Chicago & North Western Railroad v. Labor & Industry Review Commission
Chicago & North Western Railroad v. Labor & Industry Review Commission
Opinion of the Court
This is a review of a court of appeals’ decision
Mr. Pritzl filed a complaint with the Wisconsin Department of Industry, Labor and Human Relations, alleging that he had been discriminated against with respect to employment when the railroad determined that he was not qualified to return to work as a welder due to his epilepsy. Thereafter, the parties attempted to resolve the controversy “by conference, conciliation or persuasion” pursuant to sec. 111.36(3) (a), Stats. These efforts failed and the matter was referred to a hearing examiner on March 18,1975.
At the hearing it was stipulated that Mr. Pritzl had experienced two grand mal epileptic seizures prior to his termination. The first seizure occurred on June 12, 1971, approximately one month after he suffered a head injury in an automobile collision. The second seizure occurred on October 24, 1971, while Pritzl was on a leave of absence granted by the railroad as a result of an injury received in a horse riding accident on August 27, 1971. Pritzl returned to work and performed some duties for the railroad after the original onset of epilepsy and before the horse riding accident, but his affliction was not diagnosed as epilepsy until after the second seizure on October 24th. Following this diagnosis, Pritzl was placed on anticonvulsive agents, dilantin and phenobarbital. It was also stipulated that Pritzl did not
The question presented to the hearing examiner was whether the railroad’s action in terminating Pritzl’s employment as a welder was lawful under the provisions of sec. 111.32(5) (f), Stats. 1973.
Pritzl and three of the railroad’s employees testified as to a welder’s duties and work environment. Pritzl testified that during his employ with the petitioner he
Edward L. Barnes, a road master for the railroad, testified that, in addition to operating motor cars, welders are required to operate “high rail” pickup trucks.
Mr. L. G. Tieman, an assistant division manager for the petitioner, repeated much of what was said by Barnes and Pritzl and added that welders are required to work on bridges as high as 30 to 50 feet. He also testified that the rail grinders used by the welders possessed, in essence, one moving part, the grinding wheel, covered by a guard.
Dr. Thomas Davison, petitioner’s medical director, a subspecialist in occupational medicine and a board certified specialist in preventive medicine, and Dr. Francis J. Millen, a neurologist with a subspecialty in epilep-tology, testified for the petitioner with respect to Pritzl’s capacity to safely perform the duties of a welder for the railroad.
Dr. Davison, the railroad’s medical director, has the ultimate responsibility to determine whether an employee should remain on the railroad’s employment rolls or be discharged for medical reasons. He decided after consultation that Pritzl’s condition of epilepsy disqualified him for further employment as a welder. Dr. Davi-son testified that his decision was mandated by rule 9 of the railroad’s “Rules and Regulations Governing the Examination and Re-Examination of Employes” because welders are required to operate “motor cars” and “high rail” pickup trucks. Rule 9, in part, provides:
“No one in train, engine or yard service, and no one who operates a motor car, motor vehicle, or power driven work equipment, as all or even a part of his duties, and who is subject to or has a history of epileptic seizures (both Grand Mai attacks and/or Petit Mai attacks), . . . shall be permitted to return to such service or duties at any time.”
Accordingly, he testified that once a welder is determined to be an epileptic, rule 9 prohibits his return to work for the petitioner as long as the condition of epilepsy remains unchanged. He stated that the basis for the rule 9 exclusion was the potential hazards involved in allow
Dr. Millen described the characteristics and effects of a grand mal epileptic seizure. He testified that a person who experiences a grand mal seizure will suddenly lose consciousness, fall to the ground, stiffen up and suffer an uncontrolled spasm-like jerking of arms and legs. The loss of consciousness usually lasts for a period of two-fifteen minutes. After the seizure the epileptic regains consciousness and experiences what is termed a “post seizure state.” During this time he is often confused and unaware of his surroundings. The post seizure state may last for an indefinite period of time of hours, or even a day. A person not on anti-epileptic medication may receive a pre-warning of the seizure’s onset, whereas a patient taking medication is less likely to receive a warning. Epileptic seizures experienced by persons taking anticonvulsive drugs ofttimes will be milder than one failing to ingest the same. One of the primary differences in the severity of epileptic seizures suffered by persons on medication as compared with the convulsions of epileptics who are not taking seizure control medicine is that the former may not lose consciousness or awareness of their environment or surroundings.
