Wis.LIRC ER Decision: Reinke, Josephine - January 28, 2000 - Disability discrimination - temporary condition (musculoskeletal injury - strain/sprain) from fall at work not a 'disability'

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

JOSEPHINE REINKE, Complainant

PICK'N SAVE MEGA FOOD CENTERS, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 199703205, EEOC Case No. 26G971828

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:

FINDINGS OF FACT

1. The Complainant, Josephine Reinke (hereinafter, "Reinke"), began her employment with the Respondent, Pick'N Save Mega Food Centers (hereinafter, Pick'N Save), in October of 1995, as a part-time cashier.

2. In early April, 1997, Reinke fell while at work as a cashier. Three or four days later she sought medical care from Dr. M. Joseph, at which time she complained of pain in the right thigh and lower left leg. Dr. Joseph found no joint dislocation or fracture and noted that thoracic spine and lumbar spine x-rays were "unremarkable". He diagnosed a "musculoskeletal sprain". Dr. Joseph prescribed Ibuprofen and Tylenol and gave Reinke a "Work Status Record" note listing a diagnosis of "Sprain R thigh L leg" and indicating that she was totally incapacitated until "she sees me."

3. Dr. Joseph saw Reinke again on April 18, 1997, at which time he gave her another "Work Status Record" note, listing "R thigh L leg Sprain" as the diagnosis, and indicating that she was totally incapacitated until "physical therapy evaluation is completed."

4. Dr. Joseph gave Reinke another "Work Status Record" note on April 24, 1997, listing a diagnosis of "Sprain R thigh L leg", and stating that she could return to work on May 2, 1997 with the restrictions, "would like to start with 45 minutes at register and 45 minutes sit down work."

5. Reinke returned to work with Pick'N Save on May 2, 1997. She worked on registers.

6. Dr. Joseph gave Reinke another "Work Status Record" note on May 13, 1997, listing a diagnosis "Resolving musculoskeletal injury," and stating that she could return to work on June 2, 1997 with the restrictions, "Advised to keep the same work restrictions as of 5/2/1997 - 5/16/1997. Patient prefers to do counter work."

7. At one time or another, Reinke presented some or all of the "Work Status Record" forms described above, to Pick'N Save.

8. On May 23, 1997, Reinke was advised in writing by Pick'N Save that there was no longer work available for her at Pick'N Save within the restrictions noted on the April 24, 1997 "Work Status Record." The note asked her to contact Pick'N Save at such time as her restrictions changed so that the work availability issue could be reviewed.

9. Pick'N Save's inability to provide Reinke with work within the restrictions listed on the April 24, 1997 "Work Status Record" had to do with the requirement that Reinke be given alternating 45-minute periods of sitting work. The requirements of the cashier position at Pick'N Save necessitate that the cashier work standing. Pick'N Save had attempted to provide Reinke with sit-down work by providing her work sorting coupons, which could be done sitting down, but this work ceased to be available because changes took place by which coupons were handled electronically and they therefore no longer needed to be sorted.

10. Reinke obtained a "Work Status Record" from another medical practitioner on June 2, 1997, which listed a diagnosis "lower back strain," and which indicated that she could return to work on June 8, 1997 with the restrictions, "Sedentary Work", and, in an 8 hour day, no standing/walking, and 3-5 hours of sitting. This "Work Status Record" also indicated that Reinke could use her hands for repetitive "single grasping" and "fine manipulation," that she could not use her feet for repetitive movements as in operating foot controls, and that she could "occasionally" bend, twist, squat and reach, but could climb "not at all.." This "Work Status Record" also stated "light duty x 5 days."

11. Reinke also filed a grievance challenging her layoff, and following a meeting between Reinke, her union representatives, and Pick'N Save representatives, an agreement was reached to put Reinke back to work as a cashier on Register 21, an express lane where she checked out mainly cigarettes, six- packs of soda, and other small items, and to allow her to sit on a stool while working. Reinke returned to work on June 8, 1997.

12. On June 18, 1997, Reinke obtained a "Certificate To Return To Work Or School" from a health care practitioner which indicated that she had been under that practitioner's care from June 18, 1997 to June 20, 1997 and that she was able to return to work on June 20, 1997 with the restrictions, "Patient is to have 45 minutes on Register and 45 min. sit down work." In the space on this "Certificate To Return To Work Or School" form for indication of what the patient was being treated for, this practitioner had written simply, "Patient referred to Neurologist."

13. On June 26, 1997, Reinke obtained a note from Dr. Jitendra K. Baruah, Neurologist, stating "Ms. Reinke can do sedentary job in her work place. No pushing, pulling or lifting should be done. Back to work in above capacity on July 2nd 1997." This note did not indicate a specific condition for which the patient was being seen or because of which the restrictions were being imposed.

14. On July 16, 1997, Reinke obtained a "Work Status Report" form from a health care practitioner at Orthopaedic Associates of Milwaukee, S.C. stating that she had been seen on that date for "low back pain" and that she could return to work with the restrictions, "lifting limited to no more than 10 pounds," and, under "other", "45 minutes on register, 45 minutes off to sit down."

15. Reinke presented the July 16, 1997 "Work Status Report" note to Pick'N Save.

16. On July 18, 1997, Reinke was advised in writing by Pick'N Save that there was no longer work available for her at Pick'N Save within the restrictions noted on the July 16, 1997 "Work Status Report." The note asked her to contact Pick'N Save at such time as her restrictions changed so that the work availability issue could be reviewed.

17. Pick'N Save's inability to provide Reinke with work within the restrictions listed on the July 16, 1997 "Work Status Record" had to do with the requirement that Reinke not do any lifting of more than 10 pounds. Many items for sale at Pick'N Save weighed more than 10 pounds and Pick'N Save considered the ability to lift such items a fundamental requirement of the job of a cashier.

