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


DOUGLAS LEE, Complainant

DANE COUNTY HIGHWAY DEPARTMENT, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 9201823


This case presents the question of whether the respondent, Dane County Highway Department, violated the Wisconsin Fair Employment Act's prohibition against disability (1) discrimination when it placed the complainant, Douglas Lee, on disability leave in October 1991, and refused to return him to his position as highway laborer. Previously in this case the commission had affirmed an administrative law judge's dismissal of Lee's complaint, ruling under then prevailing law that Lee's claim of disability discrimination was barred by the Workers' Compensation Act's exclusivity provision. Wis. Stat., 102.03(2). Lee then petitioned for a review in circuit court. While the case was pending in court, the supreme court held in a separate case issued on April 18, 1997, that the exclusive remedy provision of the Workers' Compensation Act did not bar a claim under the Fair Employment Act where the facts that are the basis for the discrimination claim might also support a workers' compensation claim. Byers v. LIRC et al. 208 Wis. 2d 388, N.W.2d (1997).

After the ruling in Byers, the circuit court reversed the commission's decision dismissing Lee's complaint of disability discrimination and remanded the matter for further proceedings consistent with the court's decision in Byers. Following the court remand the respondent requested an opportunity to submit written arguments regarding the case. A briefing schedule for submission of written arguments was then established with the understanding that there was no objection to the commission issuing a decision on the merits in this matter.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted in this case. Based on the applicable law, records and evidence in this case, the commission makes the following:

FINDINGS OF FACT

1. Douglas Lee commenced employment with the Dane County Highway Department as a highway laborer beginning in October 1989. When he applied for employment with the respondent, Lee indicated on his application for employment that he was a veteran with a disability traceable to war service. Lee informed Highway Commissioner John Norwell that his disability related to his back and was advised by Norwell that his hire would be made contingent upon his successfully passing a physical examination. Lee was referred for an independent medical examination at Chiron, LTD, where he was seen by Dr. Paul Peterson. In his September 6, 1989 written report to the respondent, Dr. Peterson noted that Lee's problems with his back began while in Thailand in 1975 when he fell off of the back of a truck directly on his buttocks. Further, Dr. Peterson noted that Lee was able to go back to work approximately one month after his initial injury, that he had a permanent partial disability of 40 percent, that he had gone back to work in heavy labor type jobs including heavy equipment operator and at times even loading and unloading semi-trailers, and that he does not have night pain on a regular basis.

2. Dr. Peterson came to the following conclusions about Lee's back condition and its relationship to his ability to carry out the duties and responsibilities of a highway laborer:

"...His work history has not been affected by his injury. His clinical examination is normal from an orthopedic standpoint with special reference made to his low back examination. Radiographic findings are abnormal to a moderate degree with degenerative disc disease being present at the L4-5 intervertebral space.

With regard to the patient's ability to perform the duties described under the job description of highway laborer for Dane County Highway Department it is my opinion that he would be able to perform these job activities without difficulty. I am unable to prognosticate with certainty as to whether these activities would lead to his disability in the future, given the radiographic findings presently noted in his lumbar spine. I would say, however, that he is at a higher risk than the general population for contracting low back pain given his prior history, and his present x-ray findings."

3. Based upon Dr. Peterson's evaluation, Lee was hired to work as a highway laborer.

4. Highway laborers are assigned to crews which perform various tasks involving maintenance and repair of county roads and highways. This work is described as heavy manual labor. The nature of the work performed varies depending on the season. During the spring, summer and fall seasons, the work is primarily geared to the maintenance of roads and highways. During the winter months highway laborers are assigned to a fixed outlying shop where they serve as backup to the regular patrolmen performing salting and snow plowing operations. When not plowing laborers perform other duties such as cutting and removing brush, tree trimming and laying asphalt.

5. Lee was assigned to a number of work crews at the respondent, including the bridge crew, a rubbering crew, a pavement repair crew, a guard rail repair crew and a construction crew. Lee built wooden forms for concrete culverts when on the bridge crew. This work required lifting of the wooden forms, and he was frequently required to be on his hands and knees. When on the rubbering crew Lee's duties included lifting 60-pound boxes of rubber, operating an air compressor or the rubber machine, or using a squeegee to level the rubber placed in pavement cracks. When on the pavement repair crew Lee operated a hammer drill weighing at least 60 pounds to drill holes in slabs of concrete that were to be removed. On the guard rail crew he lifted out old guard rail posts and replaced them with new ones, and he removed and installed new 12-foot guard rail sections. The guard rails were said to weigh 50 pounds. New guard rail posts were thought to weigh 40 to 50 pounds, while old waterlogged posts weighed more. Lee was assigned to the county garage in Stoughton during the winter months. In addition to the lifting stated above, the physical activity in all of Lee's job assignments involved repetitive bending and twisting.

6. Over the course of two years Lee's back condition never gave him any problems in carrying out any of the responsibilities on the crews that he was assigned. He never turned down any assignment given him because of his back condition nor did he ever suffer any injury to his back in carrying out any of his assigned duties and responsibilities. Testimony by highway department crew leaders, who were responsible for supervision of the highway laborers, confirms Lee's work performance and ability to do the work.

