123.13 Permanent versus temporary conditions

The Complainant failed to establish that she had a permanent disability. She could not provide a name for her condition, and her medical experts could not and did not opine that the condition – swelling and pain in her left forefoot - was permanent. Rather, the most recent opinions from the Complainant's medical providers reflected uncertainty on the status of her foot and what the prospects were for it; uncertainty is not proof by a preponderance. The commission distinguished this case from Rutherford v. Wackenhut Corp. (LIRC,05/13/11), explaining a significant factual difference. Specifically, in Rutherford, there were expert medical opinions expressly finding that the Complainant had reached a healing plateau and had a specific percentage of permanent disability. Burge-Milner v. Dep't of Veterans Affairs (LIRC, 11/11/15).

An injury, by its very nature, is generally regarded as a temporary condition that will heal over time. However, in this case, the Complainant presented persuasive evidence to indicate that her injury was not going to fully heal and that the damage sustained was permanent. In addition to information supplied by her doctor, the Complainant was ultimately determined to have a permanent partial disability under the Worker’s Compensation Law and she was determined to qualify for Social Security Disability benefits. It was error for the Administrative Law Judge to find that only those facts known by the Respondent at the time it discharged the Complainant were relevant. To base a decision on whether an impairment is permanent strictly on the information that was available at the time of discharge would effectively allow an employer to discharge an injured or sick employee with impunity, provided that the employer did so prior to any assessment of the permanency of the injury or illness. Rutherford v. Wackenhut Corp (LIRC, 05/13/11).

The Complainant’s heart surgery and her recovery from heart surgery were temporary conditions. The Complainant’s cardiologist considered her to have fully recovered from her heart surgery. The Administrative Law Judge properly found that the Complainant’s heart surgery did not constitute a disability (although the Respondent did perceive that the Complainant had a disability because of her heart disease and diabetes). Lundstad v. Management Computer Support (LIRC, 12/26/08).

The Complainant’s impairment in this case resulted from a work-related injury to his shoulder. An injury, by its very nature, is generally regarded as a temporary condition that will heal over time. The Complainant’s medical records, in which his doctor described the condition as a “shoulder strain,” contained nothing to suggest that the condition was likely to be permanent. To the contrary, the Complainant testified that his doctor had told him that if he resumed performing all of his former job duties, he would risk permanent damage in the future. This suggests that the injury was not thought to be a permanent one. Thus, the Complainant did not meet his burden of demonstrating that he had a permanent impairment. Reiter v. Waukesha Engine Div. (LIRC, 11/30/07).

There are many types of impairments for which treatments are available. The mere fact that a potential treatment exists is not reason enough to conclude that the impairment is only a temporary one, thus denying the individual the coverage of the Wisconsin Fair Employment Act. It was inappropriate for the Administrative Law Judge to find that the Complainant was not disabled because he could correct his shoulder problem with surgery. Reiter v. Waukesha Engine Div. (LIRC, 11/30/07).

The Complainant’s condition could not be considered a temporary condition. The Complainant was first diagnosed with depression and anxiety several years before the complaint in this matter. The Complainant’s physician testified that the Complainant continued to have these symptoms at the time of hearing. The only thing temporary about the Complainant’s condition was that there was a period of a few months when he needed to adjust his medication to remedy the side effects that medication was having on him. Goldsmith v. Sears Roebuck & Co. (LIRC, 06/29/06).

A physical impairment must be permanent in order to constitute a disability under the Wisconsin Fair Employment Act. There is nothing in the decision in Target Stores v. LIRC, 217 Wis. 2d 1, 576 N.W.2d 545 (Ct. App. 1998) which suggests, either implicitly or explicitly, that temporary impairments may be covered disabilities. The Complainant in that case had sleep apnea. Although she was exploring treatments that may have resolved some of her symptoms, the fact that her symptoms might be treated did not render her medical condition a temporary one. There was no indication that the Complainant’s sleep apnea would ever go away. Hermann v. Cellu Tissue Holdings (LIRC, 11/14/05).

Disabilities which are merely temporary do not fall within what is intended to be covered by the prohibition on discrimination because of disability. In this case, the Complainant had degenerative arthritis of the left ankle joint, which was a permanent impairment. However, there was no limitation on her capacity to work as a direct result of that impairment. The Complainant had a temporary restriction related to her recent ankle surgery; however, this would no longer be in effect after she completed her recovery from the surgical procedure. Therefore, her impairment did not make achievement unusually difficult for her or limit her capacity to work. Rauls-Hepp v. J.L. French Corp. (LIRC, 09/30/05).

A disability must be permanent in order to be actionable under the Wisconsin Fair Employment Act. Erickson v. QuadGraphics (LIRC, 05/25/04); aff’d sub nom. Erickson v. LIRC, Washington Co. Cir. Ct., 10/27/04; aff’d, 2005 WI App 208, 287 Wis. 2d 204, 704 N.W.2d 398.

The Complainant’s alleged disability was “a back impairment due to slow recovery from surgery.” This does not constitute a disability within the meaning of the Wisconsin Fair Employment Act. The Complainant’s alleged impairment, by its very terms, indicates that it was a temporary condition. 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. Falk v. WIPC (LIRC, 12/18/03).

Disabilities which are merely temporary do not fall within what is intended to be covered by the Wisconsin Fair Employment Act’s prohibition on discrimination because of disability. Reinke v. Pick ‘n Save Mega Food Centers (LIRC, 01/28/00).

A temporary eye irritation caused by exposure to chemicals did not constitute a handicap. Wollenberg v. Webex (LIRC, 11/08/91).

A short-term illness is not considered a handicap. Keith v. AFK Corp. (LIRC, 08/14/81); Terrell v. Pabst Brewing Co. (LIRC, 03/04/81).

A temporary disability incurred while on the job is not considered a handicap. Lockington v. La Crosse Rubber Mills (LIRC, 04/08/81); Pizl v. Waukesha Bearing (LIRC, 03/09/83).

Under some circumstances, a temporary disability may constitute a handicap. Goldberg v. Dep't of Pers. (Wis. Pers. Comm’n, 10/17/80).