18. The physical condition from which Reinke suffered and on the basis of which Pick'N Save made certain decisions, as described above, was a musculoskeletal injury, in the nature of a strain or sprain, affecting her right thigh and lower left leg, caused by a fall at work in early April, 1997. As far as the evidence in this record shows, this was a temporary condition. There is no evidence in the record that Reinke had any permanent disability, either to her back or to any other part of her body. There is also no evidence that Pick'N Save perceived Reinke to have any sort of permanent disability, or to be suffering from anything other than the temporary strain/sprain effects of her fall.

CONCLUSIONS OF LAW

1. Josephine Reinke is an employe within the meaning of the Wisconsin Fair Employment Act.

2. Pick'N Save is an employer within the meaning of the Wisconsin Fair Employment Act.

3. Josephine Reinke did not establish that she was an individual with a disability within the meaning of the Wisconsin Fair Employment Act.

4. There is no probable cause to believe that Pick'N Save discriminated against Josephine Reinke because of disability, within the meaning of the Wisconsin Fair Employment Act, in respect to work assignments or in any other respect.

ORDER

The complaint in this matter is dismissed.

Dated and mailed January 28, 2000
reinkjo2.rrr : 110 :

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

It appears that Pick'N Save made certain decisions about Josephine Reinke's work assignments, because of certain restrictions which were being imposed on her by health care providers in connection with the effects of a fall at work she suffered in early April, 1997. However, the commission does not find it necessary to engage in any sort of analysis of whether the actions of Pick'N Save constituted an adequate accommodation in this case. The obligation to engage in reasonable accommodation arises when employes have a "disability" within the meaning of the Fair Employment Act. The Act provides that "individual with a disability" means 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.

Wis. Stat. � 111.32(8). The commission has long held, that disabilities which are merely temporary do not fall within what is intended to be covered by the Fair Employment Act's prohibition on discrimination because of disability. See, Lockington v. La Crosse Rubber Mills (LIRC, 04/08/81); Pizl v. Waukesha Bearing (LIRC, 03/09/83).

The record in this case fails to demonstrate that Reinke was an individual with a disability within the meaning of this provision. For all that the record in this case shows, Reinke simply fell at work and experienced a musculoskeletal strain or sprain. The commission would specifically note, that it found no evidence in the record that Reinke had a herniated disc, or any other back problem.

While it is true that Pick'N Save did attempt, at times, to `accommodate' Reinke's condition, this does not serve to prove that she had a disability within the meaning of the Act. Reinke was injured at work, and because of that, Pick'N Save had legal obligations to try to get her back to work, which existed whether or not her condition was one that would constitute a disability under the Fair Employment Act.

Reinke has filed extensive written argument with the commission, with which she has included a great deal of paperwork, much of which consists of matters which were not part of the evidentiary record. The commission has considered Reinke's arguments, but it has not considered documents she submitted which were not part of the evidentiary record made at hearing. By law, the commission is required to conduct its review based on the evidence submitted and received at the hearing. See, Wis. Stat. � 111.39(5).

As noted, the commission has considered the arguments which Reinke has submitted, to the extent that those arguments do not depend on assertions as to factual matters not within the evidentiary record. Reinke has made many vague allegations of improper conduct by the Respondent, the Administrative Law Judge, and the commission and its staff. The commission finds these allegations to be wholly without substance. Notwithstanding that there was initially some confusion in the record as to exactly what documents had been received as exhibits at the hearing, see the NOTE, below, the commission is satisfied that the parties, including the Complainant, were afforded a full and fair opportunity to be heard and to present evidence. The Complainant has failed to prevail in her efforts to establish probable cause simply because she failed to present reliable medical evidence establishing that she had a condition which would constitute a disability under the Act.

NOTE: As was described in the commission's earlier (remand) order in this matter, dated September 2, 1999, when the file in this matter was first forwarded to the commission after the filing of the petition for review it was not possible for the commission to determine what documents in the file had been received as exhibits at the hearing. The commission's remand order directed the ALJ to "[clarify] the status of the papers in the file and [indicate] specifically what documents, if any, are to be considered part of the record."

The ALJ's compliance with this mandate was less than the commission had hoped for.

The commission had left to the discretion of the ALJ the matter of how he would go about clarifying and resolving the issues as to what documents were part of the evidentiary record. Evidently, the ALJ determined to go about this by sending the parties a letter concerning the evidentiary record. Unfortunately, there was no copy of this letter in the file when it was returned to the commission, only copies of the parties' responses. Thus, the commission does not know what the ALJ stated to the parties in terms of an understanding as to the state of the evidentiary record.

While the ALJ subsequently applied exhibit labels to a number of documents in the file which had not had them when the file was first forwarded to the commission, and while he issued an amended decision which included a list entitled "Reinke Exhibits," he did not further explain his actions, and there was some ambiguity left by the fact that there were some documents which exhibit labels had been added to, but which were not included in the "Reinke Exhibits" list.

Nevertheless, the commission has concluded that the most reasonable explanation of the ALJ's actions, is that he was intending to communicate that the documents listed in the "Reinke Exhibits" list constitute the entire documentary record in this matter. The commission has reviewed this case on that basis, considering as record evidence only the testimony offered at hearing and the documents listed in the "Reinke Exhibits" list. It is based on its review of that record, that the commission concluded that Reinke ultimately failed to establish the threshold condition, that she was an individual with a disability within the meaning of the Fair Employment Act.

cc: Robert J. Glisch, Vice-President, Respondent

Appealed to Circuit Court. Appeal dismissed for petitioner's failure to file a brief, August 1, 2000.

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