DIANE M. BURGE-MILNER, Complainant

DEPT OF VETERANS AFFAIRS

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 makes the following:

1. Beginning some time in 2002, complainant Diane M. Burge-Milner ("Burge-Milner") worked for respondent Department of Veterans Affairs ("DVA") as a Certified Nurse Assistant ("CNA"). Burge-Milner worked at the Veterans Home in Union Grove ("the Home").

2. On May 2, 2008, Burge-Milner saw Dr. Stephenson, a podiatrist, for treatment of a bunion on her left foot. A plan was developed to have Burge-Milner undergo a bunionectomy. On May 7 Burge-Milner saw Dr. Stephenson for a pre-operative visit, and Dr. Stephenson gave her a note for her to give to DVA indicating that it was expected she would have surgery on May 9 and be off work for 6 weeks, or until June 20.

3. Burge-Milner had the bunionectomy on May 9 as planned. At this time Burge-Milner also completed an application for FMLA leave, stating the same anticipated dates for leave (i.e., an expected return to work of June 20). An FMLA "Certification by Physician" completed by Dr. Stephenson on May 12, 2008 stated that the probable duration of Burge-Milner's "serious health condition" was 6 weeks.

4. Initially, Burge-Milner's recovery proceeded as had been expected. Then in a follow-up visit with Dr. Stephenson on June 16, Burge-Milner said that she was having some pain and swelling in her left foot. Dr. Stephenson gave her a note extending the date of her expected return to work until July 1.

5. Burge-Milner arranged to have Dr. Stephenson's office send the note to DVA by facsimile transmission. They followed this practice on most subsequent occasions when Stephenson gave Burge-Milner notes extending her return to work date.

6. In a follow-up on June 27, Burge-Milner told Dr. Stephenson she could not get a shoe on her left foot and didn't think she was ready to return to work. Dr. Stephenson gave her a note extending her expected return to work date to July 10.

7. In her clinic chart notes from a follow-up visit on July 9, Dr. Stephenson wrote that she would extend Burge-Milner's return to work date to July 21. In a follow-up on July 14, she gave Burge-Milner a note stating that her return to work date was extended to August 4 and that Burge-Milner's anticipated return to work on August 4 would be "with no restrictions."

8. It is inferred that, at least as of July 2008, Dr. Stephenson anticipated that Burge-Milner would eventually recover from the effects of the bunionectomy, with no permanent restrictions.

9. In a follow-up on August 1, Burge-Milner continued to have some pain and swelling. At that time, Dr. Stephenson gave her a note extending her return to work date to September 8.

10. Dr. Stephenson's chart notes of August 15 state that in a follow-up visit that day, Burge-Milner indicated that she "did speak with her boss in Madison and she would like to RTW 4 hours a week (sic) starting next week with restrictions." Those August 15 chart notes also state that Burge-Milner "[wa]s given a note to RTW on 8-18-08 with restrictions of 4 hrs/day (sic), no bending or stooping." Burge-Milner never testified to wanting to return to work, or actually returning to work, at that time (i.e. August 2008) or with those restrictions. Also, and notwithstanding Dr. Stephenson's August 15 chart entry, the record contains no letter from Stephenson of August 15, or any other date, mentioning anything about a return to work on August 18 subject to such restrictions (i.e., 4 hrs/day, no bend/stoop).(1) On August 27, Burge-Milner was given a note from Stephenson stating, "Please allow Diane to return to work as of Tuesday, September 2, 2008 for eight hours a day with no restrictions." That note was faxed to DVA on that date. In chart notes for a September 8 follow-up visit, Dr. Stephenson indicated that Burge-Milner had related to her that "she tried going back to work and made it 4 hours on one day and then had to go home." It is inferred from all of the foregoing that on or around September 2 Burge-Milner made an attempt to return to work but went home after 4 hours.

11. On September 8 Dr. Stephenson gave Burge-Milner a note indicating that Burge-Milner should be excused from work through to September 22.

12. Burge-Milner was in for follow-up again on September 17. It was agreed at that time that she would "continue to be off work until her [follow-up] next week." Dr. Stephenson gave Burge-Milner a note indicating that Burge-Milner should be excused from work through to September 29.

13. In a follow-up visit on September 24, it was agreed that Burge-Milner would "continue to be off work until her [follow-up] in 2 wks," and Dr. Stephenson gave Burge-Milner a note stating Burge-Milner should be excused from work until her follow-up on October 8.

