Wis.LIRC ER Decision: Reiter, Michael - November 30, 2007 - Disability discrimination - fact that complainant's shoulder condition could be corrected by surgery does not mean it is not a disability - for other reasons, though, complainant's "shoulder strain" injury found not to be permanent condition and thus, disability not established

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

MICHAEL REITER, Complainant

WAUKESHA ENGINE DIVISION, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 200404605, EEOC Case No. 26G-2005-00320C

An administrative law judge 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 administrative law judge. Based on its review, the commission agrees with the decision of the administrative law judge, and it adopts the findings and conclusion in that decision as its own, except that it makes the following modification:

The third through sixth sentences in paragraph 7 of the administrative law judge's FINDINGS OF FACT are deleted.

DECISION

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

Dated and mailed November 30, 2007
reitemi . rmd : 164 : 9

/s/ James T. Flynn, Chairman

/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 statute is intended only to cover permanent impairments, and not injuries of a transitory nature. See, Erickson v. Quad Graphics, Inc. (LIRC, May 25, 2004); aff'd sub. nom Erickson v. LIRC, 287 Wis. 2d 204, 704 N.W. 2d 398 (Ct. App. Wis. 2005).

In the petition for commission review the complainant challenges the administrative law judge's finding that he is not disabled because he could correct his shoulder problem with surgery. The complainant contends that there is no Wisconsin authority for this proposition and, further, that the evidence did not establish his shoulder condition could be fixed. The commission agrees. The administrative law judge did not provide any authority in support of the proposition that a condition that can be corrected through surgery does not constitute a permanent impairment under the Act, and the commission is unaware of any precedent for such a conclusion. The commission has previously rejected an argument that a condition whose symptoms could be controlled by medication could not constitute a disability. Salzer v. Briggs & Stratton (LIRC, July 26, 1996). There are many types of impairments for which treatments are available, and the mere fact that a potential treatment exists is not reason enough to conclude that the impairment is only a temporary one, thus denying the individual the coverage of the Act. As the New York Court of Appeals noted when addressing a similar argument raised under the New York Human Rights Law, "[T]he statute protects all persons with disabilities and not just those with hopeless conditions." SDHR v. Xerox Corp., 1 AD Cases 750 (N.Y. Ct. App. 1985). The same rationale applies equally well here.

The commission also agrees with the complainant's secondary argument, that the evidence did not establish his shoulder condition could be fixed. At the hearing the complainant testified that his doctor told him surgery would be the only chance he would be able to "probably" perform the cam and gear job, but that there was no guarantee. The complainant further testified that his doctor stated there was a possibility he could be paralyzed or die with the surgery. He testified that his doctor had counseled he would eventually have to have the surgery, but the complainant felt if he could live with the condition he would do so, because there was no guarantee. To find that the complainant's condition is not permanent because there is a surgery available that could correct it is not only wrong as a matter of law, but unreasonable where the only evidence in the record on this point indicates that the complainant was given no assurances the surgery would work and was told that he could be made worse off by having the surgery.

However, while the commission agrees with the complainant that the possibility of a surgical repair does not foreclose a finding that he has a disability, there are other reasons to conclude that the complainant failed to establish he has a permanent impairment. The complainant's impairment in this case resulted from a work-related injury. An injury, by its very nature, is generally regarded as a temporary condition that will heal over time, and there is no reason to assume that the complainant's shoulder injury is more serious than a typical shoulder injury which would be expected to heal. The complainant's medical records, in which his doctor describes the condition only as a "shoulder strain," contain nothing to suggest that the condition is likely to be permanent. To the contrary, the complainant testified that his doctor told him if he resumed performing all of his former job duties he would risk permanent damage, suggesting that the injury was not thought to be a permanent one. In addition, the parties stipulated that an independent medical examiner decided the complainant could resume performing his job without restrictions in April of 2003. Thus, to the extent the complainant is arguing that his condition was permanent -- and it is not entirely clear whether he is making such an argument -- the permanency of the shoulder injury is in dispute. For the foregoing reasons, the commission concludes that, irrespective of the availability of a surgical correction, the complainant did not meet his burden of demonstrating that he has a permanent impairment.

Because the commission has concluded that the complainant failed to establish he is an individual with a disability under the Act, it considers it unnecessary to specifically address the complainant's arguments with respect to timeliness, except to note that it agrees with the conclusions reached by the administrative law judge on those points. The administrative law judge's decision has been modified to delete those factual findings which address the complainant's failure to undergo shoulder surgery and, as modified, is affirmed.

cc:
Attorney Julie H. Powell
Attorney Craig R. Thorstenson

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