7. While at work on August 7, 1991, Lee was not looking at where he was going while talking to a crew leader and walked right off the end of an eight inch walkway, landing on his tailbone. There was no showing that Lee's degenerative disc condition had caused him to slip and fall. Lee continued on to work that day without any difficulty but he stiffened up later that evening. Lee sought medical treatment the next day.

8. Two weeks later, Lee was released by a physician to return to light duty work with a 20-pound lifting restriction. Apparently because no permanent work restrictions had been placed on Lee the respondent provided him a temporary assignment to work in a janitorial position. However, Lee was not able to handle this work so soon following his injury and presented a medical excuse releasing him from work. Over the next several weeks Lee saw a number of other physicians, including doctors Brian Bohlmann, Werner Langheim, John Woodford, William LaJoie and Fred Kriss, regarding his back. At some point after his injury Lee began receiving workers' compensation benefits.

9. The respondent arranged for Lee to see an independent medical examiner on October 9, 1991. This medical examination was performed by Dr. William LaJoie. The following are excerpts from Dr. LaJoie's written report to the respondent dated October 14, 1991:

"New x-rays of the lumbar spine, dated 10/9/91 were compared with those taken on 9/5/89. In these films, the iliac crest was level and there were no degenerative changes noted in the sacroiliac joints. There is marked narrowing between L4-5 and moderate narrowing of the L5-S1 but these changes are exactly the same in 1991 as those noted in 1989. There is also noted slight retrolisthesis of L5 on S1 and a slight forward listhesis of L5 in relationship to L4 which undoubtedly is associated with the degenerative disc disease seen at L4-5. The sclerotic changes in the facet at L5-S1 were also noted in both films. There was no change over the two year period.
...
It is my impression that the patient sustained a lumbar strain as a result of the accident of August 7, 1991 along with some aggravation of his underlying degenerative arthritis problem but there is no evidence of his degenerative arthritic problems being any different radiographically today than in 1989. In reviewing both sets of films, there appears to be some spondylolisthesis of the 5th lumbar vertebra, mild in degree, with marked narrowing and marked degenerative changes, particularly of the L4-5 disc....

It is my impression that his continued symptomatology is directly related to the degenerative arthritic changes in his spine which was a pre-existing condition...

I believe that the patient's arthritic condition is permanent and can be expected to give him symptoms in the future regardless of the incident of August 7, 1991. It is also my feeling, to a reasonable degree of medical probability, that he can get relief from his back symptoms by wearing a high, well-fitting lumbosacral corset support with two pair of posterior rigid stays and temporarily taking some analgesic medications. I believe these symptoms will subside. Clearly, his symptoms are related somewhat to the old injury and was a pre- existing condition...

In reviewing the patient's job description as a highway laborer, it appears that the patient's job description would require repetitive bending, lifting of at least 100 pounds, and twisting. From this job description, I can state that he will not be able to perform all of the duties of a highway laborer. Further, in my opinion the patient is not a suitable candidate for this job considering the condition of his spine in 1989 and I would have to disagree with his examiner at that time that the patient would be able to perform all of his duties "without difficulty."

Relative to the degenerative arthritis in his spine that he had in 1989, I would state that he should refrain from repetitive bending, lifting and twisting and should not do any lifting or carrying over 50 pounds. If he can be utilized with these restrictions, then he could return to his job wearing a lumbosacral corset support and he could return as soon as he obtains the lumbosacral corset support. These restrictions are permanent and are not based on the incident of August 7, 1991 but are based on the radiographic findings of 1989. Although the patient did sustain a back strain as a result of his fall, there is not evidence to indicate that this incident would increase his disability beyond what would (sic) he already has.

SUMMARY

Relative to effects and results of the August 7, 1991 injury/disease, the following opinions are offered to a reasonable degree of medical probability.

DATE OF INJURY: 8/7/91

DIAGNOSIS OF RESULTS FROM INJURY: Lumbar strain.

EFFECT ON PROGRESSION RATE OF PRE-EXISTING DISEASE/DISORDER: None documented.

PERMANENT PARTIAL DISABILITY: None relative to the injury of 8/7/91....

WORK RELATED: Yes, lumbosacral strain.

HEALING PLATEAU DATE: A healing plateau date has been reached as of 10/9/91.

NECESSITY FOR PAST TREATMENT: Yes.

NECESSITY FOR FUTURE TREATMENT: None relative to the event of 8/7/91

WORK RESTRICTIONS (WORK RELATED): None relative to the event of 8/7/91 but he definitely has work restrictions relative to the degenerative arthritic process in his back being from 1989 which involves no repetitive bending, lifting, twisting or carrying over 50 pounds. These are all related to the degenerative arthritis.

COMMENTS: I believe the patient quite possibly could fulfill some of his work duties. If he is assigned to the duties that are within his restrictions, he should wear a lumbosacral corset support with two pair of posterior rigid stays. I would anticipate that his symptoms coming from his degenerative arthritis will subside with time."

(bold text added).