14. In a follow-up visit on October 8, Dr. Stephenson wrote in her chart notes that Burge-Milner was given a note to continue to be off work until October 20. However, the record contains no note dated October 8. It does contain the letter dated "August 15" (referred to in footnote 1 above), which said Burge-Milner should be off until October 20. It is inferred that this was an October 8 letter which was erroneously misdated to August 15.

15. Burge-Milner next saw Dr. Stephenson for follow-up on October 15. Burge-Milner was still having pain and swelling in her foot. At that point, Burge-Milner elected to have surgery to remove screws which had been placed in her foot during the bunionectomy. The surgery was set for October 22. Dr. Stephenson faxed materials to DVA on that day (October 15) saying Burge-Milner was having surgery to remove the screws, and that she would need to be off until November 12.

16. On October 22, Burge-Milner had the surgery to remove the screws from her foot.

17. Burge-Milner's recovery from this surgery did not go well. On October 29, Dr. Stephenson noted "slight" wound dehiscence (rupture of a wound along a surgical suture) where it looked like a suture had popped. In follow-up on November 3, Dr. Stephenson found that only the distal and proximal sutures were left and the wound had dehisced down to the underlying tendon.

18. On October 30, DVA (by Gary Wistrom, a DVA Assistant Administrator) sent Burge-Milner a letter stating that given the duration of her leave DVA was led to conclude that termination of her employment for medical reasons from her current position as a part time nursing assistant 2 might be necessary. This letter informed Burge-Milner that a meeting had therefore been scheduled for 1 PM on November 5, to provide the opportunity for her to discuss the pending action as well as to explore "any options, including transfers," which might be available to enable her to continue her employment.

19. DVA had a formal procedure for employees to apply for transfers to other positions. That transfer procedure was covered by provisions of an applicable collective bargaining agreement. DVA could not unilaterally transfer an employee outside of the constraints of the agreement's transfer procedure. The transfer procedure involved use of a "transfer book" in the HR office, in which there was a list of all open positions. To seek a transfer, an employee would go to this book and enter their signature and the date by the listing for any position to which they wanted to be considered for transfer. The transfer process required this kind of written request from the employee seeking a transfer.

20. Contrary to her testimony at hearing that she did not know how to go about applying for a transfer, which testimony is not credited by the commission, Burge-Milner had previous experience with the transfer application procedures at DVA, having done so at least once, and she knew how to make a request for a transfer.

21. The meeting referred to by the October 30 letter was held as scheduled on November 5. In attendance besides Burge-Milner were Teri Henning, who at the time was the Human Relations Director for the Home, Marie Maguire, who was the nursing supervisor at the Home, and Wistrom.

22. At the November 5 meeting, the facts of Burge-Milner's case and the status of her leave entitlement was reviewed. It was noted that her FMLA leave and contractual leave entitlements were exhausted. Burge-Milner stated that she did not know when she would be able to come back to work. It was suggested to her that she contact Aetna regarding Income Continuation Insurance entitlement and the Department of Employee Trust Funds for separation information. In addition, there was discussion about the possibility of Burge-Milner working for DVA in other positions, and about whether it was possible that Burge-Milner could perform those positions.

23. Following the November 5 meeting, Burge-Milner did not use the DVA transfer procedure to actually apply for a transfer to a food service position or any other position.

24. Also on November 5, Burge-Milner saw Dr. Stephenson for follow-up. Dr. Stephenson prepared a letter dated November 5 confirming that wound dehiscence had occurred and advising that Burge-Milner might need to be off work an additional 6 - 8 weeks.

25. Burge-Milner saw Dr. Stephenson for further follow-up on November 24, December 1, and December 8. On these occasions, there were no discussions of when Burge-Milner could return to any kind of work, and during this time, there was no communication between Dr. Stephenson and DVA about Burge-Milner's condition.

26. Burge-Milner then saw Dr. Stephenson for follow-up on December 15. On that occasion, Dr. Stephenson created and faxed to DVA a note which stated that Burge-Milner could return to work, "with restrictions of working in the kitchen or laundry area only," on February 2, 2009. As of this point, Burge-Milner had still not used the DVA transfer procedure to actually apply for a transfer to a food service position or any other position.

