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Erickson v. Labor and Industry Review Commission8/3/2005
On July 11, 2001, Erickson filed a WFEA disability discrimination complaint with the Equal Rights Division of the Department of Workforce Development. He alleged that Quad discriminated against him by terminating his employment because of a disability and refusing to reasonably accommodate a disability. In an initial determination, an investigator for the Division concluded that there was probable cause to believe Quad had violated the WFEA. The case was certified for a hearing.
The hearing took place on April 1 and 2, 2003. Based on the evidence received, the hearing examiner made several findings of fact, including that: (1) Erickson did not have a physical impairment which made achievement unusually difficult or which limited his capacity to work, and (2) Quad did not have a record of Erickson having, or perceive Erickson as having, such a physical impairment. The examiner concluded that Erickson "failed to establish by a fair preponderance of the evidence that he had a disability within the meaning of the Wisconsin Fair Employment Act." Erickson's complaint was dismissed.
On May 25, 2003, LIRC issued a Fair Employment Decision affirming the hearing examiner's dismissal of Erickson's complaint. LIRC's memorandum opinion provided:
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.
Erickson appealed to the Washington County Circuit Court, which affirmed LIRC in a written opinion dated October 27, 2004, and a judgment entered on November 12. Erickson appeals.
DISCUSSION
Erickson first contends that LIRC and the circuit court erred when determining that to be actionable under the WFEA, a disability must be permanent. Specifically, Erickson states that LIRC's "holding that a physical impairment must be permanent to be a disability under WFEA is clearly contrary to the legislative intent of WFEA." The relevant statute states: "'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.ยง 111.32(8). Erickson points out that the statute does not contain a reference to permanency and argues that LIRC's interpretation adds an improper restriction to the language adopted by the legislature.
Erickson also contends that he presented sufficient evidence to show the nature of his claimed disability and any holding to the contrary is error. He maintains that he presented undisputed evidence of a back injury that prevented him from "performing ... the normal functions of twisting, pulling, pushing, bending, and lifting repetitively and limits his capacity to perform all his job responsibilities and which also requires him to remain under a physician's care and to take prescription drugs to alleviate pain." He contends that pursuant to our supreme court's holding in Chicago, Milwaukee, St. Paul & Pacific Railroad Co. v. DILHR, 62 Wis. 2d 392, 398, 215 N.W.2d 443 (1974), a disability must be interpreted not as a technical
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