10. In another written report to the respondent dated October 17, 1991, Dr. Fred Kriss, who Lee had gone to see because he had not been comfortable with Dr. Woodford's suggestion that he have a myelogram, noted that it would be his recommendation that Lee train for work with the respondent that "does not involve heavy shoveling, jackhammers and heavy labor."

11. There was no medical proof which established that Lee's degenerative disc or arthritic disease would be aggravated or accelerated by his performance of heavy work involving repetitive bending, twisting or lifting, however.

12. On October 23, 1991, Barbara Wegner, the respondent's risk manager, sent a letter to Lee stating that Dr. LaJoie believed he had reached a healing plateau on October 9, 1991, and as a result his workers' compensation benefits were discontinued as of October 10, 1991. (2) Further, noting that LaJoie had stated that Lee should not perform any work involving repetitive bending, lifting, twisting or carrying over 50 pounds, Wegner stated that the respondent could not accommodate him with those restrictions. Wegner advised Lee that based upon a discussion with John Norwell and Harriet Rowland (personnel manager), it was her recommendation that he contact Rowland to explain the options that were available to him.

13. At this time the respondent had an unwritten policy with respect to the Highway Department that an individual with a lost time workers' compensation injury have a minimum 50 pound lifting capacity and no other restrictions in order to be brought back to work.

14. Crew leaders for the respondent testified that they were able to accommodate individuals with physical disabilities by assigning them to tasks consistent with their physical restrictions. Bridge crew leader, Patrick Doyle, testified that he has always been able to find work for employes who had some sort of disability, whether it be temporary or otherwise. John Bailey, the pavement repair and guard rail crew leader, testified he had employes with physical limitations and that he had been able to find work for them consistent with their limitations.

15. On October 25, 1991, Lee, Lee's wife and Tim Sullivan, President of AFSCME Local 65, met with both Wegner and Rowland. Lee was presented with a copy of LaJoie's report, and informed that the respondent had no position for him, that there was no room for accommodations at that time and that he should go to the unemployment office. Apparently, on October 30, 1991, Rowland had Lee sign a request for a leave of absence, without pay, so that his status as an employe would be preserved as provided under the collective bargaining agreement between the respondent and AFSCME Local 65. Norwell and Rowland approved a 6 month leave of absence for Lee effective from October 24, 1991, until April 24, 1992.

16. During the meetings with management officials of the Highway Department Lee questioned why so much emphasis was being placed on Dr. LaJoie's report rather than that of Dr. Peterson. Further, he stressed that he had performed the job of laborer for two years, and noted that even Dr. LaJoie's report indicated that all of his findings showed that everything was the same as it had been in 1989.

17. Under the collective bargaining agreement between the respondent and Lee's union, upon presentation of a satisfactory physician's release during the first six months of the leave of absence, an employe has the right to return to his or her former position. If unable to return to work at the end of that six month period, the employe is placed on layoff status for an additional eighteen months. If the employe has still not returned to work at the end of the eighteen month period, the employe's employment is terminated.

18. Apparently sometime in December 1991 Lee contacted the county executive's office expressing an interest in returning to work. Helene Nelson, then director of administration, at the county executive's request, then talked to Wegner and Rowland, encouraging them to make an offer of employment to Lee to return to work in a job that he could do. Norwell proposed to union president, Sullivan, that Lee work in a dispatch position where he would be called in as needed when it snowed. This work was normally performed for overtime pay by crew leaders. Sullivan advised Norwell that this would have created problems within the bargaining unit and caused turmoil.

19. Also during the winter of 1991-92, the respondent raised the possibility of work as a clerk-typist for Lee. Norwell indicated that he suggested this position for Lee with the idea that Lee would not have to do any typing but could fill out forms in longhand, or he could receive training in typing. Lee turned down this position for a number of reasons, including his lack of clerical skills, lack of knowledge of office work, and his lack of interest in clerical work. The record also shows that the clerk-typist position was in a different union, that permission had to be obtained from this other union to allow the position to go to someone from a different bargaining unit and that at the time there was some friction that existed between the two bargaining units.

20. On April 22, 1992, two days before Lee was to be placed on layoff status, Lee was examined by Dr. Woodford. On that same day, Dr. Woodford wrote a letter to Lee's attorney stating, in part:

"I believe (Lee) is able to return to his original work position without restrictions on a trial basis. Whether any additional permanent-partial disability will be realized from his August 7th injury is yet to be determined on the basis of his ability to return back to work.

My last visit with him was on December 5, 1991. On the basis of his improvement to date, it is quite possible that in the interim he may have been able to go back to work earlier than present. He has recently been working at a different job without difficulty."

21. In a letter dated July 17, 1992, responding to an inquiry by the secretary of Local 65 as to why Lee had not been returned to work, Wegner stated that Lee's back restrictions "were permanent and will not improve over time."

22. During the period from late March 1992 until early April 1993, Lee obtained employment driving a tractor-trailer for the Hackl Transportation Company, delivering petroleum for Cenex and driving a tractor-trailer for Oscar Mayer. Lee's duties at Hackl Transportation included lifting tarps weighing 100 to 125 pounds that were affixed to loads, using chains weighing 50 to 70 pounds to secure loads and changing tires. At Cenex his work involved maneuvering heavy 25 to 40 foot hoses. At Oscar Mayer Lee's duties included unloading cases of product weighing from 20 up to 60 pounds. The duties associated with each of these positions involved repetitive lifting, bending and twisting. Lee's back condition did not interfere with his ability to carry out his duties in these positions.