27. On December 18, Henning sent Dr. Stephenson a letter in response to Stephenson's note of December 15, "to provide additional information about food service positions at our home and the physical requirements." Henning's letter described what food service employees did, and indicated that they were required to have the ability to lift up to 50 pounds, stoop, bend, twist, stand for extended periods of time and push and pull wheeled carts filled with food trays weighing approximately 125 pounds for distances of at least 40 yards. Henning's letter did not describe the requirements for laundry positions, noting only that there were no vacant laundry positions. Her letter closed by asking,

Based on the additional information provided regarding the duties and physical demands of a food service position, will Burge-Milner be able to perform the duties without restrictions? If no, what accommodations, if any, can be made?

28. On January 6, 2009, Dr. Stephenson responded to Henning's December 18 letter, stating:

I do feel that the patient will be able to return to work on February 2, 2009 with the restriction of working in the kitchen or laundry facility. The patient does relate that she will be able to lift up to 50 pounds, stoop, bend, twist, and stand for extended period of time, and also push and pull wheeled carts filled with food trays, even though they may weigh approximately 125 pounds.

As of this point, Burge-Milner had still not used the DVA transfer procedure to actually apply for a transfer to a food service position or any other position.

29. In all of the letters and chart notes of Dr. Stephenson over the course of her treatment of Burge-Milner, there is no indication that Stephenson ever did any functional examination addressing Burge-Milner's range of motion and actual ability to "stoop, bend, twist, ... stand for extended period of time, [and]... push and pull," at any weight level. There is no indication that Dr. Stephenson ever conducted any physical examination of Burge-Milner apart from examination of the state of her surgical wound.

30. Dr. Stephenson's opinion as to Burge-Milner's capabilities appears to have been based on asking Burge-Milner if she felt she was capable of doing what was described in the food service position description and taking at face value Burge-Milner's opinion that she could.

31. Dr. Stephenson saw Burge-Milner on January 12, and in her chart notes for that visit she wrote, "I think we're looking good for the RTW date of 2-1-09 (sic) barring something else happening." (This one-day difference in the anticipated return to work date, from February 2 to February 1, is not explained and was presumably just an error.)

32. Upon examination of Burge-Milner on January 19, Dr. Stephenson found some superficial dehiscence not completely healed, and she decided to push the return to work date back. She wrote DVA a letter indicating "[we] are postponing the date she may return to work to February 15, 2009 due to wound dehiscence and edema. Diane will continue to be seen until she is fully recovered." In this letter, Dr. Stephenson said nothing about what work (i.e., nursing assistant work, or only food service work) she thought Burge-Milner would be able to do upon a return to work on February 15.

33. On February 3, 2009, Wistrom sent Burge-Milner a letter. It noted that the most recent information it had received from Burge-Milner's doctor was that she would be able to "be back in the work unit by February 15." The letter continued by noting that since May 10, 2009 she had been mostly absent from work, that the most recent indication from her doctor was that she would be able to be back to work on February 15, 2009, that she had exhausted all her leave entitlements, and that if she was not able to return to work on February 15, 2009, they would have no option but to discuss medical termination. The letter stated that Burge-Milner was requested to provide, prior to her return to work on February 15, 2009, "a fitness for duty certificate or statement from your physician that indicates that you can perform the required duties of a Certified Nursing Assistant 2."

34. On February 13, Burge-Milner saw Dr. Stephenson. Burge-Milner told Dr. Stephenson she needed a new letter stating her restrictions and when she was to return to work. Dr. Stephenson had a letter prepared, bearing the date February 13, 2009, stating that Burge-Milner could return to work on February 15 with the restriction that she be working in the kitchen or laundry facility, and which again indicated that this was based on Burge-Milner having "related" and "stated" to Stephenson that she could do that work.

35. The letter from Dr. Stephenson bearing the date February 13, 2009 (referred to in FOF 34 above) also bears facsimile machine markings indicating that it was not faxed until February 25, 2009. Also, in a letter of February 23 from DVA to Dr. Stephenson (referred to in FOF 38 below), it is stated that DVA had not received any reply to the letter it had sent Dr. Stephenson on February 3 (referred to in FOF 33 above). It is inferred from these facts that the Stephenson letter bearing the date of February 13 was actually first sent to DVA by facsimile transmission on February 25.

36. Contrary to her testimony at hearing that she made an attempt to return to work during February 2009, which testimony is not credited by the commission, Burge-Milner did not make an attempt to return to work during February, 2009. It is found most likely that Burge-Milner's testimony to that effect resulted from her recalling an attempt she made to return to work on or around September 2, 2008, as found above in FOF 10.