Dr. Millen also testified that a person who has experienced two grand mal type epileptic seizures would be exposed to danger in the handling of a welding torch and in the operation of “motor cars” and pickup trucks. However, he qualified this remark noting that the danger to an epileptic and to those around him would be reduced
Dr. Davison and Dr. Millen testified that there is no cure for epilepsy but that anticonvulsive agents are medications that control the onset and severity of the seizure. Both doctors also testified that epileptics may experience what is termed “breakthrough” seizures (epileptic convulsions that take place while the patient continues to ingest antiepileptic medication). Also, Davison stated there is a greater danger of recurring seizures should the epileptic fail to take his medication. However, Dr. Millen testified that 70 to 90 percent of all epileptics regularly taking anticonvulsive drugs do not suffer recurrent episodes and that the likelihood of a breakthrough seizure decreases the longer the period the patient on medication fails to experience an epileptic convulsion. But, the possibility of a breakthrough seizure is never entirely eliminated.
The complainant, Pritzl, failed to offer medical testimony at the hearing. However, the cross-examination of Dr. Davison established that four doctors, Hoon, Senty, McRoberts and Houfek, the last of whom was a neurologist, had examined Pritzl on behalf of the railroad and that each concurred in the opinion expressed by Pritzl’s physician, Dr. Keller, that Pritzl was capable of returning to his usual work as a welder for the petitioner on
Other evidence adduced at the hearing included the fact that Pritzl had been granted a restricted driver’s license on or about April 24, 1972, and that the restrictions had been removed as of the date of the hearing, March 18, 1975, pursuant to sec. 848.09, Stats. Under this statute a person suffering from epilepsy may be granted a driver’s license if the Department of Transportation determines that it would not be a “hazard to public safety to permit the applicant to operate a motor vehicle.” Id. This determination is made upon the statement of a physician who examined the epileptic and who certifies that the applicant is “under medication and free from seizures while under medication” with the approval of the secretary of transportation. Id.
On February 11, 1977, the hearing examiner made findings of fact, conclusions of law, issued a proposed order and recommended decision that was adopted by the Commission in its entirety on September 16, 1977. The order provided as follows:
“1. That Respondent [petitioner] cease and desist from disqualifying Complainant [Pritzl] from performing the duties of a welder on the basis of handicap.
*602 “2. That within ten days from the Commission’s final order herein, Respondent shall restore Complainant to his job as a welder with all rights, privileges, benefits, seniority and remuneration he would have had if Respondent had not disqualified him. Respondent may require any reasonable medical examinations and tests before the resumption of Complainant’s employment and periodically thereafter to insure the safety of Complainant and others with whom he may work. Those examinations and tests shall be those that may be necessary to reasonably monitor Complainant’s condition in the sound judgment of the appropriate independent medical specialists.
“3. That within ten days of the Commission’s final order herein Respondent shall make Complainant whole for any loss of pay or other benefits suffered by reason of the unlawful disqualification of him, by paying to Complainant a sum of money equal to that which he normally would have earned since April 24, 1972,7 the*603 date he was certified by his physician as being able to safely return to work, to the date of his reinstatement, less any statutory setoffs.”
The Commission’s findings of fact relevant to this appeal provide:
“1. Since April 24, 1972, Respondent has disqualified Complainant from returning to work as a welder for Respondent on the ground that as an epileptic, he could not safely perform his duties.
“3. Complainant was disqualified under a rule of Respondent which required disqualification of an epileptic without any analysis of the employee’s medical history, his medical management, or whether his duties include any proscribed by medical restrictions for reasons of safety.
