DONALD MILLER, Applicant
SAWYER COUNTY, Employer
STATE OF WISCONSIN DEPT OF
EMPLOYEE TRUST FUNDS, Insurer
In October 2003, the applicant applied for duty disability benefits under Wis. Stat. § 40.65. The Department of Employee Trust Funds initially determined the applicant was not eligible. The applicant appealed, and a hearing was held before an administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development.
On February 29, 2008, the ALJ issued his written findings of fact and order in the applicant's favor. Timely petitions for review were filed. Other procedural facts are set out below.
The commission has considered the petitions and the positions of the parties, consulted with the presiding ALJ concerning witness credibility, and reviewed the evidence submitted to the ALJ. Based on its review, the commission makes the following:
1. Facts.
The applicant was born in 1964. He began working as a sheriff's deputy for the employer in 1994. He initially worked as a jailer for about a year and half before becoming a road or patrol deputy.
In his capacity as a patrol deputy, the applicant dislocated his left shoulder on May 24, 1996, while physically subduing a suspect. Following the injury, he was treated at a hospital and was off work for about six weeks. On June 25, 1996, his treating doctor, John Sauer, M.D., released him to return to work with no restriction as of July 1, 1996.
The applicant returned to work in full duty in July 1996. However, he suffered periodic subluxations in his left shoulder thereafter. He treated with Scott H. Warren, M.D., in 1997 and 1998. A CT scan done in January 1997 showed a tear in the anterior glenoid labrum. During the course of treatment in 1997 and 1998, both Dr. Warren and Dr. Sauer suggested surgery might eventually be required.
In 1999, the applicant was promoted to patrol sergeant. In that capacity, the applicant was in charge of the midnight to 8:00 a.m. shift, supervising three to five other deputies. Also in 1999, Dr. Sauer estimated the applicant's permanent partial disability from the work injury was 8 percent to the body as a whole. Dr. Sauer also noted that the applicant was at risk for recurrent instability and might require future surgery.
The applicant continued to have left shoulder problems periodically thereafter. On May 30, 2002, the applicant saw Joseph Hebl, M.D., who noted that the applicant had had recurrent painful left shoulder subluxations for the past six years. Dr. Hebl's assessment was left shoulder pain, weakness and instability from the May 1996 work injury. He added:
The patient will be allowed to continue at his current job, however, I would recommend he avoid DAAT [Defense and Arrest Tactics] training exercises, as these are likely to put the left shoulder at significant risk for subluxation.
The applicant continued to work at his regular job as a law enforcement officer after this medical appointment. June 2007 transcript, page 75.
On June 10, 2002, the applicant saw an orthopedist, James J. O'Connor, M.D., following a referral by Dr. Hebl. Dr. O'Connor, too, noted multiple episodes of subluxation involving the left shoulder without any frank dislocations. His impression was that the applicant had a single episode of dislocation followed by multiple episodes of subluxation since that time. Dr. O'Connor recommended surgery, noting that without surgery the applicant was likely to continue to have episodes of subluxation.
Between October 18 and 25, 2002, the applicant missed five days of work. He missed one day of work for the flu and the other four days due to shoulder pain. He met with the employer's chief deputy on October 28, 2002, regarding the employer's concerns about sick leave abuse.
On October 30, 2002, the applicant returned to Dr. Hebl, who noted he continued to have left shoulder pain so severe he was at times unable to work. Noting his prior restrictions against doing DAAT training exercises, Dr. Hebl stated:
I would recommend he continue at his current job, but that he be allowed time away from his work should his shoulder pain flare-up to the intolerable level.
On October 31, 2002, while still working on full duty, the applicant was suspended for five days without pay for sick leave abuse, effective November 1, 2002. The employer informed him he was expected back at work on November 8, 2002. See exhibit DD.