37. Contrary to her testimony at hearing that she had a meeting on Valentine's Day at which she was fired, which testimony is not credited by the commission, Burge-Milner did not have a meeting with Wistrom and Marie Maguire on or around Valentine's Day (February 14) of 2009 at which she was "fired".

38. On February 23, DVA Commandant Randy Nitschke sent Burge-Milner a letter. It began by noting that she had been absent from work for a medical condition since May 10, 2008, that her date of return had been repeatedly postponed, that as of that date they did not have a firm date of return, and that all of her leave entitlements had been exhausted. It continued by stating that DVA had sent her a letter on February 3 which indicated that if she was unable to return to work they would have no option but to discuss medical termination, and that DVA had not received any reply to that letter or any indication that she would be able to return to her assigned position. The letter continued by stating, "we are led to believe termination of your employment for medical reasons from your current position as a PT Nursing Assistant 2 may be necessary," and setting a meeting for March 4 to discuss that pending action as well as "any options, including transfers," which might be available to enable her to continue her state employment.

39. As of this point (February 23, 2009), Burge-Milner had still not used the DVA transfer procedure to actually apply for a transfer to a food service position or any other position, and she did not do so after receiving Nitschke's letter.

40. On February 25, 2009, a letter from Dr. Stephenson was faxed to DVA. This letter was the one of bearing the date February 13, 2009 referred to in FOF 34 above.

41. Contrary to her testimony at hearing that she did not have a meeting at DVA on March 4, 2009, which testimony is not credited by the commission, Burge-Milner did indeed participate in a meeting with DVA on March 4, 2009. Present at that meeting with Burge-Milner were Wistrom, Maguire, and Racheal Harris, a DVA Human Relations Assistant. The purpose of that meeting was to give Burge-Milner the opportunity to provide updated medical information regarding her condition and to discuss her possible return to a nursing assistant position. At the meeting, Burge-Milner did not present any medical information more current than that in the letter which had been faxed to DVA on February 25 and she did not indicate that she was capable of returning to a nursing assistant position.

42. On March 12, 2009, Nitschke sent a letter to Burge-Milner confirming that on March 4, 2009 she had met with Wistrom, Maguire, and Harris, H.R. Assistant. This letter advised Burge-Milner that she was being medically separated from her nursing assistant position effective March 16, 2009. The letter noted that as of that time (March 12) the most recent medical information concerning Burge-Milner which DVA had received was a letter from Dr. Stephenson which had been faxed to DVA by Stephenson on February 25.

43. A handwritten note entered in Burge-Milner's chart with the date March 4 by "SH", presumably a staff member at Dr. Stephenson's clinic, indicates that on that date Burge-Milner called Stephenson's office and stated that she needed a new letter regarding her work restrictions. A handwritten note by "SH" entered in Burge-Milner's chart with the date March 10 indicates that on that date Dr. Stephenson dictated a letter concerning Burge-Milner. A handwritten note by "SH" entered in Burge-Milner's chart with the date March 27 indicates that on that date a letter was mailed to the patient and the original was sent to Gary Wistrom at DVA. In addition to the foregoing chart notes, the record contains a letter from Dr. Stephenson to Wistrom at DVA, bearing the date March 20, 2009. It is inferred from all the foregoing facts that the letter from Dr. Stephenson to Wistrom bearing the date March 20, 2009 was dictated by Stephenson on March 10 but not mailed to Wistrom until March 27. Thus it was correct that when Nitschke sent the letter of March 12, the most recent medical information concerning Burge-Milner which DVA had received was the letter from Dr. Stephenson which had been faxed to DVA by Stephenson on February 25.

44. The letter from Dr. Stephenson to Wistrom bearing the date March 20 and mailed on March 27, recapped Burge-Milner's medical history, and it then continued, "[a]t this point, I do not feel that the patient is able to perform her duties as a CNA." Stephenson identified as "questionable activities" "the uncertainty of patient care including twisting, bending and lifting" and states that this "could be reevaluated" in 6 months to a year. In addition, she again mentioned the matter of "kitchen or laundry" work, stating that "I do feel that she is able to stand for extended periods of time and also push and pull wheeled carts filled with food trays, even though they may weigh approximately 125 pounds."

45. Burge-Milner never used the DVA transfer procedure to actually apply for a transfer to a food service position or any other position.

46. After the correspondence of March 2009 just described, there were no further contacts between DVA and Burge-Milner, either directly or through a medical practitioner. Burge-Milner never presented herself as ready to work at DVA, and she never returned to work with DVA in any capacity.