“6. Respondent’s rule is unreasonable in its failure to consider whether Complainant, with his affliction and the required restrictions, has the ability to undertake the job related responsibilities of his employment. Complainant’s handicap is not reasonably related to his ability to adequately undertake the job related responsibilities of a welder for Respondent.”
In light of these findings, the Commission concluded in pertinent part that:
“3. Complainant has proven by a preponderance of the evidence that Respondent disqualified him from resuming his duties as a welder on the basis of a handicap.
“4. Respondent discriminated against Complainant in disqualifying him on the basis of handicap in violation of the Wisconsin Fair Employment Law.”
The railroad, pursuant to sec. 111.37 and ch. 227, Stats., petitioned the circuit court for review of the decision and order of the Commission. The circuit court, on June 15, 1978, rendered judgment affirming the Commission. The court of appeals affirmed the judgment
Issue
Is there substantial evidence in the record to support the conclusion of the trial court that the railroad discriminated against Pritzl on the basis of handicap in contravention of sec. 111.325, Stats., in disqualifying him for employment as a welder?
The railroad claims that its termination of Pritzl’s employment was justified under the exception to unlawful handicap discrimination set forth in sec. 111.32(5) (f), Stats. Sec. 111.32(5) (f) provides:
“(f) The prohibition against discrimination because of handicap does not apply to failure of an employer to employ or to retain as an employe any person who because of a handicap is physically or otherwise unable*605 to efficiently •perform, at the standards set by the employer, the duties required in that job. An employer’s exclusion of a handicapped employe from life or disability insurance coverage, or reasonable restriction of such coverage, shall not constitute discrimination.” (Emphasis supplied.)
The language emphasized in the above quotation of sec. 111.32(5) (f), Stats., creates what has been termed a “future hazards” exception to handicap discrimination in employment. The “future hazards” exception was first announced in Chicago, M., St. P. & P. RR. Co. v. ILHR Dept., 62 Wis.2d 392, 399, 215 N.W.2d 443 (1974), and articulated in Bucyrus-Erie Co. v. ILHR Dept., 90 Wis.2d 408, 280 N.W.2d 142 (1979).
In Bucyrus-Erie Co., supra, this court stated:
“The point is that we believe safety with regard to both the handicapped employee’s future health and well-being and others is a factor to be accorded some recognition in cases arising under sec. 111.32(5) (f), Stats. 1973. The ability to efficiently perform embraces more than the physical strength and dexterity required to adequately perform at the moment of application for employment. It embraces the ability to perform without a materially enhanced risk of death, or serious injury to the employee or others in the future and the statute must be so construed. We do not believe that the legislature when proscribing discrimination against those physically handicapped intended to force an employer into the position of aiding a handicapped person to further injury, aggravating the intensity of the handicap or creating a situation injurious to others. Such an interpretation would compromise not only the best interests of the handicapped but all concerned. It is important that each case be individually evaluated and decided upon the evidence presented by both parties.” (Emphasis supplied.) Id. at 423.
The petitioner claims that it has satisfied the “future hazards” exception based upon the testimony of Drs.
The Commission, on the other hand, contends that its finding is supported by substantial evidence. The respondent points to the letters from Dr. Keller and Dr. Hoon (received in evidence pursuant to a stipulation) containing the opinions of Drs. Hoon, Houfek, Keller, McRoberts and Senty that Mr. Pritzl was capable of returning to work as a welder for the railroad six months after his seizure on October 24, 1971 and claims that this evidence contradicted the testimony of Drs. Davison and Millen.
The Commission found:
“6. Respondent’s rule is unreasonable in its failure to consider whether Complainant, with his affliction and the required restrictions, has the ability to undertake the job related responsibilities of his employment. Complainant’s handicap is not reasonably related to his ability to adequately undertake the job related responsibilities of a welder for Respondent.”
