Wis.LIRC ER Decision: Jones, Regina - January 25, 2001 - Disability discrimination - sufficient competent evidence established complainant suffered from carpal tunnel syndrome, an impairment under the WFEA - employer did not refuse reasonable accommodation or otherwise discriminate - limitations left complainant unable to perform any work available with employer, with or without accommodation

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

REGINA A JONES, Complainant

UNITED STATIONERS INC, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 199803598, EEOC Case No. 26G990155

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 modifications:

1. Paragraphs 18-23 of the administrative law judge's FINDINGS OF FACT are deleted and the following are substituted therefor:

18. On July 14, 1998 the complainant exhausted her paid leave.

19. On or about July 28, 1998, the complainant met with Kathy Bruno, the assistant operations manager, and presented her with a doctor's release which indicated that the complainant could occasionally lift between 20 and 100 pounds and could occasionally push or pull more than 25 pounds, but should never push or pull more than 41 pounds. The doctor's release also indicated that the complainant could frequently perform most other activities, including handling/fingering and typing/keyboarding. The release contained a note that these were "general restrictions" and that a formal functional capacity evaluation should be conducted.

20. When the complainant presented the doctor's report she told Ms. Bruno that she did not feel her wrist had improved and that she did not think she could do restocking or order filling. After consultation with the corporate human resources department, Ms. Bruno decided to send the complainant for a second medical opinion in order to determine exactly what the complainant could and could not do.

21. On August 20, 1998, Ms. Bruno sent the complainant a letter stating, in relevant part:

"Currently, your Family and Medical leave as well as your short term disability benefits are exhausted. Your doctor released you with restricted duties on July 28, 1998. We are currently waiting for a second medical opinion before you can return to work with no restrictions. . . ."

At about the time this letter was sent the complainant was placed on "inactive" status by the respondent.

22. The next medical opinion provided to the respondent was a report prepared by an independent medical examiner dated September 22, 1998. The report indicated that a functional capacity evaluation should be performed on the complainant, with and without splints, and stated that the complainant could perform work which was limited in terms of repetitiveness and weight ability if she were wearing splints.

23. In January of 1999 the complainant's physician prepared a medical report which was provided to the respondent and which indicated that the complainant had permanent restrictions of no repetitive pushing, pulling or turning of the wrists, no lifting more than 20 pounds, and no order filling.

24. The January 1999 doctor's restrictions rendered the complainant unable to perform her job for the respondent, and the respondent has no other warehouse work which falls within those restrictions.

2. Paragraphs 1 and 2 of the administrative law judge's CONCLUSIONS OF LAW are deleted, and paragraph 3 of the administrative law judge's CONCLUSIONS OF LAW is renumbered to paragraph 1.

DECISION

The decision of the administrative law judge (copy attached), as modified, is affirmed. The commission substitutes its own memorandum opinion for that of the administrative law judge.

Dated and mailed January 25, 2001
jonesre.rmd : 164 : 9

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

To prove disability discrimination under the Wisconsin Fair Employment Act (hereinafter "Act"), a complainant must first establish that she is an individual with a disability, 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 "individual with a disability" 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 test to determine whether an impairment makes achievement unusually difficult is concerned with the question of whether there is a substantial limitation on life's normal functions or on a major life activity. By contrast, the "limits the capacity to work" test refers to the particular job in question. Further, the inquiry concerning the effect of an impairment is not about mere difficulty, but about unusual difficulty. AMC v. LIRC, 19 Wis. 2d 706, 350 N.W.2d 120 (1984).