On November 7, 2002, before the applicant returned to work, the employer informed him that he was being put on paid administrative suspension effective November 8, 2002. Exhibit 12. On November 25, 2002, he was advised that the employer recommended termination of his employment, and that he would be placed on unpaid administrative leave on November 30, 2002. This action arose on an allegation--separate from the earlier sick leave abuse concern--that the applicant had falsely claimed a work injury in December 2001, or failed to report the injury within 72 hours.
Dr. O'Connor performed a surgery, an arthroscopic Bankart reconstruction, to the applicant's injured left shoulder on March 11, 2003.
In April 2003, an arbitration hearing was held regarding the applicant's employment status. On September 16, 2003, the arbitrator decided the employer had just cause to terminate the applicant's employment, citing unrebutted evidence of lack of candor or misrepresentations concerning the December 21, 2001 injury. Exhibit 2. A "Notification of Officer Status Change" completed by the employer on September 30, 2003, reported that the applicant had been discharged effective November 30, 2002. Exhibit JJ.
On October 1, 2003, Dr. Hebl noted it would be another three to four months before the applicant reached an end of healing, and felt he could not return to work because of the requirements of a normally functioning left shoulder. Dr. O'Connor agreed the applicant could not return to police work in a report dated October 27, 2003. On January 21, 2004, Dr. Hebl declared an end of healing and rated permanent partial disability at 7 percent for ongoing pain and loss of range of motion following his surgery. He set permanent restrictions against overhead reaching left arm, or reaching forward or "out" from the body to do any lifting.
2. Posture.
Duty disability claims are governed by Wis. Stat. § 40.65 which provides:
40.65(4) A protective occupation participant is entitled to a duty disability benefit if:
(a) The employee is injured while performing his or her duty or contracts a disease due to his or her occupation;
(b) The disability is likely to be permanent; and
(c) 1. The disability causes the employee to retire from his or her job;
2. The employee's pay or position is reduced or he or she is assigned to light duty; or
3. The employee's promotional opportunities within the service are adversely affected if state or local employer rules, ordinances, policies or written agreements specifically prohibit promotion because of the disability.
In order to claim duty disability benefits, a protective occupation participant must submit to the Department of Employee Trust Funds (DETF) an application that includes written certifications of the participant's disability from at least two physicians (one of whom must be approved or appointed by DETF). Wis. Stat. 40.65(2)(b)2. Additionally, the protective occupation participant must also submit a statement from his or her employer that the injury or disease leading to the disability is duty-related. Wis. Stat. 40.65(2)(b)2. In practice, this allows the employer to put into dispute the questions not only of whether the disability was incurred in the performance of duty, but also whether the disability is severe enough to cause retirement or a reduction in pay or position or to adversely affect promotional opportunities.(1) See exhibit KK.
In this case, the applicant filed his application for duty disability benefits with DETF on or about October 1, 2003. Exhibit 7. In compliance with Wis. Stat. § 40.65(2)(b)2, he submitted Duty Disability Medical Reports from two doctors, Dr. Hebl (his treating doctor) and Lynn E. Quennemoen, M.D. (a doctor specified by DETF). Both doctors opined that the applicant has a permanent impairment to his left shoulder directly caused by his July 24, 1996 duty-related injury while trying to restrain a suspect. Both doctors also set permanent medical restrictions on the applicant's employment due to his disability.
Specifically, Dr. Hebl, in a report dated October 1, 2003, sets work restrictions against:
Dr. Quennemoen, in a report dated October 21, 2003, restricted the applicant to:
While the Duty Disability Medical Reports form specifically asks for the date upon which the restrictions first became necessary, neither doctor specified a date.
The employer, Sawyer County, refused to provide a statement that the injury or disease leading to the disability was duty related, as required under Wis. Stat. § 40.65(2)(b)2. The employer explained that the applicant was not under any medical restrictions when his employment was terminated for cause, and that his injury did not have any impact on his pay or position. See exhibit 3, Employer's Certification-Duty Disability form dated October 15, 2003. On November 8, 2003, DETF denied the applicant's claim for duty disability because his employer did not provide the required certificate. See letters from Diane Poole and Deb Roemer at exhibit WC 2.