Thus, it is evident that the Commission found that the railroad failed to establish the future hazards exception implicit in the language of sec. 111.32(5) (f) and rejected the testimony of Drs. Millen and Davison that the continued employment of Pritzl would be hazardous to himself or others. The finding of capability to perform job related responsibilities at the standard set
A finding that the employer has failed to establish the future hazards exception is a finding to which the “substantial evidence” standard of review set out in sec. 227.20(6), Stats., applies. Dairy Equipment Co. v. ILHR Dept., 95 Wis.2d 319, 290 N.W.2d 380 (1980); Bucyrus-Erie, supra. Sec. 227.20(6), Stats., provides:
“(6) If the agency’s action depends on any fact found by the agency in a contested case proceeding, the court shall not substitute its judgment for that of the agency as to the weight of the evidence on any disputed finding of fact. The court shall, however, set aside agency action or remand the case to the agency if it finds that the agency’s action depends on any finding of fact that is not supported by substantial evidence in the record.” (Emphasis supplied.)
Thus, the test on review is whether the Commission’s finding is supported by substantial evidence in the record.
Substantial evidence has been defined to be “that quantity and quality of evidence which a reasonable man could accept as adequate to support a conclusion,” Robertson Transport Co. v. Public Service Comm., 39 Wis. 2d 653, 658, 159 N.W.2d 636 (1968), or “ . . such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’ ” Gateway City Transfer Co. v. Public Service Comm., 253 Wis. 397, 405, 34 N.W. 2d 238 (1948). See also: Bell v. Personnel Board, 259 Wis. 602, 608, 49 N.W.2d 889 (1951).
“An agency determination being reviewed under Chapter 227 will not be overturned because it is against the great weight and clear preponderance of the evidence. City of Superior v. ILHR Department, 84 Wis.2d 663, 666, 267 N.W.2d 637 (1978). Rather, the agency’s decision may be set aside by a reviewing court only when, upon an examination of the entire record, the evidence, including the inferences therefrom, is found to be such that a reasonable person, acting reasonably, could not have reached the decision from the evidence and its inferences. Bucyrus-Erie Co. v. ILHR Department, supra at 418; Holtz & Krause, Inc. v. DNR, 85 Wis.2d 198, 204, 270 N.W.2d 409 (1978).” Hamilton v. ILHR Dept., 94 Wis.2d 611, 618-19, 288 N.W.2d 857 (1980).
In Bucyrus-Erie Co., supra, this court described the burden an employer must meet to come within the future hazards exception as delineated in sec. 111.32(5) (f), Stats. :
“If the evidence shows that the applicant has a present ability to physically accomplish the tasks which make up the job duties, the employer must establish to a reasonable probability that because of the complainant’s physical condition, employment in the position sought would be hazardous to the health or safety of the complainant or to other employees or frequenters of the place of employment.” (Emphasis supplied.) Id. at 424.
Under the standard of review as set forth in ch. 227, the question presented is whether reasonable men could, on the basis of the relevant evidence, accept the conclusion that the petitioner failed to satisfy the future hazards exception, i.e., prove that continued employment of Pritzl as a welder would create a reasonable probability of hazard to Pritzl or others.
The railroad contends that the court of appeals incorrectly applied the reasonable probability burden set out in Bucyrus-Erie Co., supra. The court of appeals held that the Commission’s finding was supported by substantial evidence, stating:
“The [medical testimony] is sufficient basis to conclude that appellant has not shown a reasonable probability that Mr. Pritzl will suffer a future seizure. It is possible that a seizure will occur, with or without medication; but a possibility does not arise to a prob*610 ability. The Commission could also conclude that appellant [railroad] has not shown a reasonable probability that Mr. Pritzl, if he has a seizure, will injure himself or others.” (Emphasis supplied, supra, n. 1 at 471.)