The complainant testified that she has carpal tunnel syndrome with symptoms including numbness in some of her fingers and pain shooting up her arms, and presented medical evidence in support of her diagnosis. Although some of the documents submitted by the complainant must be dismissed as hearsay, the record does contain competent medical evidence of the complainant's diagnosis. Along with her application for leave under the Family and Medical Leave Act, the complainant presented the respondent with a signed "Physician's Statement of Disability," in which her attending physician, Dr. Puccinelli, certified that she was hospitalized with bilateral carpal tunnel. In addition, the complainant submitted two different independent medical evaluations, both showing a diagnosis of carpal tunnel syndrome. As the administrative law judge noted in his decision, these reports, while not certified, had sufficient circumstantial guarantees of trustworthiness so as to fall under the hearsay exception contained in Wis. Stat. � 908.03(24). Under the circumstances, the commission is satisfied that the complainant submitted sufficient competent evidence to warrant a conclusion that she does indeed suffer from carpal tunnel syndrome, a condition which constitutes an impairment, within the meaning of the Act.

The evidence further supports a finding that the complainant's impairment limits her capacity to work. Because of the complainant's carpal tunnel syndrome she had various work restrictions in the last year of her employment, culminating in a medical leave of absence after her doctor imposed medical restrictions so limiting that they prevented her from performing key functions of her job. Where, as here, the complainant's impairment limits her capacity to work, she is considered to have a disability under the statute.

In concluding that the complainant is an individual with a disability, the commission is cognizant of the complainant's testimony that she has medical restrictions, but does not claim to be disabled. However, the complainant's perception of herself is not controlling in this matter -- the critical question is whether she satisfies the conditions to be considered an individual with a disability, as that term is defined in the statute. Where the complainant's doctors have diagnosed her with carpal tunnel syndrome, an impairment under the Act, and where the complainant's ability to perform her job was adversely affected as a result, the complainant is considered to be an individual with a disability without regard to her own characterization of her status.

The commission additionally notes that there is an alternate basis for finding that the complainant is an individual with a disability for purposes of the Act. The evidence in the record supports a conclusion that the respondent perceived the complainant as having an impairment that limits her capacity to work. The respondent acknowledged that it was aware the complainant had been diagnosed as having carpal tunnel syndrome, and it clearly knew that the complainant's health condition had an adverse impact on her ability to perform the job. No more is required for coverage under the Act.

Having concluded that the complainant is an individual with a disability, within the meaning of the Act, the question to decide is whether the respondent refused to provide her with a reasonable accommodation or otherwise discriminated against her based upon her carpal tunnel syndrome. The commission concludes that it did not. The evidence presented at the hearing failed to establish that the complainant was able to return to her job with or without an accommodation after her disability leave expired. While the restrictions contained in the July 28, 1998, doctor's excuse were not so limiting as to prevent the complainant from performing her job, the complainant advised the respondent that she had restrictions in addition to those set forth by her doctor, and the doctor's note indicated that further evaluation was recommended. The complainant was asked to submit a clarifying doctor's excuse, but did not provide anything prior to September of 1998, at which point an independent medical examiner prepared a report which was inconclusive as to what the complainant's work restrictions were and left doubt as to whether the complainant could perform her job. While the complainant did submit a more definitive physician's statement in January of 1999, that document set permanent restrictions on her ability to push, pull, or turn her wrists in a repetitive manner, precluded her from lifting in excess of 20 pounds, and prohibited her from performing the order filling function. Given those permanent restrictions, it does not appear that the complainant could perform her job, nor was it established that there was any other job available with the respondent that the complainant was physically able to perform. Under all the facts and circumstances, the commission sees no reason to conclude that the respondent discriminated against the complainant when it placed her on "inactive" status and declined to return her to work.

In her petition for commission review the complainant argues that some of the evidence she presented at the hearing was not referred to in the findings of fact and that this causes her concern. However, the complainant has failed to elaborate upon this assertion, and the commission has no specific indication as to what evidence the complainant believes should have been referenced in the findings of fact or why she believes the exclusion of such evidence adversely affected the outcome of her case. The commission also notes that the complainant's petition contains several factual assertions that were not made at the hearing and which are not part of the hearing record. Consequently, these assertions must be disregarded. Because the evidence that was adduced at the hearing failed to demonstrate that the complainant was discriminated against in the manner she alleged, the administrative law judge's dismissal of the complaint, as modified by the commission, is affirmed.

cc: Jody A. Ballmer

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