23. Lee's union filed a grievance on his behalf on November 18, 1992, alleging a violation of the collective bargaining agreement by the Highway Department because the Highway Department would not allow Lee to return to his job despite Dr. Woodford's belief that Lee could return to his original position without restrictions. Prior to receiving the grievance the Highway Department had not known about Dr. Woodford's April 22, 1992 letter.

24. By letter dated January 5, 1993, the Highway Department offered Lee several work options, but he ultimately chose not to accept them.

25. On November 8, 1993, the Highway Department notified Lee that his employment was terminated effective October 24, 1993, since he had not returned to work per section 13.01 of the collective bargaining agreement.

26. In a decision issued on March 30, 1994, Arbitrator Zel Rice dismissed Lee's November 1992 grievance, finding that the Highway Department had not violated the collective bargaining agreement in placing him on disability leave in October 1991 because Lee had not presented a satisfactory physician's statement of release for work prior to being placed on a disability leave. Arbitrator Rice's decision was based on a specific finding that 13.03(a)3 of the collective bargaining agreement required Lee to provide a release to work from his physician before the respondent was required to reinstate him.

27. Lee's discharge, effective October 24, 1993, was also the subject of a grievance filed by Lee and the union on November 11, 1993. In a decision issued on October 16, 1995, Arbitrator Stanley Michelstetter II concluded that the Highway Department had violated the collective bargaining agreement because it did not have just cause for terminating Lee's employment. Arbitrator Michelstetter directed that Lee be reinstated to his highway laborer position and made whole for all lost wages and benefits from December 9, 1991, to the date of reinstatement (3). Arbitrator Michelstetter found there had been a violation of the contract, despite recognition of the respondent's concern that neither Lee nor his counsel had submitted a release until November 1992, stating, in pertinent part, as follows:

"I am satisfied that the Employer never intended to permit Lee to return to his former position because of Dr. LaJoie's conclusions about his pre-existing disability. This position tended to be a constructive discharge, and, in fact, resulted in his discharge in violation of the collective bargaining agreement...."

28. Michelstetter's award was confirmed on appeal by the circuit court. The court of appeals affirmed Michelstetter's conclusion that Lee had not been discharged for just cause, but reversed and vacated the remedy as it related to payment for lost wages and benefits prior to November 18, 1992, the date on which Lee first provided the release to work required under the collective bargaining agreement. Dane County v. Dane County Union Local 65, 210 Wis. 2d 268, N.W.2d Ct. App. 1997). The court of appeals concluded that Michelstetter was barred from awarding Lee lost wages and benefits prior to November 1992 because it was contrary to Arbitrator Rice's previous award, which concluded that the respondent had not violated the collective bargaining agreement in placing Lee on disability leave in October 1991 because he had not presented a satisfactory physician's statement of release prior to being placed on disability leave. (4)

29. Lee has stated in his written arguments to the commission that pursuant to Michelstetter's Arbitration Award he was restored unconditionally to his employment as a highway laborer in June 1997, although a complaint is pending before the Wisconsin Employment Relations Commission alleging that the Highway Department has failed to comply with all of the terms of that award, and that he continues to be employed as a laborer.

Based upon the above FINDINGS OF FACT, the Labor and Industry Review Commission makes the following:

CONCLUSIONS OF LAW

1. The respondent, Dane County Highway Department, is an employer within the meaning of the Wisconsin Fair Employment Act.

2. The complainant, Douglas Lee, has degenerative disc disease or arthritis at the L4-5 interval space of his back.

3. The respondent discriminated against Lee on the basis of perceived disability when it placed him on disability leave and refused to return him to his position of highway laborer.

4. The respondent failed to prove by a preponderance of the evidence that Lee's degenerative disc disease or arthritis was reasonably related to his ability to adequately perform the duties of a highway laborer.

5. Assuming for purposes of argument that Lee's back condition was reasonably related to his ability to adequately perform the duties of a highway laborer, however, the respondent failed to prove by a preponderance of the evidence that it could not have reasonably accommodated his disability without posing a hardship on its operation.

6. The respondent discriminated against Lee on the basis of perceived disability in violation of the Act when it placed him on disability leave and refused to return him to his position as highway laborer.

Based upon the above FINDINGS OF FACT and CONCLUSIONS OF LAW, the Labor and Industry Review Commission issues the following:

ORDER

1. That the respondent cease and desist from discriminating against Lee on the basis of perceived disability.

2. That the respondent reinstate Lee as a highway laborer effective from December 9, 1991, and make him whole by providing him all lost wages, benefits, seniority and other privileges that he would have enjoyed absent the respondent's unlawful discrimination.