47. After last seeing Dr. Stephenson on February 18, 2009, Burge-Milner stopped treating with her. Burge-Milner did not seek any further treatment of her foot until November, 2009.

48. On November 9, 2009, Burge-Milner was seen by Dr. Kaz, an orthopedic surgeon. Burge-Milner's presenting complaint was continued pain and swelling in her left forefoot. Dr. Kaz obtained a history from her, conducted a physical examination, and had X-rays done. His initial impression was "left forefoot pain status post bunion correction." He arranged for an MRI to be done, thinking that it might be able to identify some type of pathology causing the observed swelling and pain.

49. Burge-Milner was seen by Dr. Kaz again on November 17, 2009 for a check-up and to discuss her MRI. At that time she continued to have pain and swelling. After physical examination he evaluated the MRI and concluded that it showed "some scarring along the dorsal aspect of the 1st MTP joint but really no bony abnormality other than a small area of increased signal where her old screw likely was to hold her osteotomy." His impression was "[c]ontinued left forefoot pain status post bunion correction."

50. In his notes, Dr. Kaz described himself as "at a bit of a loss to explain [Burge-Milner's] continued symptoms." He noted that they discussed options including leaving things alone, trying an orthotic, steroid injection, or surgical intervention in the form of an exploration. He explained to Burge-Milner that if she chose surgery he would be able to excise some scar tissue, which might or might not help her, and that he could make no guarantees regarding any improvement in her symptoms. Burge-Milner elected at that point to proceed with a cortisone injection, which Dr. Kaz did. Kaz also gave her a prescription for orthotics. The plan was that she would give that a try and would return in the next weeks to months to let him know how she was doing and what she had decided as to further intervention or continued observation.

51. Burge-Milner did not see Dr. Kaz again. As of the time of her testimony at the hearing in this matter (August 15, 2014), she had not sought any further medical treatment for her foot.

52. Burge-Milner failed to establish that the impairment to her left foot was a permanent condition, or that she either had a record of or was perceived by DVA as having an impairment of her left foot which was a permanent condition.

Based on the Findings of Fact made above, the commission makes the following:

1. The respondent, Department of Veterans Affairs, is an employer within the meaning of the Wisconsin Fair Employment Act, and was the employer of the complainant, Diane M. Burge-Milner.

2. The complainant did not establish that she was an individual with a disability within the meaning of the Wisconsin Fair Employment Act.

3. The complainant did not establish that the respondent discriminated against her because of disability within the meaning of the Wisconsin Fair Employment Act

Based on the Findings of Fact and Conclusions of Law made above, the commission makes the following:

The complaint in this matter is dismissed.

Dated and mailed November 11, 2015

burgemi_rrr : 110 :  123.3  123.4  123.13

BY THE COMMISSION:

/s/ Laurie R. McCallum, Chairperson

/s/ C. William Jordahl, Commissioner

/s/ David B. Falstad, Commissioner

The threshold question presented in a disability discrimination case is whether the complainant is an individual with a disability. The employee bears the initial burden of proving a disability.

The WFEA only covers permanent impairments. See, Rutherford v. Wackenhut Corp., ERD Case No. 200402916 (LIRC, 05/13/11). Competent medical evidence is required to establish the existence, nature, extent, and permanence of an impairment, if disputed as a matter of fact. See, Alamilla v. City of Milwaukee, ERD Case No. CR201002749 (LIRC, 06/28/13), and cases cited therein.

The competent medical evidence in the record comes from Dr. Stephenson, Burge-Milner's treating podiatrist, and Dr. Kaz, an orthopedic surgeon.

The medical evidence from Dr. Stephenson contains nothing stating that Burge-Milner was suffering from a condition which could be expected to be permanent. On the contrary, the evidence from Stephenson suggested, at least initially, that what could be and was expected was recovery without any permanent restrictions. Letters from Dr. Stephenson repeatedly stated the expectation that Burge-Milner would be able to return to work on certain stated coming dates, "with no restrictions," and that Burge-Milner would continue to be seen until she was "fully recovered." The repetition of such statements can be seen as reflecting the treating professional's expectation that a full recovery is the eventual expected outcome. What is more, they communicate that expectation to the employer that reads them, which suggests that the employer would not have the perception that the employee has a permanently disabling condition.