The applicant then appealed to the Department of Workforce Development (DWD) resulting in hearings before an ALJ from that department's Worker's Compensation Division. See Wis. Stat. § 40.65(2)(b)3 and 4. Prior to the second day of hearing, the presiding ALJ noted that there was no dispute that statutory prerequisites under Wis. Stat. § 40.65(4)(intro.), (a) and (b)--that the applicant "protective occupation participant" whose injury occurred in the performance of duty and resulted in a disability that likely was to be permanent--had been met. However, the ALJ went on to indicate that all three of the additional (but individually disjunctive) eligibility criteria of Wis. Stat. § 40.65(4)(c)1 to 3--that the disability caused retirement, caused pay or position reduction, or adversely-affected promotional opportunities--were at issue. July 24, 2006 transcript, pages 4 and 79 to 81.
The applicant's main contentions before the ALJ were that, due to his duty-related shoulder injury, he suffered a reduction in pay and his promotional opportunities were adversely affected. As noted above, the ALJ decided the claim in the applicant's favor, finding that the applicant met both of those criteria. The employer and DETF have petitioned the commission for review. See Wis. Stat. § 40.65(2)(b)4 and 102.18(3).
On appeal, the employer argues that the applicant did not meet either the pay reduction or the adversely-affected promotional opportunity eligibility criterion. It also argues that the applicant is not eligible for duty disability because he was not in the service of the employer (due to his administrative suspension without pay and discharge) on his qualifying date.
DETF, too, contends that the applicant did not meet the pay reduction or the adversely-affected promotional opportunity eligibility criterion. However, DETF further argues that the adversely-affected promotional opportunity eligibility criterion was not properly before the presiding ALJ--and that the ALJ should not have decided the issue--because the applicant did not mark that box in his October 1, 2003 duty disability application form required by DETF rule.
3. Discussion
a. WC Division jurisdiction/competency/due process
As DETF notes, the applicant did not expressly allege in his application that his duty-related disability adversely affected his promotional opportunities; instead, he alleged only a reduction in pay. See exhibit 7. DETF claims that the DWD administrative law judge thus lacked subject matter jurisdiction to consider the promotion issue. DETF argues that in effect the ALJ improperly issued a de novo decision on the promotion opportunities criterion without allowing DETF to consider the issue first. The commission cannot sustain this argument.
The authority of DETF to decide duty disability cases and the authority of DWD to hear appeals of duty disability cases are included within Wis. Stat. § 40.65(2)(b)2 to 4 which provide:
40.65(2)(b)...
2. An applicant for benefits under this section shall submit or have submitted to the department an application that includes written certification of the applicant's disability under sub. (4) by at least 2 physicians, as defined in s. 448.01 (5), who practice in this state and one of whom is approved or appointed by the department, and a statement from the applicant's employer that the injury or disease leading to the disability was duty-related.
3. The department [of employee trust funds] shall determine whether or not the applicant is eligible for benefits under this section on the basis of the evidence in subd. 2. An applicant may appeal a determination under this subdivision to the department of workforce development.
4. In hearing an appeal under subd. 3., the department of workforce development shall follow the procedures under ss. 102.16 to 102.26
The commission recognizes that the applicant did not assert that his disability affected his promotional opportunities in his duty disability application. See exhibit 7. However, the applicable statute, Wis. Stat. § 40.65(2)(b)2, only requires the applicant to submit the doctors' certification and the employer's statement. The statutes also provide that DETF is to base its determination on those documents which are part of the record in this case. See exhibits A and 3. Nothing in the statutes limits the jurisdiction and competency of DWD and its ALJ--in hearing and deciding an appeal under Wis. Stat. § 40.65--to the specific eligibility criteria under Wis. Stat. § 40.65(4)(c) identified by the applicant prior to hearing.