3. That the back pay ordered herein be computed on a calendar quarter basis, with reductions on a quarterly basis for interim earnings, including any back pay, benefits, etc., that he has received under the arbitration award made by Stanley Michelstetter II. Also, any amounts that Lee received as unemployment insurance or welfare payments shall not reduce the back pay otherwise allowable, but shall be withheld from Lee and immediately paid to the unemployment reserve fund, or in the case of welfare payments, to the welfare agency making the payment. (Reimbursement for unemployment insurance shall be in the form of a check made payable to the Department of Workforce Development, Unemployment Insurance Division, and show Lee's social security number and the ERD case number.) Additionally, the amount payable to Lee after all statutory setoffs shall be increased by interest at the rate of 12% per annum, simple interest. The interest is to be computed by calendar quarter, figured from the last day of each calendar quarter to the date payment is made. The sum of the net back pay plus interest owed for all calendar quarters shall constitute the total back pay owed to Lee.

4. The respondent shall also pay Lee for reasonable attorney's fees and costs incurred in pursuing his complaint of discrimination under the Fair Employment Act. The payment for attorney's fees shall be paid by check made jointly payable to Lee and his attorney, Bruce F. Ehlke.

5. Within 30 days of the expiration of time within which an appeal may be taken herein, the respondent shall submit a compliance report detailing the specific action it has taken to comply with the commission's decision. The compliance report shall be directed to the attention of Kendra DePrey, Labor and Industry Review Commission, P.O. Box 8126, Madison, Wisconsin 53708.

Dated and mailed: July 24, 1998
leedoug.rrr : 125 : 9

/s/ David B. Falstad, Chairman

Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

Under the Wisconsin Fair Employment Act, the complainant has the initial burden of proving that he is disabled within the meaning of the Act, and that an employer's discrimination was on the basis of such disability. Racine Unified School Dist. v. LIRC, 164 Wis. 2d 567, 598, 476 N.W.2d 707 (Ct. App. 1991). The Act defines a disabled (5) 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." Wis. Stat. 111.32(8). Where the complainant has satisfied his initial burden of proving that he is disabled and that the employer's discrimination was on the basis of such disability, the burden shifts to the employer to prove that the complainant's disability is reasonably related to his ability to adequately undertake the job-related responsibilities of his employment. Id. Further, assuming that the employer proves that the complainant's disability is reasonably related to his ability to adequately undertake the job-related responsibilities of his job, the Act requires that an employer reasonably accommodate an employe's disability unless the employer can demonstrate that the accommodation would pose a hardship on the employer's program, enterprise or business. Wis. Stat. 111.34(1)(b); McMullen v. LIRC, 148 Wis. 2d 270, 274, 434 N.W.2d 830 (Ct. App. 1988).

The Highway Department argues that Lee was not disabled within the meaning of the Act because his back condition in October 1991 was only a temporary condition and therefore not a disability under the Act. Further, the respondent argues that it did not perceive Lee as disabled since it only considered Lee to be unqualified on a temporary basis. In support of this position, the respondent cites evidence such as Dr. LaJoie's October 14, 1991 report comment that he anticipated that Lee's symptoms coming from his degenerative arthritis would "subside with time," and Dr. Woodford's September 1991 medical report comment that he believed Lee's condition was most likely that of musculoskeletal pain with "sacroiliac area sprain or strain." The respondent asserts that upon receipt of these reports Lee was placed on a disability leave of absence and told that by providing a release he could return to work.

The respondent's argument does not withstand scrutiny. While the respondent may have considered Lee's August 7, 1991 injury to have been temporary, the evidence is sufficiently clear that it was Lee's degenerative disc disease or arthritis, a permanent condition that he had prior to beginning employment with the respondent, and not his August 7 injury, that caused the respondent to place him on disability leave. In his October 14, 1991 report to the respondent, Dr. LaJoie found that Lee had no work restrictions relative to the August 7, 1991 injury, but definitely had work restrictions relative to the degenerative arthritic process in his back from 1989 which involves no repetitive bending, lifting, twisting or carrying over 50 pounds. Further, Dr. LaJoie concluded that in his opinion "the patient is not a suitable candidate for this job considering the condition of his spine in 1989 and that I would have to disagree with his examiner at that time that the patient would be able to perform all of his duties `without difficulty.'" (bold emphasis added)

After receiving Dr. LaJoie's report, Barbara Wegner stated in a letter to Lee dated October 23, 1991, that "Dr. LaJoie...feels that you have work restrictions relative to the degenerative arthritic process in your back and stated that you should not perform any work involving repetitive bending, lifting, twisting or carrying over 50 pounds," and recommended that he contact Harriet Rowland. On October 25, 1991, Lee met with Wegner and Harriet Rowland where he was presented with a copy of Dr. LaJoie's report and advised that they had no position for him, that there was no room for accommodation at that time and that he should go to the unemployment office. Thereafter, in a letter dated July 17, 1992, responding to an inquiry by the secretary of Union Local 65 as to why Lee had not been returned to work, Wegner stated that Lee's restrictions were "permanent and will not improve over time," and that his doctor had recommended that he find a new job. Further, still quoting from Dr. LaJoie's report, she stated that the restrictions imposed by Dr. LaJoie that Lee should refrain from any repetitive bending, lifting and twisting or carrying over 50 pounds were "permanent restrictions and not based on Lee's August 7, 1991 incident but on radiographic findings of 1989." (emphasis in original)

The evidence simply does not support the respondent's claims that it believed Lee's back condition to be a temporary condition and that it intended to return him to his highway laborer position. The evidence indicates that pursuant to Dr. LaJoie's report the respondent perceived Lee as having permanent bending, twisting and lifting restrictions based upon his preexisting back condition, and that he should not be employed as a highway laborer.