The essence of the railroad’s claim is that the court of appeals misapplied the Bucyrus-Erie rule because it emphasized the reasonable probability of injury or seizure. It claims that this likelihood is not the same as that of the reasonable probability of hazard which is the standard set out in Bucyrus-Erie. The petitioner’s claim lacks merit for a hazard would not be presented unless Pritzl experienced a seizure during the course of employment, and thus in the context of this case the reasonable probability of a hazard is the same as the likelihood of a seizure.
The petitioner makes two additional claims, both of which are related to facts that came into being long after the proceedings before the hearing examiner on March 18, 1975 terminated. On January 18, 1979, while the appeal was pending in the court of appeals, the petitioner noticed a motion in the circuit court, pursuant to sec. 806.07(1) (b), (h), Stats., for relief from judgment in the ch. 227, review action. The affidavit in support of the motion quoted from a deposition given by Dr. Keller on October 25, 1978 in a lawsuit brought by Pritzl in Manitowoc county. In this deposition Keller stated that Pritzl had not been faithful in taking his medication and had suffered two epileptic seizures, one in November of 1977 and a “breakthrough” seizure in June of 1978.
The basis of the railroad’s motion in the court of appeals was that the seizures experienced by Pritzl in 1977 and 1978 and the cancellation of Pritzl’s driving license in 1978 constituted newly discovered evidence sufficient to require a new trial under sec. 805.15(8), Stats. These facts are not relevant to the case under review as they relate only to Pritzl’s ability to efficiently perform a welder’s duties according to the railroad’s standards as of 1977 or 1978, and not to Pritzl’s capacity to work as a welder on the date of his disqualification, April 24, 1972. In view of the Commission’s order allowing the railroad to “require any reasonable medical examinations and tests before the resumption of Complainant’s [Pritzl’s] employment . . . ,” the fact that Pritzl suffered two additional seizures would be relevant to Pritzl’s return to work. Thus, these facts are not newly discovered evidence as to this case. Therefore, we hold that the appellate court did not err in denying the petitioner’s motion for relief from judgment, pursuant to sees. 808.07 and 806.07 (1) (b) and (h).
The railroad claims that this court should exercise its discretionary power of reversal under sec. 751.06, Stats. We decline to do so as this court in previous cases has held that reviewing courts have no powers with respect
By the Court. — The decision of the court of appeals is affirmed.
The decision of the court of appeals is reported at 91 Wis.2d 462, 283 N.W.2d 603 (Ct. App. 1979).
Sec. 111.32(5) (f), Stats. 1973, provided:
“ (f) The prohibition against discrimination because of handicap does not apply to failure of an employer to employ or to retain as an employe any person who because of a handicap is physically or otherwise unable to efficiently perform, at the standards set by the employer, the duties required in that job. An employer’s exclusion of a handicapped employe from life or disability insurance coverage, or reasonable restriction of such coverage, shall not constitute discrimination.”
See: Bucyrus-Erie Co. v. ILHR Dept., 90 Wis.2d 408, 280 N.W.2d 142 (1979); Chicago M., St. P. & P. RR. Co. v. ILHR Dept., 62 Wis.2d 392, 215 N.W.2d 443 (1974).
A “motor car” is a gas powered vehicle equipped with steel wheels for use only upon the rails. It is operated by one person and capable of reaching speeds of 35 to 40 m.p.h.
A “high rail” pickup truck is a standard pickup truck equipped with steel wheels attached to its front and rear. These wheels can be lowered so as to guide the pickup along the rails. A high rail pickup is propelled over the rails by its rubber tires and is capable of reaching speeds of 65 m.p.h. on the rails and can be operated on ordinary roads.
The opinions of Drs. Senty, McRoberts and Houfek were expressed in a letter authored by Dr. Keller. This letter was one of the complainant’s exhibits admitted into evidence pursuant to a stipulation of the petitioner’s counsel. Dr. Hoon’s letter was received in evidence.