Any requirement that the applicant identify one or more specific eligibility criterion (retirement, pay reduction, or adversely-affected promotional opportunity) under Wis. Stat. § 40.65(4)(c) arises from DETF rule establishing the form for the duty disability application, Wis. Admin. Code § ETF 52.06. In effect, DETF's argument imports technical pleading rules to the completion, presumably by laypersons in most instances, of what is essentially an application for employment benefits. However, the rule itself does not expressly state that only those criteria that are expressly identified in the application may be considered by DWD on appeal, or otherwise state any consequence for failing to specify the criteria.(2)
Beyond that, the commission is not persuaded that DETF may adopt rules that limit DWD's statutory jurisdiction or competency to hear issues arising at a hearing on appeal in a duty disability case. Neither DETF's authority to promulgate rules under Wis. Stat. § 40.03(2)(i) for the efficient administration of the public employee trust fund, nor under Wis. Stat. § 227.11(2)(a) to interpret the provisions of the duty disability statute, may be stretched so far. And while Wisconsin Stat. § 227.11(2)(b) permits an agency to prescribe by rule the forms and procedures that the agency considers necessary to effectuate the purposes of a statute, it expressly "does not authorize the imposition of a substantive requirement in connection with a form or procedure."
Further, Wis. Stat. § 40.65(2)(b)3 instructs DETF to make "its determination on the basis of the evidence in subd. 2," a reference to the physicians' certifications and the employer's statement. The statute does not require DETF to weigh the reasons or the merits of an employer's refusal to provide a statement of eligibility or to analyze the eligibility criteria under Wis. Stat. § 40.65(4)(c). Nor, based on letters from Diane Poole and Deb Roemer at exhibit WC 2, does it appear that DETF undertakes such an analysis in practice.
Ms. Roemer's letter informed the applicant that the department determined the applicant was not eligible because his employer, Sawyer County, did not submit the required statement or certification. Ms. Poole indicated that that was the only reason DETF denied the claim, and stated that the employer's refusal to provide the required statement or certification could have been for any number of reasons, including the employer's belief the applicant's "disability, if any, was not severe enough to meet the standards of Wis. Stat. § 40.65(4)(c)..." Ms. Poole's letter adds that DETF had no information to contribute at a hearing relevant to reasons for the employer's refusal to provide the required statement or certification.
In other words, DETF's determination was based on the fact that the agency did not receive the proper forms to support the claim for duty disability, not on an adjudication of a dispute between the applicant and his employer about the application of the eligibility criteria. Indeed, it is reasonable to conclude from Ms. Poole's letter that DETF cared neither what eligibility criteria the applicant identified in his application nor why Sawyer County did not certify his claim. The commission therefore cannot conclude that a DWD administrative law judge somehow usurps DETF authority if he or she bases a decision--after a full evidentiary hearing under the terms of Wis. Stat. § 102.16 et seq.--on an eligibility criterion not identified by the participant in his application filed before the DETF determination. Nor can it conclude that DWD lacked the jurisdiction or competency to do so.
The commission also appreciates that, by statute, DETF is a party on appeal to DWD. See Wis. Stat. § 40.65(2)(b)5. While DETF does not directly raise notice or due process concerns in its brief, they merit discussion. The court of appeals has noted that due process in quasi-judicial administrative hearings turns on the presence or absence of "fair play" the elements of which are:
(1) the right to reasonably know the charges or claims;
(2) the right to meet such charges or claims with competent evidence; and
(3) the right to be heard by counsel upon the probative force of the evidence presented by both sides of the applicable law.