The respondent argues, however, that even if it were assumed that Lee was disabled and that the county's action was based on his disability, its actions would not have violated the Act because it is not employment discrimination because of disability to refuse to hire, employ or terminate an individual if the disability is reasonably related to the individual's ability to adequately undertake the job-related responsibilities of his employment. The respondent argues that there can be no doubt that Lee cannot fulfill the duties of a highway laborer's job, since a laborer's job is heavy manual labor and that repetitive bending, twisting and lifting is the essence of that job. Further, it argues that the ability to fulfill the job duties of a particular position includes the ability to do so without a reasonable risk of harm.

There was conflicting medical evidence regarding Lee's ability to adequately undertake the job-related responsibilities of a highway laborer. Where there is conflicting medical evidence, the commission conclusively determines which view of the evidence it will accept. Valadzic v. Briggs & Stratton Corp., 92 Wis. 2d 583, 598, 286 N.W.2d 540 (1979). Further, the mere fact that the respondent has based its employment decision in reliance upon the opinion of a doctor does not protect the employer from a finding of discrimination. Bucyrus-Erie Co. v. ILHR Dept., 90 Wis. 2d 408, 423-424, 280 N.W.2d 142 (1979).

Arbitrator Stanley Michelstetter had the benefit of testimony from both Dr. LaJoie and Dr. Woodford regarding Lee's ability to work at the arbitration hearing. (Dr. Woodford's short deposition testimony in Lee's equal rights case was also before the commission.) The following is an excerpt from Michelstetter's decision regarding the testimony from these two doctors:

"When Dr. La Joie testified at the arbitration hearing before me, he stated that Lee's condition was worse than it had been in 1989, and that that aspect of his report (October 1991 report) was in error. I don't believe that there is anyway that this conflict is entirely an error. Instead, I conclude that this is an example of Dr. La Joie tailoring his report and testimony to rationalize his personal conception of what is beneficial for Lee.

Dr. La Joie was the only medical expert to do a comparative study of Lee's 1989, X-rays and his more recent X-rays. Thus, it is possible that Lee's condition is somewhat worse than it was in 1989. However, I cannot believe that if Lee's condition were worse than expected or unusually worse that he would have written the report in the manner that he did. Dr. Woodford, the Union's medical expert, did not do a historical study of the earlier X-rays. However, he did not treat Lee's degenerative condition with the alarm Dr. La Joie did. Specifically, he did say that the nature of Lee's condition was not out of the ordinary for his type of condition. (See, for example 10/27/94 tr. p. 98 and 109.) Further Lee's work history prior to the August, 1991 injury does not demonstrate a deteriorating condition. There is no history of increasing back- related absences. Similarly, Lee has testified that he has had some employment requiring bending, twisting and lifting consistently on some days when he makes deliveries. This would suggest that he has not demonstrated an unusual decline. Thus, the Employer has failed to show that Lee's condition has declined more than could reasonably have been expected when he was hired or has had an unusually severe decline.

I also conclude that the Employer has not demonstrated that Lee is at an unreasonably high level of risk for injury to himself. The operative part of Dr. La Joie's opinion rested upon his assertions that if Lee continues in his employment he is: 1. Likely to have severe and disabling back pain within a year as a result of his deformities; 2. he is at heightened risk for injury to his back because the disc spaces are narrowed and/or weakened; 3. the repetitive bending, twisting and lifting essential to the laborer position will effectively wear out the narrowed disc/s in his back; and, 4. Certain tasks of a laborer represent a higher risk of jarring which presents a separate serious danger to his back.

One of the core assertions Dr. La Joie made was his assertion that repetitive bending, twisting & lifting would only aggravate and accelerate his back problem by tending to traumatize his weakened back structure. Dr. La Joie did not state whether he based this upon his experience or upon medical statistics. Dr. Woodford essentially agreed with this position that that work would not do his back any benefit, but he disagreed that there was any demonstrated cause and effect between that work and further deterioration of the back. He credibly testified that there were no medical statistics supporting the view that heavy work accelerated degenerative disk disease or arthritis. If Dr. La Joie's opinion is based upon his personal experience with other patients, then the worth of this testimony must be based upon the best available objective evidence as specified in the rule cited above. The best available objective evidence is the fact that Lee had worked two years in his laborer position and the credible evidence in this case is that his back did not deteriorate in an extreme or unexpected way. Further evidence is that he has, on occasion, engaged in heavy labor since his injury and he has not suffered disabling effects. I don't believe this assumption by Dr. La Joie is reasonable on the facts of this case. One of the serious difficulties with his report is that he did not seriously evaluate or consider the fact that Lee did work in this position.

