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Erickson v. Labor and Industry Review Commission8/3/2005
Before Brown, Nettesheim and Snyder, JJ.
Kip D. Erickson appeals from a judgment affirming a decision of the Labor and Industry Review Commission. LIRC decided that Quad/Graphics, Inc. (Quad) did not unlawfully discriminate against Erickson on the basis of disability because it concluded Erickson failed to prove that he was an "individual with a disability" within the meaning of the Wisconsin Fair Employment Act (WFEA). See WIS. STAT.ยง 111.32(8) (2003-04). The circuit court agreed, stating that "the transcript indicates that [Erickson] has wholly failed to meet his factual burden with respect to either disability (permanent or otherwise)." Erickson contends that the court erred because he has established that he is an individual with a disability within the meaning of the WFEA. We disagree with Erickson and affirm the judgment of the circuit court.
FACTS
Quad hired Erickson as a janitor in February 1996. Erickson performed various cleaning duties at the plant, including waxing and refurbishing floors. On April 10, 2000, Erickson injured his back while operating a walk-behind scrubbing machine. He completed and submitted an injury report, stating that he had been "operating the walk behind scrubbing machine, pushing it to clear lower imaging floors when back muscles tightened up and became real sore."
On April 12, Erickson was examined at the Quad/Med Clinic and diagnosed with a thoracic strain. He was referred to rehabilitation, prescribed medication, and released to return to work on April 13 with temporary restrictions on lifting, twisting, squatting, and crouching. Between April 12 and June 28, 2000, several medical professionals evaluated Erickson and each released him to work with temporary restrictions. During this time, Quad permitted Erickson to perform tasks consistent with the work restrictions.
On July 19, 2000, an independent medical examiner concluded that Erickson could work without restrictions. Quad's workers' compensation coordinator, Mary Wolfe, advised Erickson that he would have to return to his normal duties or take a medical leave without pay. Erickson decided to perform his normal work, although he continued to experience pain, tightness, and inflammation in his back.
Erickson submitted a report prepared by Dr. Charles Shoham on March 13, 2001, wherein Dr. Shoham opined that Erickson suffered from back myofascial pain, a permanent condition requiring permanent work restrictions. The restrictions imposed by Dr. Shoham were as follows: no lifting more than forty pounds, no carrying more than forty pounds, no repetitive pushing or pulling, and no repetitive bending, twisting or lifting.
On March 19, Wolfe, Erickson, and Erickson's direct supervisor, Dave Litschauer, met to discuss Dr. Shoham's report and the potential impact on Erickson's ability to perform his janitorial duties. The discussion revealed that Erickson's work restrictions made it too difficult for him to perform his job duties. Wolfe then explained that Erickson had some options, including: (1) continue working as a janitor without restrictions, (2) take an unpaid medical leave, or (3) transfer to another job at Quad that was consistent with his work restrictions.
Erickson claims, but Quad denies, that Quad "suspended" him from his job . Quad claims that it referred Erickson to its internal career assistance department, which assists employees with job issues and job changes. Erickson agrees that he was offered career assistance, but concedes he did not call to follow up on the service for the next six months. It is undisputed that Erickson has not returned to work at Quad since March 19, 2001.
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