LISA A HOLLETT, Complainant

SAUK COUNTY HEALTH CARE CENTER, 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 of the ALJ, and it adopts the findings and conclusion in that decision as its own.

The decision of the administrative law judge (copy attached) is affirmed.

Dated and mailed June 12, 2009
holleli . rsd : 125 : 9

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

The complainant petitions for commission review of the ALJ's decision, which found no probable cause to believe that the respondent violated the Wisconsin Fair Employment Act by failing to reasonably accommodate a disability or by terminating the complainant's employment because of disability.

On appeal, the complainant states that she does not agree with the ALJ's decision, but she does not specifically challenge any procedural or evidentiary ruling made by the ALJ, does not specifically challenge any findings of fact made by the ALJ as being unsupported by the record, nor does she specifically assert whether and why any conclusions of law made by the ALJ are claimed to be in error. The commission thus has no specific indication of why the complainant believes she should prevail on this record or what the complainant believes was erroneously decided by the ALJ. Notwithstanding this, the record in this matter has been reviewed for the purpose of determining whether the findings of fact and conclusions of law made by the ALJ are supported. Concluding that they are, the commission has adopted them as its own.

Briefly, what the record shows is the following: The respondent employed the complainant as a home care nurse, a position with job duties which required that she travel to patients' homes to provide medical care and which required that she be able to lift/carry up to 50 pounds and push/pull 100-200 pound objects. Cynthia Bodendein was the complainant's immediate supervisor. While performing her job duties in January 2006, the complainant was involved in automobile accident. The complainant was off work for two weeks following the accident and then released back to work with a light duty work restriction. The complainant was treated for soft tissue injuries to her left knee and low back. The respondent accommodated the complainant's light duty restriction by assigning her office job duties.

A nurse practitioner released the complainant to return to work on April 12, 2006, without restriction and the complainant resumed her normal job duties until September 2006.

On September 21, 2006, the nurse practitioner treated the complainant for non-work related low back musculoskeletal strain with sciatica and released her to return to work on September 25, 2006, with an 11 to 25 pound lifting restriction. However, the complainant remained off work until late October or early November 2006. When the complainant returned to work she had lifting and hours of work restrictions such that she could not perform her duties as a home care nurse. The respondent assigned clerical work for the complainant to do.

With the complainant unable to perform the home care nurse duties this left the respondent with four home care nurses. As a result, Bodendein herself made home care visits to patients. In addition, Bodendein had to hire a limited-term employee nurse to work 24 hours per week to help cover the patient visits that needed to be covered while the complainant was unable to perform her job duties. However, since the LTE was not part of the bargaining unit the LTE could not work weekends and therefore the remaining four nurses had to fill in the extra weekend hours. The respondent's remaining four nurses worked overtime to keep up with the case load. The respondent incurred additional costs of around $10,000.00 as a result of the complainant's unavailability to perform her home care duties.

On November 14, 2006, the complainant was examined by an independent medical examiner (IME) who determined, among other things, that the complainant "requires no additional treatment to cure and relieve the effects of the injuries sustained in the motor vehicle accident of January 21, 2006" and that the complainant "is fully capable of returning to work with no restrictions, either temporary or permanent."

After Bodendein learned about the IME's report, and thus that the complainant no longer had to be provided clerical work, Bodendein informed the complainant not to return to work until she could perform all of her home care nursing job duties. The complainant then contacted Beverly Muhlenbeck, the respondent's Department of Public Health Director, who advised the complainant that the respondent could not return her to work on light duty due to financial reasons and that she was put back on Family/Medical Leave status.

On November 28, 2006, the complainant saw another physician, who diagnosed her with "Back and Rad pain" that was medically work related and determined that the complainant should be restricted to light duty work four hours a day for three days per week until January 10, 2007.

Following notices from the respondent on November 30 and December 11, 2006, that she had exhausted her Family & Medical Leave entitlement and needed to apply for a leave of absence under her collective bargaining, the complainant requested a leave of absence under the collective bargaining agreement. However, by letter dated December 15, 2006, Muhlenbeck notified the complainant that the respondent was "unable to grant your request for a leave of absence as it was placing an undue hardship on the Sauk County Department of Public Health." Muhlenbeck requested the complainant to advise the respondent of her intent to return to work within 10 days of the date of the December 15 letter.

On December 28, 2006, the complainant having not returned to work or contacted her supervisor and having now missed more than three consecutive days of work, Michelle Koehler, the respondent's Personnel Director, wrote to the complainant to inform her that per her union contract her seniority had expired and therefore her employment with the respondent was terminated for failure to return to work.

The Wisconsin Fair Employment Act defines the term "Individual with a disability" to mean 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). The complainant has failed to establish that she is an individual with a disability. While there was evidence presented which showed that the complainant suffered knee and back strains and pain, the complainant presented no evidence regarding the nature and extent of any impairment to her knee or back. Furthermore, the complainant presented no evidence regarding the permanency of any impairment to her knee or back. A complainant is required to demonstrate a permanent impairment in order to establish a disability under the WFEA. Erickson v. LIRC, 2005 WI App 208, ? 16, 287 Wis. 2d 204.  There is also no reason to believe that the respondent perceived the complainant to be an individual with a disability. Bodendein had received word of the IME's report when she informed the complainant not to return to work until she could perform all of her home care nursing job duties. The IME's report of the complainant's examination on November 14, 2006, concluded that the complainant "requires no additional treatment to cure and relieve the effects of the injuries sustained in the motor vehicle accident of January 21, 2006" and that the complainant "is fully capable of returning to work with no restrictions, either temporary or permanent." The only medical documentation the respondent had received from the complainant's health care providers simply diagnosed the complainant as having contusions and strains and recommended temporary lifting and/or hours of work restrictions. 
 

cc: Attorney James R. Scott  

[ Search ER Decisions ] - [ ER Decision Digest ] - [ ER Legal Resources ] - [ LIRC Home Page ]

uploaded 2009/06/15