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Erickson v. Labor and Industry Review Commission8/3/2005
experienced muscle spasms, he had pain and inflammation, and certain movements caused him pain in his back. He did not, however, offer any competent medical evidence of the nature, extent, or permanency of his back injury. LIRC summed up the situation as follows:
[Erickson] 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 [Erickson] 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 [Quad] and when, and not as proof of the underlying medical opinions or diagnoses.
[Erickson'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 [Erickson] 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 [Erickson's] back problem was a permanent condition or a temporary one which could be expected to heal over time.
Erickson relies on Swanson v. State Street Stylists, No. 199600028 (LIRC Nov. 26, 1997), for the proposition that a layperson's testimony can establish a disability. While there was no expert testimony in Swanson, the issue was not whether the layperson's testimony was sufficient, but rather whether the employee had a record of a disability. See id. Again, Erickson's attempt to draw a persuasive analogy fails. To demonstrate that a disability under the WFEA exists, the complainant must present "competent evidence of a medical diagnosis" regarding the alleged impairment. See Connecticut Gen. Life, 86 Wis. 2d at 407-08.
In the alternative, Erickson claims that he is an individual with a disability under WIS. STAT.§ 111.32(8)(c) because Quad perceived him as having a physical impairment. Erickson must show that Quad determined that he had an impairment that made achievement unusually difficult or limited his capacity to work, and discriminated against him on that basis. See City of La Crosse Police & Fire Comm'n, 139 Wis. 2d at 762, 766 (a person alleging discrimination based on a disability under the WFEA must establish an actual or perceived impairment, that such condition either actually makes or is perceived as making achievement unusually difficult or limits the capacity to work, and that the employee was discriminated against on the basis of that actual or perceived disability).
Quad contends that it believed Erickson "never had anything more than a temporary condition based upon competent medical records received from [the independent medical examiner]." Erickson's supervisor, Litschauer, testified that he had "multiple doctors thrown at me trying to manage a guy that says he's still hurt." In the face of conflicting medical reports, Quad continued to accommodate Erickson's requests for light-duty work. This was done despite the independent medical report indicating that Erickson had no permanent impairment. By so doing, Quad supported Erickson's efforts to continue working and ultimately upheld the purpose of the WFEA, that is, to enable individuals to work. See WIS. STAT.§ 111.31(2); Brown County v. LIRC, 124 Wis. 2d 560, 563, 369 N.W.2d 735 (1985). We would undermine the purpose of the WFEA were we to conclude that Quad's d
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