Dr. Woodford agreed that Lee is at an increased risk for back pain, but characterized that risk as a risk of mere discomfort. He testified that there was a poor statistical correlation between the level of pain people experienced and X-ray findings similar to Lee's. In other words, some people have these deformities and show no ill effects doing heavy work, while others do. Dr. Peterson's position was the same as Dr. Woodford's. Dr. La Joie based his predictions solely upon his X-ray findings and did not consider Lee's long work history. Lee's work history makes Dr. Woodford's position on this point far more credible.

Michelstetter Arbitration decision, pp. 19-21

Michelstetter's recounting of the testimony Drs. LaJoie and Woodford presented regarding Lee's back condition at the arbitration hearing supports a determination that it has not been established that Lee's back condition is reasonably related to his ability to adequately undertake the job-related responsibilities of the position of highway laborer.

Equally supportive of the fact that his back condition was not reasonably related to his ability to work as a highway laborer is the fact that Lee's work history of performing heavy labor jobs had not been affected after his fall in 1975, that Lee had performed the job of highway laborer without injury to his back for nearly two years, and the fact that after his fall in August 1991, Lee had continued to be engaged in work involving repetitive bending, twisting and lifting of over 50 pounds without experiencing any problems because of his back condition. Furthermore, since even Dr. LaJoie had concluded in his October 1991 report that there was no evidence that Lee's degenerative arthritic problems were any different radiographically in October 1991 than in 1989, it is reasonable to conclude that Lee's back condition was not reasonably related to his ability to adequately undertake the job responsibilities of a highway laborer.

The respondent cites Bucyrus-Erie Co., asserting that the ability to fulfill the job duties of a particular position includes the ability to perform the job duties without a reasonable risk of harm. While Bucyrus-Erie holds that safety with regard to both the disabled employe's future health and safety and others must be accorded some recognition, the court makes clear that in order to avoid a finding of discrimination the employer must establish to a reasonable probability that because of the employe's physical condition, employment in the position sought would be hazardous to the employe's health or safety or to other employes or frequenters of the place of employment. The Highway Department has not met that burden, however.

Relying on a number of cases arising under the Americans with Disabilities Act where the plaintiffs had not provided the employer with a physician's release to return to work and no violation of the ADA had been found, the respondent asserts that the underlying concern in these cases was akin to the concern announced in Bucyrus-Erie Co. v. DILHR, 90 Wis. 2d 408, 280 N.W.2d 142 (1979), that is, that to allow an employe to return without an appropriate release could subject the employe, the co-workers, and/or the company to some degree of harm.

These cases do not support the respondent's claim here. In Kolpas v. G.D. Searle & Co., 959 F. Supp. 525 (N.D. Ill. 1997), the employer's motion for summary judgment was granted because the plaintiff had failed to establish that she was an individual with a disability protected by the ADA, and because even if she had, she had not shown sufficient evidence of discrimination because of her alleged disability. In Derbis v. U.S. Shoe Corp., 3 AD Cases 1029 (D.C. Md. 1994), the employer's motion for summary judgment was granted because the only medical evidence that existed, which was presented by the plaintiff herself, showed that the plaintiff could not perform the "essential functions" of her job with or without reasonable accommodation. In Morton v. GTE North Inc., 5 ADA Cases 524 (N.D. Tex. 1996), the plaintiff, who had a history of depression and had threatened suicide at work, was granted a short term disability leave (STD) based upon her physician's certification that she was unable to perform her job for an undetermined length of time, and the physician never supplied the employer with a release during her STD. The plaintiff argued that the employer should have accommodated her further by providing her with a transfer or a more structured work setting but the court found that it would not have been reasonable for the employer to grant a transfer or offer a restructured job during the plaintiff's STD without a release from her physician.

It must be remembered in the instant case the burden of proving that Lee could not fulfill the duties of a highway laborer falls on the Highway Department because it was the Highway Department that placed him on disability leave and refused to return him to his position as a highway laborer. Moreover, unlike the above cases, in the instant case the October 14, 1991 IME report of Dr. LaJoie, the very physician in whom the respondent placed primary reliance to support placement of Lee on disability leave because of his back condition, found Lee's back condition to be in the same physical condition as of that date as it had been prior to his nearly two years of employment with the respondent. And, as noted by Arbitrator Michelstetter, Dr. LaJoie failed to validate his central assertion that repetitive bending, twisting and lifting would aggravate and accelerate Lee's back problem by tending to traumatize his weakened back structure, while Dr. Woodford credibly testified that there were no medical statistics to support the view that heavy work accelerated degenerative disc disease or arthritis.

Finally, even assuming there may have been some merit to the work restrictions Dr. LaJoie recommended for Lee, the evidence indicates that the respondent failed to consider any accommodation that would have permitted him to continue his employment as a laborer, and that the respondent could have reasonably accommodated Lee's handicap without posing a hardship on its operation.

When Lee met with the respondent's management officials on October 25, 1991, he was given a copy of Dr. LaJoie's report, told to go to the unemployment office and told that there was no room for any accommodations at that time. John Norwell conceded that the respondent had a long-standing unwritten policy that an employe who had a lost time workers' compensation injury would not be brought back to work unless the employe had a 50 pound lifting capacity with no other restrictions, and that this policy was applied to Lee.