Wright v. LIRC, 210 Wis. 2d 289, 296 (Ct. App. 1997). See also Theodore Fleisner, Inc. v. ILHR Department, 65 Wis. 2d 317, 326 (1974); Waste Management Incorporated v. LIRC, 2008 WI App 50, 308 Wis.2d 763. Noting that fundamental requirements of procedural due process are notice and an opportunity to be heard, the court has further held that, to be adequate, notice:
Must be reasonably calculated to inform the person of the pending proceeding and to afford the person an opportunity to object and defend his or her rights.
Zimbrick v. LIRC, 2000 WI App 106, 10, 235 Wis. 2d 132.
In this case, the commission concludes that DETF was given sufficient notice that the applicant's duty disability claim was at issue before the ALJ by virtue of the hearing notices sent by the Worker's Compensation Division. As noted above, in response to the hearing notices, DETF bureau director Diane Poole wrote to the ALJ on April 20, 2007(3) informing him that DETF denied the applicant's claim solely because the employer (Sawyer County) refused to permit the required affirmative statement. WC Exhibit 2. Any due process or competency arguments(4) arising from the applicant's failure to identify in his application his specific grounds under Wis. Stat. § 40.65(4)(c) and Wis. Admin. Code § ETF 52.07 were effectively waived by that letter.
In sum, DWD's jurisdiction or competency to hear and decide appeals under Wis. Stat. § 40.65 is not restricted when a protective occupation participant does not identify with particularity the specific criteria (retirement, pay reduction, or adversely-affected promotional opportunity) under Wis. Stat. § 40.65(4)(c) on which his or her duty disability claim may be based. Thus, the ALJ properly exercised his discretion in addressing the adversely-affected promotional opportunity criterion--which was fully tried over several days of hearing--in this case. Accordingly, the commission shall review his decision on that issue as well as the reduction in pay issue.
b. Reduction in pay.
The applicant contends that he satisfied the reduction in pay criterion under Wis. Stat. § 40.65(4)(c)2 based on his sick leave use in October 2002 and his ensuing five day suspension without pay beginning on November 1, 2002. Like the ALJ, the commission concludes that the applicant used some of the sick time at issue because his duty related shoulder injury bothered him. However, the commission cannot conclude that the applicant therefore suffered a pay reduction due to his duty-related disability within the meaning of Wis. Stat. § 40.65(4)(c)2.
Wisconsin Admin. Code § ETF 52.07(3)(c) interprets Wis. Stat. § 40.65(4)(c)2 to require a reduction in base pay, and states further that reduction of other collateral payments cannot be used to satisfy the statutory criterion. While the applicant lost wages while he was on unpaid suspension, his base pay was not reduced. Nor did his sick leave use or the employer's failure to credit his sick leave account constitute a reduction in base pay.(5) The commission must conclude that Wisconsin Admin. Code § ETF 52.07(3)(c) would not have specified "a reduction in base pay" if any wage loss at all qualified under the rule.
Further, Wis. Admin. Code § ETF 52.07(4) provides:
Wis. Admin. Code § ETF 52.07 (4) Temporary actions non-qualifying. Assignments to light duty, or reductions in pay or position or promotional opportunities, which are merely temporary in nature, such as actions taken to allow recovery, are not consistent with a permanent disability and do not qualify a participant for duty disability benefits.
Both the loss of pay during the suspension and the use of sick leave were--at most--temporary reductions in pay. They thus do not qualify the applicant for duty disability benefits under Wis. Admin. Code § 52.07(4).
c. Adversely-affected promotional opportunity
The applicant also contends he satisfied the adversely-affected promotional opportunity criterion under Wis. Stat. § 40.65(4)(c)3. That section provides that an otherwise qualified protective occupation participant may be entitled to duty disability if his or her "promotional opportunities within the service are adversely affected if state or local employer rules, ordinances, policies or written agreements specifically prohibit promotion because of the disability." Wisconsin Stat. § 40.65(4)(c)3 is perhaps awkwardly written, but the DETF has promulgated a rule interpreting the provision as follows:
Wis. Admin. Code § ETF 52.07 A participant is disabled within the meaning of s. 40.65 (4), Stats., if all of the following apply:
...