At the hearing the parties stipulated that Mr. Pritzl was a Track Welder represented by the Boilermakers Organization of the Federated Shop Crafts and that Pritzl's back pay would be calculated according to the rates of pay for Track Welders represented by that organization. The following wage and increase schedule was introduced into evidence at the hearing for this purpose:
Date of Negotiated Increase Increase Negotiated Resultant Rate of pay
1-1-74 4% $5.7800 per hour
4-1-73 25 cents per hour 5.5577 per hour
10-1-72 5% 5.3077 per hour
4-1-72 5% 5.0550 per hour
10-1-71 5% 4.8143 per hour
4-1-71 15 cents per hour 4.5850 per hour
1-1-71 10 cents per hour 4.4350 per hour
8-1-70 4 cents per hour 4.3350 per hour
4-1-70 4 cents per hour 4.2950 per hour
2-19-70 7 cents per hour 4.2550 per hour
1-1-70 5% 4.1850 per hour
9-1-69 3.8857 per hour
The final total of the back pay award is not contained in the record.
The statute set out in the opinion is the 1973 version of sec. 111.32(5) (f), Stats. This statute was amended by ch. 275, sec. 18, Laws of 1975, effective May 27, 1976. As amended, the section in relevant part provides:
“(f) It is discrimination because of handicap:
“1. For an employer, ... to bar or to terminate from employment, . . . any individual . . . unless such handicap is reasonably related to the individual’s ability adequately to undertake the job-related responsibilities of that individual’s employment . . . .”
The effective date of the amended sec. 111.32(5) (f) fell between the date of the hearing in this case, March 18, 1975, and the date the Commission adopted the hearing examiner’s recommended decision, September 16, 1977. The petitioner contends that the hearing examiner applied the amended version of sec. 111.32(5) (f) to this case. The record is unclear on this point. However, the circuit and appellate courts applied sec. 111.32(5) (f) as it existed in 1973. Since the petitioner’s alleged act of discrimination occurred while the 1973 provision was in effect and thus Pritzl’s right of action accrued under this provision, sec. 111.32(5) (f) as amended is inapplicable. Dairy Equipment Co. v. 1LHR Dept., 95 Wis.2d 319, n. 8, 331-32, 290 N.W.2d 330 (1980). Further reference in this opinion to sec. 111.32(5) (f) is to the 1973 provision.
The Bucyrus-Erie standard was quoted with approval in Dairy Equipment Co., supra.
It should also be noted that the undisputed testimony established that Pritzl had not experienced an additional seizure episode as of the date of the hearing, March 18, 1975.
The exhibits attached to the railroad’s motion for relief from judgment indicate that Pritzl also may have experienced a seizure around the end of September or beginning of October, 1977.
Sec. (Rule) 809.12, Stats., specifically provides for motions to the court of appeals for relief pending appeal under sec. 808.07, and sec. 808.07(2) (a) (4) permits the appellate court to grant relief pending appeal, pursuant to sec. 806.07. Sec. 806.07(1) (b) and (h) provides:
“806.07 Relief from judgment or order. (1) On motion and upon such terms as are just, the court may relieve a party or legal representative from a judgment, order or stipulation for the following reasons:
“ (b) Newly-discovered evidence which entitles a party to a new trial under s. 805.15(3);
“(h) Any other reasons justifying relief from the operation of the judgment.”
Sec. 805.15(3) provides:
“(3) Newly-discovered evidence. A new trial shall be ordered on the grounds of newly-discovered evidence if the court finds that:
“(a) The evidence has come to the moving party’s notice after trial; and
“ (b) The moving party’s failure to discover the evidence earlier did not arise from lack of diligence in seeking to discover it; and
“(c) The evidence is material and not cumulative; and
“(d) The new evidence would probably change the result.”
“751.06 Discretionary reversal. In an appeal in the supreme court, if it appears from the record that the real controversy has not been fully tried, or that it is probable that justice has for any
Reference
- Full Case Name
- Chicago & North Western Railroad (Chicago & North Western Transportation Company), Appellant-Petitioner v. Labor & Industry Review Commission
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- 9 cases
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