KIP D ERICKSON, Complainant

QUAD GRAPHICS INC, Respondent

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 agrees with the decision, except that it makes the following modification:

In paragraph 21 of the administrative law judge's FINDINGS OF FACT the phrase "Mr. Erickson asked Mr. Erickson" is deleted and the phrase "Mr. Litschauer asked Mr. Erickson" is substituted therefor.

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

Dated and mailed May 25, 2004
erickki . rsd : 164 : 9 

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

This appeal presents the question of whether the complainant met his initial burden of demonstrating that he is an individual with a disability, within the meaning of the Wisconsin Fair Employment Act (hereinafter "Act"). 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).

Did the complainant demonstrate that he has a physical or mental impairment which makes achievement unusually difficult or limits his capacity to work?

The complainant testified that on April 12, 2000, he sustained a back injury at work. He testified that, as a result of this injury, the muscles in his back area tightened up and spasmed, causing pain and inflammation. The complainant explained that he has had problems with pushing type repetitions and has had difficulty twisting, squatting, crouching and bending. He indicated that he experienced pain in the back area which slowed him down in doing his work and made it difficult to continue. The complainant testified that he has seen a variety of health care practitioners for back pain, and that he has been taking medication for pain control and for muscle tightness.

The complainant presented no medical evidence on his behalf, either in the form of physician testimony or competent medical records upon which a fact-finder could base a conclusion about the nature of his condition. While the complainant did present copies of work restrictions prepared by various physicians, it was stipulated at the hearing that these documents were submitted for the sole purpose of demonstrating what information was provided to the respondent and when, and not as proof of the underlying medical opinions or diagnoses.

The complainant's evidence is insufficient to establish that he has a physical or mental impairment which makes achievement unusually difficult or limits the capacity to work, within the meaning of the Act. The fact that the complainant was injured at work and suffers from back pain does not warrant a conclusion that he has a disability, absent any evidence as to the nature and extent of the impairment. Moreover, no evidence was presented regarding the permanency of the condition, and the commission is unable to make any conclusions as to whether the complainant's back problem was a permanent condition or a temporary one which could be expected to heal over time. The commission has consistently held that disabilities which are merely temporary do not fall within what is intended to be covered by the Act's prohibition on discrimination because of disability. See, for example, Lockington v. LaCrosse Rubber Mills (LIRC, April 8, 1981); Wollenberg v. Wedex, Inc. (LIRC, Nov. 8, 1991); Reinke v. Pick 'N Save Mega Food Centers (LIRC, Jan. 28, 2000); Falk v. WIPC, LLC (LIRC, Dec. 18, 2003).

The complainant's brief focuses primarily on the question of whether or not medical evidence is needed to establish a disability, or whether an individual may be competent to testify about his own disability. However, even if the commission were to decide that the complainant was competent to testify about his own medical condition and that no additional medical evidence was necessary, the fact remains that the complainant's testimony would not be sufficient to meet his initial burden where it was limited to a description of his symptoms and an explanation of the difficulties these symptoms posed with regard to his ability to perform the job. Such testimony, even if offered by a physician, would not establish an impairment within the meaning of the Act, where there is no indication as to what, if any, diagnosis was made, what the nature and extent of the condition is, or whether the condition is a permanent one.

Did the complainant demonstrate that the respondent perceived him as having an impairment?

Having concluded that the complainant failed to demonstrate he has a physical or mental impairment which makes achievement unusually difficult or limits his capacity to work, a question arises as to whether the respondent perceived him as having such an impairment. The commission does not believe the complainant demonstrated this was the case. The respondent's witnesses, Dave Litschauer, its building manager, and Mary Jane Palmer, its worker's compensation coordinator, did not acknowledge that they considered the complainant to have an impairment or permanent disability, and their testimony indicates that they were aware of the independent medical examiner's opinion to the contrary. While the complainant's doctors' restrictions were not admitted as proof of the underlying facts, they do establish what the respondent was told by the complainant, and they demonstrate that the respondent received contradictory information regarding the complainant's restrictions and the extent and nature of his back problem. It is difficult to argue that the respondent perceived the complainant as being disabled where it received extremely contradictory information about his condition, and where its own physician advised it he was not. Although the respondent's witnesses evidently believed the complainant had some sort of back condition, based on his repeated insistence that he had work restrictions and had difficulty performing the job, there is nothing to indicate that they considered this condition to constitute an impairment, within the meaning of the Act. To the contrary, the evidence suggests that the respondent believed the complainant suffered from a temporary back injury, which had not yet healed. Indeed, Ms. Palmer testified that, when the respondent met with the complainant in July of 2000 to discuss the independent medical examiner's opinion, the complainant repeatedly insisted that he would have been healed by that time if he had taken more time off or had worked a desk job. This statement would have justifiably led the respondent to conclude that the complainant's back problem, while causing him difficulties at the time, was but a temporary one.

In his brief to the commission the complainant argues that he established he sustained a job-related injury in April of 2000, and that the respondent did not dispute medical assessments that his back problems limited his capacity to work until July 19, 2000, the date on which its physician examined him. The complainant states that the record makes it clear that his back injury did make achievement unusually difficult and severely limited his capacity to work, at least for a three-month period following his accident. However, the fact that the respondent believed he was limited in his ability to work for a three-month period suggests only that it viewed him as being temporarily disabled following his injury, and does not indicate that it perceived him as having an impairment as defined in City of La Crosse, 139 Wis. 2d 740.

The complainant also points out that one of the respondent's witnesses testified that the only reason he ceased to accommodate the complainant was that accommodations were only for temporary restrictions. The complainant suggests that this testimony supports an inference that the respondent perceived that the complainant had permanent restrictions and was, therefore, disabled. However, while an employee's request for permanent restrictions may lead an employer to perceive that he has a disability, such request does not compel a conclusion that the respondent viewed him as permanently disabled, and for the reasons set forth above, the commission is unpersuaded this was the case.

Because the commission agrees with the administrative law judge that the complainant failed to demonstrate he has a disability, within the meaning of the Act, such as would have triggered a duty to accommodate on the part of the respondent, the dismissal of his complaint is affirmed.

cc: 
Attorney John S. Williamson, Jr.
Attorney Thomas W. Scrivner

Appealed to Circuit Court. Affirmed October 27, 2004.  Appealed to the Court of Appeals.  Affirmed, sub nom. Erickson v. LIRC and Quad Graphics , 2005 WI App 208, 704 N.W.2d 398.

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