(3) SEVERITY. The disability is so severe that it causes one or more of the following:
...
(e) The employer prohibits the applicant from promotion for which the applicant is otherwise fully qualified, solely on the basis of the applicant's disability and under the express terms of a valid state or local employer rule, ordinance, policy, or written agreement which is not superseded by state or federal law.
In this case, the applicant does not allege that a rule, ordinance, or written agreement limits his promotional opportunities due to his duty related shoulder disability. Instead, he asserts that:
the employer had a de facto policy of requiring the applicant to undergo DAAT training annually;
he could not undergo the DAAT training due to his duty disability after one of his doctors, Dr. Hebl, instructed him to avoid it in May 2002; and
since he could no longer take the DAAT training his promotional opportunities within the law enforcement service for Sawyer County Sheriff's Department were adversely affected by the employer's unwritten policy requiring DAAT training for him every year.
However, DAAT training is not required by the State or any other authority to work as a deputy sheriff. Rather, it appears to be a training segment or module that a law enforcement officer may take as part of the 24-hour recertification training required of law enforcement officers annually by state law. Thus even if the applicant could not participate in the DAAT training after May 2002, he still could satisfy the required 24-hour recertification training.
After reviewing the record, the commission is not persuaded that the applicant has shown that the employer had policy of requiring him to undergo DAAT, as opposed to simply a practice. The word "policy" should be read in context, and while the ALJ reasonably concluded the policy need not be written,(6) a "policy" under Wis. § 40.65(4)(c)3 should probably be interpreted as something approaching the formality and authority of a rule, ordinance or written agreement.
However, even if the employer had a "policy" regarding DAAT training, it would have been a policy of requiring the applicant participate in the training, not a policy that "specifically prohibits promotion because of disability" due to inability to take the DAAT retraining. The employer's sheriff, James A. Meier, for example, has been with the employer for 27 years, and was a sheriff's department investigator in 2002 before becoming sheriff. However, Mr. Meier has never taken DAAT training. February 2008 transcript, page 62.
Aside from the DAAT training claim, the applicant has also identified two jobs with the employer, those of day sergeant and chief deputy, which would be promotions, but from which he says he is barred by his disability. Indeed, Sheriff Meier testified that the applicant could do neither his former job of patrol deputy nor the job of desk sergeant within the restrictions set by the doctors in October 2003. Sheriff Meier also acknowledged that the job of deputy chief required restraining suspects in an emergency, which the applicant could not do under the doctor's restrictions. Transcript, page 56 et seq.
However, as noted above, Wisconsin Admin. Code § ETF 52.07(3)(e) interprets the promotional opportunities criterion under Wis. Stat. § 40.65(4)(c)3 to apply to promotion for which the protective occupation participant "is otherwise fully qualified." Sheriff Meier testified that the applicant was not qualified for the desk sergeant or chief deputy jobs because of disciplinary record which included his termination for cause. Transcript, page 67. Drs. Hebl and Quennemoen did not impose work restrictions that could be viewed as affecting the employee's promotional ability until October 2003. By this point, the employer's termination of the applicant's employment for cause had been approved by the arbitrator in September 2003.
In the absence of work restrictions before October 2003, the commission sees no basis for concluding the applicant's promotional opportunities were adversely affected by his injury. The May 2002 restriction set by Dr. Hebl only limited him from the DAAT training exercise, but otherwise permitted full duty. Dr. Hebl's October 30, 2002 note likewise permitted full duty work. When the applicant went on unpaid leave in November 2002, he was not medically restricted from full duty due to his injury. Nor does the record permit the inference that the fact of the injury or the functional disability rating--as distinguished from the subsequently imposed work restrictions--adversely affected the applicant's promotional opportunities. Indeed, the applicant was promoted to patrol sergeant in 1999, the same year that Dr. Sauer estimated the applicant's permanent partial disability from the May 1996 injury at 8 percent to the body as a whole.