Although Dr. Stephenson's notes and letters did shift near the end to stating that Burge-Milner was at that point unable to do her CNA job, and to discussing Burge-Milner's expected ability as of February 2009 to work in kitchen or laundry, even at this point she did not state that the restrictions preventing her from doing the CNA job were permanent. In her letter of March 20, 2009, her opinion was limited to what she found Burge-Milner's condition to be at that point

The clearest and most specific opinion given by Dr. Stephenson on that issue was her letter of March 20, 2009, which said, in material part:

At this point, I do not feel that the patient is able to perform her duties as a Certified Nursing Assistant. I feel the uncertainty of patient care including twisting, bending and lifting would only cause more pain and damage to her foot at this time. This may be something that may be re-evaluated at a later date, six months to a year from now. At this point, I feel that the patient is able to return to work in a capacity of working in the kitchen or laundry facility...

I do feel that the patient is able to lift up to 50 pounds, stoop, bend, and twist since she will be in control of the carts and in control of the movement of her body. I do feel that the uncertainty of patient movement is the determining factor in her inability to be a CNA at this point. Again, I do feel that this may be something that may be able to be re-evaluated at a later date; I am not sure, and we will continue to monitor the patient's progress. Again, I do feel that she is able to stand for extended periods of time and also push and pull wheeled carts fill with food trays, even though they may weigh approximately 125 pounds. At this point, however, I do not see her going back to her origin (sic) position as a Certified Nursing Assistant as an option at this time.

(emphasis added). The emphasized language here highlights the fact that Dr. Stephenson was not rendering an opinion that Burge-Milner's condition was permanent. At most, she was saying here that it was possible that Burge-Milner might be able to return to work as a CNA and possible that she might not, that she was not sure, and that this would have to be determined in six months to a year. But Burge-Milner never returned to Dr. Stephenson, and she thus never made that determination.

The question then is whether this evidence from Dr. Stephenson satisfies Burge-Milner's burden to establish that she did have a permanent impairment. It seems clear to the commission, that it does not.

The medical evidence from Dr. Kaz consists of his notes from examinations of Burge-Milner and radiographic and MRI imaging of her foot. Burge-Milner's complaint was continued pain and swelling in the left forefoot. Dr. Kaz' initial impression after the first examination was "left forefoot pain status post bunion correction." He wrote that he was not sure he had a solution for Burge-Milner. Even after an MRI, Dr. Kaz was still, in his own words, "at a bit of a loss to explain Diane's continued symptoms." Dr. Kaz' evidence, like that of Dr. Stephenson, adds little to Burge-Milner's attempt to establish that she has a permanent disability.

The problem is not that Burge-Milner cannot provide a name for her condition (which is, essentially, swelling and pain in her left forefoot). It is that the medical experts whose evidence is in the record could not and did not opine that the condition was permanent.

Because of the procedural history of this case, it ended up that the hearing was held more than 6 years after the problem of Burge-Milner's foot pain and swelling had arisen. Burge-Milner testified that her symptoms had been basically the same during that period. It may be asked, whether this is sufficient to meet the burden of proving that there is a permanent disability. Taking the view from the perspective of 6 years down the road, this approach may have some superficial appeal. But, the respondent did not have the benefit of six years' hindsight when it was dealing with the situation. An employer may reasonably decide to approach a situation in which an employee becomes unable to do their job, by evaluating whether the reason is a condition that is a "disability" - including the element of permanency that is part of that definition. If the employer reasonably concludes that the condition which is making the individual unable to do their job is a temporary one, and thus not a disability under the WFEA, it would seem reasonable for it to be able to rely on that conclusion.

The commission acknowledges that in another case, it said this:

To base a decision on whether an impairment is permanent strictly on the information that was available at the time of discharge would effectively allow an employer to discharge an injured or sick employee with impunity, provided the employer did so prior to any assessment of the permanency of the injury or illness. The statute does not contemplate such a result.

Rutherford v. Wackenhut Corp., supra. However, there was a significant difference in the situation in Rutherford. In that case, there were expert medical opinions expressly finding that the complainant had reached a healing plateau and had a specified percentage of permanent disability. In other words, in Rutherford there was no question but that the employee was an individual with a disability. Here, that is precisely the point at issue.

Two points incline the commission to conclude that Burge-Milner did not establish a permanent disability.