The respondent maintains that there was no reasonable accommodation to be made to the laborer position which would have allowed Lee to work as a laborer without repetitive lifting, bending, and twisting, and that the only way it could have returned Lee as a highway laborer in October 1991 was by creating a new position for him, or assigning him to a light duty position, neither of which is required by the Act. Further, the respondent asserts that Lee failed to accept other reasonable offers of accommodation which thereby defeats his claim of discrimination.

Determining what constitutes a reasonable accommodation depends on the specific facts in each individual case. McMullen, 148 Wis. 2d at 277. The evidence in this case indicates that the respondent could have accommodated Lee, to the extent that any accommodation was necessary. While the respondent asserts that there are occasions where laborers are working by themselves, and stresses that the laborer position could not avoid repetitive lifting, bending and twisting, the credible medical evidence and Lee's work history show that he would not have been precluded from performing these job activities. To the extent that there was any merit to the work restrictions Dr. LaJoie placed on Lee, however, the testimony by the crew leaders indicates that Lee's work duties could have been modified to accommodate those restrictions. As shown by the testimony of the crew leaders, the Highway Department has been able to accommodate many employes who have temporary physical restrictions, even for long periods of time. There was no need to create a new job or assign Lee to a light duty position. The occasions that Lee might have been called upon to work alone were during the winter months when serving as a back up to the regular patrolmen performing salting and snow plow operations. There was no showing that this work involved repetitive bending, twisting, lifting and carrying of objects in excess of 50 pounds. Moreover, the testimony of the crew leaders is uncontroverted: They could have accommodated an employe, such as Lee, whom Dr. LaJoie had recommended be placed on permanent work restrictions. Notwithstanding that the crew leaders were acknowledged to have the best understanding of what sort of work activity actually is required of highway laborers, the respondent's representatives made no effort to consult with them regarding Lee's ability to return to work as a highway laborer. Because of the crew leader's flexibility in assigning work, at the very least, crew leaders could have adjusted the extent to which Lee would have been required to perform repetitive lifting, bending or twisting in the performance of his duties as laborer.

The evidence also fails to support a showing that Lee had failed to accept other reasonable offers of accommodation by the respondent. In the respondent's offer for Lee to work in dispatch, he would have worked on a call-in, as-needed basis, apparently only during the winter months and without any guarantee of some minimum number of hours. Moreover, the record shows that this work was normally performed by crew leaders for overtime pay, and that assigning this work to Lee would have created problems within the bargaining unit and caused turmoil. The other possible work proposal raised by the respondent was for Lee to work as a clerk-typist. In addition to being a position that had seen much turnover of incumbents and one in which Lee had a complete lack of desire to work, this position was in a different union and would have required the respondent to persuade the unions to accept a transfer at a time friction existed between the two unions and the respondent had had no recent success in persuading the unions to accept a transfer. The circumstances surrounding these two alternative employment offers do not establish that Lee failed to accept reasonable offers to accommodate his perceived disability.

Based upon all of the foregoing, the commission concludes that the respondent discriminated against Douglas Lee in violation of the Act when it placed him on disability leave and refused to return him to his position as highway laborer.

cc: Bruce F. Ehlke
Robert M. Hesslink, Jr.


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Footnotes:

(1)( Back ) The obsolete term "handicap" in the Wisconsin Fair Employment Act has been replaced generally with the term "disability" by recently-enacted remedial legislation. 1997 Wis. Act 112.

(2)( Back ) Lee was subsequently paid a lump sum payment for temporary total disability benefits accrued through October 25, 1991.

(3)( Back ) In making this award Arbitrator Michelstetter concluded that while Dr. Woodford's testimony indicated that as of December 1991 he considered Lee to still have some degree of temporary disability, it appeared likely that even in December 1991 Lee might have returned with some light duty. Relying on Dr. Woodford's determination that Lee had fully recovered between the December 1991 and April 1992 visit and the fact that there was no definite way to determine when that date was, Michelstetter concluded that since the respondent's violation of the contract substantially contributed to this ambiguity, and since it is likely Lee could have worked in December 1991, back pay should be ordered from December 1991.

(4)( Back ) The issue of whether or not the respondent violated the Fair Employment Act when it placed Lee on disability leave in October 1991 is not foreclosed by the adverse arbitration decision which found that the respondent did not violate the collective bargaining agreement when it placed Lee on disability leave in October 1991. In proceeding to arbitration, Lee was acting under rights spelled out by the collective bargaining contract. In proceeding under the Fair Employment Act Lee seeks vindication in a dispute arising under protections afforded him by the statutes of this state, rather than the contract. These are two separate issues, and the arbitration award cannot be considered as having controlled the issue raised under the Wisconsin Fair Employment Act. Nielson Iron Works v. LIRC, (Racine Co. Cir. Ct, Case No. 81-CV-1530, 1982). See also, Alexander v. Gardner-Denver Co. 415 U.S. 36, 7 FEP Cases 81 (1974).

(5)( Back ) As noted earlier, 1997 Wis. Act 112 has replaced the obsolete term "handicap" under the Fair Employment Act with the term "disability."