Beyond that, again, the applicant has not shown a state or local employer rule, ordinance, policy or written agreement that specifically prohibits promotion because of the disability. DETF's counsel states in his brief that to his knowledge the promotion issue has never come up in a duty disability claim since Wis. Stat. § 40.65(4)(c)3 was amended to add the language "if state or local employer rules, ordinances, policies or written agreements specifically prohibit promotion because of the disability." The commission does note a case decided on the law in effect before the statutory change, Jessie L. Polk v. HSSV Mendota, WC claim no. 83-33171, 1990 WI Wrk. Comp. LEXIS 376 (LIRC, May 9, 1990), which involved an officer at a state mental health facility whose cervical injury made patient contact hazardous. In affirming a duty disability award in that case, the commission wrote:
Respondent also asserted that the applicant's promotional opportunities were not adversely affected, but conceded that many officer positions involve patient/prisoner contact. By virtue of the permanent disability applicant sustained on July 24, 1983, he was thereafter medically limited to work which did not involve patient contact. The reasonable inference drawn from this fact was that the applicant's limited physical abilities would adversely affect his promotional opportunities, and the respondent did not submit credible evidence refuting this inference.
That same reasoning might apply here, had Wis. Stat. § 40.65(3)(c)3 not been amended to add the requirement of "state or local employer rules, ordinances, policies, or written agreement." If the language added by amendment to Wis. Stat. § 40.65(3)(c)3--as interpreted by DETF rule--is to mean anything, a protective occupation service participant must do more than show facts justifying an inference his or her limited physical abilities adversely affect his promotional opportunities.
d. Cause of retirement.
During the course of the hearing before the DWD administrative law judge, the applicant asserted that his disability caused him to retire from his job. July 2006 transcript, pages 4 (line 24 and 25) and 81 (lines 19 to 21). Although the applicant no longer argues on appeal that the disability caused him to retire from his job, the commission determines for the sake of completeness that it did not. The applicant did not retire from his job, but was discharged. Further, the applicant's disability from the May 24, 1996 duty-related injury was not reason for his discharge.
NOW, THEREFORE, the Labor and Industry Review Commission makes this
The findings and order of the administrative law judge are reversed. The applicant is not eligible for benefits under Wis. Stat. § 40.65 and his duty disability application is denied.
Dated and mailed October 9, 2008
millerd . wrr : 101 : 1
ND 8.18, 40.65/
James T. Flynn, Chairperson
/s/ Robert Glaser, Commissioner
/s/ Ann L. Crump, Commissioner
The commission discussed witness credibility with the presiding ALJ. As the ALJ indicated in a memorandum(7) to his decision, he regarded the testimony of both the applicant and Sheriff Miller to be credible, noting that Mr. Miller was not sheriff at the time the disciplinary actions against the applicant were taken. The ALJ also particularly emphasized his view that the evidence involving the DAAT training established that the employer had a policy that prohibited the applicant's employment due to his disability.
The commission, like the ALJ, credits the applicant's testimony that he took the DAAT training each year, and that he considered the training very important. The commission is also willing to infer that the employer regarded the DAAT training as important as well. However, as explained above, the commission concluded the applicant nonetheless did not prove that the employer had a policy prohibiting the promotion of deputy sheriffs generally--or the applicant specifically--when a disability prevents participation in the DAAT training.
The commission likewise credits the applicant's testimony that at least some of the sick leave he took in late 2002 was due to his left shoulder injury. However, the commission reached a different legal conclusion as to whether the applicant's sick leave use, or his unpaid suspension in the first week of November 2002, constituted a qualifying reduction in pay.
cc:
Attorney David M. Erspamer
Attorney Melissa A. Kirschner
Attorney Robert F. Weber
Appealed to Circuit Court. Affirmed July 15. 2009. Appealed to Court of Appeals. Affirmed October 13, 2010.
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