First, the commission takes seriously the propositions, long established and often repeated, that proof of a disability requires competent medical evidence of the employee's alleged impairment, and that there must be competent medical evidence as to the nature, extent, and permanency of the condition. Erickson v. LIRC and Quad Graphics, 2005 WI App 208, 17, 23, 287 Wis. 2d 204, 215, 219, 704 N.W.2d 398. See also Connecticut General Life Ins. Co. v. DILHR, 86 Wis. 2d 393, 273 N.W.2d 206 (1979) (competent medical evidence required to establish the existence, nature, extent, and permanence of an impairment). These decisions teach that the element of permanence is one that requires competent medical evidence. Second, the commission takes seriously the proposition that it is the complainant's burden in a disability discrimination case to establish that she is an individual with a disability within the meaning of the Wisconsin Fair Employment Act. Boynton Cab Co. v. DILHR, 96 Wis. 2d 396, 291 N.W.2d 850 (1980).

Burge-Milner simply did not present any competent medical evidence that the condition of her left foot is a permanent one. On the contrary, the most recent opinions from Dr. Stephenson (her letter of March 20, 2009) and Dr. Kaz (his consultation notes of November 17, 2009) both reflected uncertainty on the status of her foot and what the prospects were for it. Uncertainty is not proof by a preponderance.

Even if the commission had concluded that a permanent disability was established in this case, this would not have led the commission to reach a different result, for the following reasons.

If Burge-Milner had a disability, the next question which would have to be considered was whether DVA took an adverse action against Burge-Milner because of that disability.

DVA clearly did take an adverse action against Burge-Milner because of her condition, when it medically terminated her from her position as a nursing assistant.

However, it was also clear that Burge-Milner's foot condition was "reasonably related to [her] ability to adequately undertake the job-related responsibilities of [her] employment," that being her nursing assistant job. After all, her own treating practitioner's opinion was that Burge-Milner was unable to do that job. Thus the affirmative defense in Wis. Stat. § 111.34(2)(a) would be established.

The analysis would then reach the question of whether a reasonable accommodation was available.

There was no contention, much less any proof, that there were any accommodations which could have allowed Burge-Milner to continue her employment with DVA as a nursing assistant. The analysis would thus turn to the question of whether, notwithstanding Burge-Milner's inability to do her nursing assistant job, there was a reasonable accommodation available which would have allowed her to maintain employment with DVA in some other capacity. See, Crystal Lake Cheese Factory v. LIRC and Catlin, 2003 WI 106, 52, 264 Wis.2d 200, 664 N.W.2d 651 (a different job may in certain circumstance be a reasonable accommodation). The focus in this case was exclusively on a position in food service.(2)

The employee bears the burden of establishing that there was an accommodation available which would have allowed the preservation of the employee's employment, which the employer refused to allow. See, Hutchinson Technology v. LIRC, 273 Wis. 2d 393, 682 N.W.2d 343 (2004). Thus, Burge-Milner bore the burden of proving that she could have done the food service position and that it was denied to her. The commission would not have found that Burge-Milner met this burden, for two reasons.

First, the commission would not have found Burge-Milner to have met her burden of establishing that she could have done the food service job, because it believes it was not established that she would have been physically able to do it.

This is a case in which the complainant's treating practitioner opined that the complainant was unable to do a job she had previously done (nursing assistant) because of its physical demands and her physical limitations. A main reason for the practitioner's opinion had to do with the need for nursing assistants to be able to do the hard physical work of lifting and holding patients. At a minimum, this removes any initial presumption that Burge-Milner would have been able to do the food service job, leaving it at best an open question. Because the complainant bears the burden of establishing that there was an accommodation available which would have allowed the preservation of the employee's employment, the complainant needs to prove that she was able to do that job.

The commission believes that Burge-Milner's evidence that she would have been able to do the food service job - that evidence being Dr. Stephenson's opinion to that effect - was not reliable and not credible. There is no indication that Stephenson did any kind of examination of Burge-Milner's functional capacities, so there does not appear to be any medical basis for her to have arrived at her opinion. Instead, Dr. Stephenson's reporting as to her opinion suggests that she was not so much providing her own expert assessment and opinion as she was merely passing on what Burge-Milner had related to her - which was simply the (lay) opinion of Burge-Milner herself.

The commission also believes, that other evidence indicated that Burge-Milner would not be able to do the food service job. It was clearly a physically taxing job ("heavy manual work"), involving "extensive" standing and walking, requiring lifting 50 pounds, stooping and bending (activities which notes from Dr. Stephenson had previously indicated Burge-Milner could not do), and pushing and pulling 125 pound carts at least 40 yards.

