Chicago and N.W. R.R. v. Labor and Industry Review Commission

• Decision Date: 28 October 1980
• Docket Number: No. 78-416,78-416
• Parties: , 37 Fair Empl.Prac.Cas. (BNA) 1127, 24 Empl. Prac. Dec. P 31,387, 1 A.D. Cases 240 CHICAGO AND NORTH WESTERN RAILROAD (Chicago and North Western Transportation Company), Appellant-Petitioner, v. LABOR AND INDUSTRY REVIEW COMMISSION, Respondent.
• Court: Wisconsin Supreme Court

Page 819

297 N.W.2d 819

98 Wis.2d 592, 37 Fair Empl.Prac.Cas. (BNA) 1127,

24 Empl. Prac. Dec. P 31,387, 1 A.D. Cases 240

CHICAGO AND NORTH WESTERN RAILROAD (Chicago and North Western Transportation Company), Appellant-Petitioner, v. LABOR AND INDUSTRY REVIEW COMMISSION, Respondent.

No. 78-416.

Supreme Court of Wisconsin.

Argued Sept. 29, 1980.

Decided Oct. 28, 1980.

Roger S. Bessey, James T. Murray, Jr. (argued), and Borgelt, Powell, Peterson & Frauen, S. C., Milwaukee, on brief, for appellant-petitioner.

David C. Rice, Asst. Atty. Gen., with whom on the brief was Bronson C. La Follette, Atty. Gen., for respondent.

COFFEY, Justice.

This is a review of a court of appeals' decision ¹ affirming a judgment of the circuit court and a decision and order of the Labor and Industry Review Commission (Commission-Respondent) finding that the Chicago and North Western Railroad Co. (petitioner-railroad), had unlawfully discriminated against Glen A. Pritzl, a welder employed by the railroad on the basis of handicap, contrary to the Wisconsin Fair Employment Act, secs. 111.31 through 111.37, Stats.

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 return to work for the petitioner after the horse riding incident and the railroad disqualified him for employment as a welder on the basis of his epileptic seizures on April 24, 1972. The railroad refused to reinstate him despite the receipt of his physician's certification of capability to perform his usual duties. Further, it should be noted that the petitioner did not dispute Pritzl's testimony that he was seizure free from October 24, 1971, (second epileptic convulsion) through the date of his discharge, April 24, 1972.

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). ² Specifically, the hearing examiner was asked to determine if Pritzl's handicap, epilepsy, rendered him "physically or otherwise unable to perform" the duties of a welder according to the petitioner's standards. Since the ability to perform work safely is one aspect of the efficient performance of a job, ³ the bulk of the evidence adduced at the hearing concerned the job duties of welders and Pritzl's ability to safely perform those duties.

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 operated a tractor, bail loader and "motor cars" ⁴ in and around the railroad yard. He further testified that his primary duties, with a helper assisting, entailed welding rail joints, switch points and cutting the rails and the bolts used to fasten the rails to the ties with an acetylene torch. He also testified that he was at times required to work on and around bridges.

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. ⁵ These vehicles are used to transport the welder, his helper and their equipment to various job locations. A welder's equipment weighs between 160 and 230 pounds and consists of a rail grinder, hose, a tool box, acetylene torch and tanks, including oxygen. This equipment must be loaded and unloaded daily. The majority of the welder's time is spent working in and around switching areas with a helper, as well as working with crews. The welder frequently works in an area far removed from medical assistance (ofttimes up to 10 miles).

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.

Mr. R.L. Wilson, an assistant vice president of personnel services for the railroad testified that welders must on occasion stop working on a track to allow a train to pass. He stated that in such instances the welder and his helper are standing on opposite sides of the track within a few feet of the train for 10 to 15 minutes while inspecting the passing cars.

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 subspeciality in epileptology, 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. Davison 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 Mal attacks and/or Petit Mal 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 allowing an epileptic to operate motorized vehicles and that his sole concern in disqualifying Pritzl for employment as a welder was the danger and possibility that he might suffer an epileptic seizure while on the job and cause injury to himself and/or others. Further, he testified that the working environment Pritzl would encounter in the future as a welder would be hazardous to his health and/or the health of his fellow employees.

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 antiepileptic 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 if there was someone working with him who had prior knowledge of the epileptic's seizure disorder and was in a position to come to his assistance. Further, Dr. Millen stated that he would recommend that Pritzl not work in an environment that presents a possibility of bodily injury to him or to others should a seizure occur. In this regard, Dr. Millen stated that it would be ill advised to allow Pritzl to work around mobile equipment (trains) or machinery that moves back and forth in close proximity to his body, unprotected electrical devices, scaffolds, ladders, or elevated structures without railings that could prevent his falling, should he suffer a seizure and lose consciousness.

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....