by Respondent, and he appears to have relied at least in part on representations as to the facts made by Respondent in connection with this motion.. The Commission approaches the case differently. There is no authority in either the Wisconsin Fair Employment Act or the Equal Rights Division's administrative rules (Wisconsin Administrative Code Chapter Ind 88) for Administrative Law Judges to entertain "motions for summary judgment" of the kind that are authorized, in actions and proceedings in court, by sec. 802.08, Stats. That section is not applicable to administrative hearings. Authority for such a substantial and significant procedure also cannot somehow be considered "implicit" in the otherwise fairly comprehensive procedural scheme set out by sec. 111.39, Stats. and Ind 88. Further, nothing in the Administrative Procedure Act, Chapter 227, Stats., provides for a "summary judgment" procedure. The Attorney General has rendered an opinion which casts doubt on the idea that a "summary judgment" procedure could somehow be considered implicit in Chapter 227. 68 Op. Att'y Gen. 31, 34 (1979). Certainly, an ALJ may, in appropriate circumstances, dismiss a complaint prior to hearing when it appears that even if what is claimed by complainant is true, there would be no violation of the Fair Employment Act. However, making such an analysis involves simply looking at what the complainant asserts he or she will prove. There is no procedure whereby a respondent, merely by filing a motion and supporting affidavit which disputes material facts alleged by complainant, can somehow force the complainant to file responsive affidavits or risk having the case decided on the version of the facts advanced by the respondent. The respondent may file a motion raising an issue as to the adequacy of the complainant's claim, but in evaluating such an issue the ALJ should look simply to what the complaint alleges, and to any other assertions of the complainant which provide an indication of the nature of the claim. Thus, in this case the Commission has looked only at a number of documents in the record which reflect the nature of the Complainant's claim. (1)

Insofar as the assertions of the Complainant are material to the issue of worker's compensation exclusivity, they are as follows:

Complainant first suffered an injury to her back at home when she bent over to lift a pillow. This occurred in dither December 1983 or December 1984. She was treated by a physician. He found that she had scoliosis. She was off work for five days. She then returned to work and "was cured." On April 12, 1985 she suffered an injury to her back while working third shift in Department 303 at Respondent's 124th Street plant as a floor inspector. In this incident, she tripped over a low guardrail and fell. She was treated by Dr. Azcueta. This injury was not reported to Worker's Compensation. She was off work for a week and then returned to work, "cured." Then on April 25, 1986 she again injured her back at work while working in Department 88 at Respondent's 32nd Street plant. She initially treated with a physician, Dr. Mammeral, and then with a chiropractor, Taylor. This incident was reported to Worker's Compensation. She was off for several weeks and then returned to work. On June 3, 1986, Taylor imposed restrictions on Complainant to the effect that she not lift over 25 lbs. and that she not engage in repetitive lifting of over 5 lbs. She communicated these restrictions to the employer. She was apparently placed on leave of absence as a result, but subsequently returned to employment. On December 25, 1986 she again injured her back at work, while employed in Respondent's Department 966. A permanent partial disability of 2% was thereafter determined. Then, in March 1989, Complainant was fired based on allegations that she had engaged in certain misconduct at work. She asserts that she was fired because of her handicap, a bad back.

While Complainant was not literally denied rehire following an absence due to a work-related injury, this is irrelevant to the potential applicability of sec. 102.35(3), Stats., since it has been recognized that that statutory section can apply in cases in which an employe is returned to employment status following a work-related injury and is thereafter terminated. West Allis School District v. DILHR, 116 Wis. 2d 410, 342 N.W.2d 415 (1984), Dielectric Corp. v. LIRC, 111 Wis. 2d 270, 330 N.W.2d 606 (Ct. App. 1983). Reemployment following a work-related injury must be undertaken with the good faith intent to retain the employe, and a subsequent discharge of the employe calls into question whether the rehiring was in fact undertaken in good faith. West Allis, 116 Wis. 2d at 424-25. The commission is not prepared to hold, that the mere fact that the termination occurs more than two years following the reemployment precludes as a matter of law the applicability of sec. 102.35(3), Stats. The situation is one in which a claim of unreasonable refusal to rehire under that statute is legally cognizable, and therefore the principle of Schachtner is potentially applicable.

Complainant's theory here is that Schachtner is not applicable because the original back injury, which occurred at home, was not work-related. Norris v. DILHR, 155 Wis. 2d 237, 455 N.W.2d 665 (Ct. App. 1990), established that sec. 102.35(3), Stats. does not oust Equal Rights Division jurisdiction over complaints of handicap discrimination where the handicap in question is not related to a work injury. Complainant argues, in effect, that the subsequent events at work were irrelevant because they were merely "aggravations" of the original, non-work injury.

However, under Lewellyn v. DILHR, 38 Wis. 2d 43, 155 N.W.2d 678 (1968), there is a compensable injury subject to the Worker's Compensation Act whenever there is an aggravation beyond normal progression of a pre-existing degenerative condition, even though there may have been a pre-existing non-industrial condition which made the employe predisposed to the aggravation. The injuries which Complainant asserts she suffered because of work-related accidents in April 1985, April 1986, and December 1986, were all subject to the Worker's Compensation Act. That a permanent partial disability of 2% was determined following the last incident is significant. The "bad back" from which Complainant asserts she suffered at the point of her discharge and on the basis of which she alleges she was discharged, resulted at least in part (according to her claims) from an industrial accident subject to the Worker's Compensation Act.

The situation presented in Norris, supra, is distinguishable. In that case, the complainant had two identifiably separate handicaps at the same time: a back condition related to a work injury, and mental retardation which was not work-related. The court held that the rule of Schachtner did not bar a claim that the employe was discriminated against because of his mental retardation. Here, however, there are not two identifiable and separate handicaps, one of which is work-related and one of which is not. There is only one alleged handicap: the "bad back." The state of Complainant's back is, according to her own assertions, a product of work injuries. The existence of a pre-existing non-industrial back problem is not relevant to Worker's Compensation liability. For these reasons, the Commission concludes that the entire claim of handicap discrimination which Complainant seeks to present to the Equal Rights Division is in fact a claim of a wrong which is cognizable as an alleged unreasonable refusal to rehire under sec. 102.35(3), Stats., and for this reason, the Equal Rights Division has no jurisdiction to proceed in the matter.


Note: The Court of Appeals decision on which this decision rested, Schachtner v. DILHR, 144 Wis. 2d 1, 422 N.W.2d 906 (Ct. App. 1988),   was overruled by Byers v. LIRC, 208 Wis. 2d 388, 561 N.W.2d 678 (1997).

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(1)( Back ) These consist of a letter from Complainant to the ERD Investigator (Investigator's Exh. H), a report Complainant filed with the Office of Federal Contract Compliance Programs (Investigation Exh. K), Complainant's response to the Motion for Summary Judgment, Complainant's affidavit in support of that response, an August 13, 1991 letter from Complainant to LIRC, Complainant's affidavit in support of her "Motion to Reopen," an October 28, 1991 letter from Complainant to LIRC, and Complainant's response to Respondent's response to Complainant's Motion to Reopen.


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