More important, testimony established that even in the food service position Burge-Milner could encounter the same kinds of situations she would in the nursing assistant position, making her responsible for lifting, holding and being responsible for the support of frail residents - the responsibilities that were the problem making her unable to do the nursing assistant job. Burge-Milner acknowledged that as an employee working with residents, if a resident became imperiled she would have a duty to assist even if she was not in a nursing position. She acknowledged that a food service worker would not be able to do their job if they could not assist in an emergency with a resident. Nurse Maguire, a witness for DVA, testified that food service workers could be involved in helping to seat residents, help them walk from their wheelchair to the table, and help them with standing . She testified that all employees were expected to provide assistance in this manner. Racheal Harris, an HR supervisor, testified that food service workers would assist residents with standing and sitting, and that all employees had a duty to ensure safety of residents and that this was a job that required standing, sitting and maintaining balance. Amy Franke, HR manager for DVA, testified that both a nursing assistant and a food service worker would need to stand, walk and maintain balance as an essential function of their position.

Second, the commission would not have found that DVA refused to allow Burge-Milner to work in the food service position, because Burge-Milner never took the opportunity which was available to her to seek a transfer to such a position.

From a relatively early point - at least by the October 30, 2008 letter from Wistrom - DVA recognized and communicated to Burge-Milner that a transfer might be a way for her to continue her employment. Burge-Milner would have known transfer was an option. The commission did not credit Burge-Milner's testimony that in the November 5 meeting, DVA ignored her or wouldn't answer when she raised the possibility of her working in a different job. It believes instead that that possibility was discussed and consideration was given to whether or not it would be possible. Whatever opinions may have been shared on that question, there is no indication that DVA ruled out such a transfer at this meeting. Indeed, it appears that even after this point DVA continued to consider the possibility of Burge-Milner working in a food service position, asking Dr. Stephenson about it in a December 18, 2008 letter. More significantly, DVA again mentioned the possibility of Burge-Milner transferring to another position in a February 23, 2009 letter.

DVA had a procedure for employees to apply for transfers to other positions. Transfer procedure was subject to the applicable collective bargaining agreement, and the transfer procedure affected the rights not only of any individual seeking a different job but also the rights of other employees interested in the same job. It was thus important to DVA that employees followed this procedure.

In addition to it being important to DVA that employees use the transfer procedure, it was easy for DVA's employees to do so. That procedure involved a "transfer book" in the HR office, in which there was a list of all open positions. To seek a transfer, all an employee had to do was to go to this book and sign and date an entry for a position they wanted to be considered for transfer to. Burge-Milner had previous experience with using the transfer application procedures at DVA, and had done so at least once. She acknowledged that she knew how to make a request for a transfer. However, Burge-Milner never actually applied for a transfer to a food service position.

An employer has an obligation to engage in an "interactive process" aimed at determining the precise job-related limitations imposed by a disability and how those limitations could be overcome with a reasonable accommodation. See, e.g., Gamroth v. Department of Corrections, ERD Case No. CR200303157 (LIRC, Oct. 20, 2006).(3) The commission is satisfied that DVA adequately raised and explored with Burge-Milner the questions relevant to determining if there was a reasonable accommodation available. The commission does not believe that it was a "refus[al]" to engage in reasonable accommodation, within the meaning of Wis. Stat. § 111.34(1)(b), for DVA to expect Burge-Milner to follow the standard process for applying for a transfer to another position.

cc: Attorney Sandra G. Radtke

     Attorney James A. Stewart

[ Search ER Decisions ] - [ ER Decision Digest ] - [ ER Legal Resources ] - [ LIRC Home Page ]

(1)( Back ) The record does include a note from Dr. Stephenson dated "August 15, 2008," but that note says, "[p]lease excuse Diane from work until Monday, October 20 (sic), 2008," and it says nothing about partial hours or restrictions. That note also bears markings indicating that it was faxed to DVA on October 10, 2008. See FOF 14, below.

(2)( Back ) Burge-Milner's counsel stipulated at hearing that the only position Burge-Milner was arguing was a reasonable accommodation for her, was a food service position. (T. 229).

(3)( Back ) The failure to engage in an interactive process does not, on its own, constitute a violation of the law. The question is whether the complainant has shown that, if the employer had engaged in the process with the employee, together they could have identified a reasonable accommodation. Gamroth, supra. 

uploaded 2015/11/30