LEO SCHUPANITZ, Complainant,
VS.
NORTH CENTRAL IOWA PORK PRODUCERS, NORTH IOWA POW LIMITED, and
N.I.P., LTD, Respondents.
FINDINGS OF FACT
1. The complainant, Leo
Schupanitz, timely filed verified complaint CP# 04-82-862.5 on
March 26, 1982, charging North Central Iowa Pork Producers, RFD3,
Clear Lake, Iowa, with discrimination in employment on the basis
of job related injury.
2. The complaint was amended
on October 11, 1985, to include as respondent North Iowa Pork
Limited, RFD3, Clear Lake, Iowa.
3. The complaint was further
amended on December 30, 1985, to correct the name of Respondent
North Iowa Pork Limited to NIP Limited, RFD3, Clear Lake, Iowa.
4. Investigation of the
case was completed on October 16, 1985, probable cause found on
November 18, 1985, conciliation attempted and notice of failure
issued March 25, 1986, and Notice of Hearing issued September
15, 1986.
5. Leo Schupanitz started
work with North Central Pork Producers on May 15, 1981, in a refeeding
program. This was a
part-time, temporary position. In September 1981, the job was
changed to full-time. On November 20, 1981, Leo was promoted to
the grower-finisher area. This job included keeping pens clean,
water lines open, alleyways clean, gates fixed and limiting the
number of pigs in each pen.
6. On or about December
13, 1981, Leo injured his back while on the job. Larry Hirsch,
the manager, suggested he see Lyle H. Abbas, a chiropractor. Leo
followed through on the suggestion and saw Dr. Abbas several times.
He was disabled and off work until January 11, 1982, when he was
released to return to work. In his letter to the worker's compensation
insurance adjuster, Dr. Abbas diagnosed Leo as having an
"acute lumbar back strain of mild to moderate severity...
" (See Respondent's Exhibit A). Dr. Abbas stated that: "...it
is likely the patient will recover without significant weakness
and if he avoids any future injury or strain should have no more
difficulty with it." Dr. Abbas told Leo that, when returning
to work, he should be careful not to over-lift or overexert his
back for several weeks so that it could become stronger. (Transcript
111) Leo returned to see Dr. Abbas on January 29, 1982, complaining
of back problems again reportedly from shoveling three days earlier.
He was treated on three occasions after that and released
with the same instructions as in January. After his last visit
on February 5, 1982, Dr. Abbas expressed the opinion that if Leo
stayed off work for a couple of months and completely rested his
back, he would probably be able to do the same amount of work
that he did prior to the injury. But, if he returned to work at
that time, he was restricted to lifting 25 pounds and was not
to do repeated bending and stooping. Leo returned to work. The
restrictions were to continue for a few months until all the symptoms
disappeared. The doctor noted that it was possible that there
would always be some degree of weakness in his lower back and
that he may never again be able to do the same heavy work that
he was doing prior to the injury (Transcript 112).
7. Leo had received no complaints
about his work prior to the injury while working in the refeeder
program. Hirsch, the manager, stated that he had some doubts about
promoting Leo to the grower-finisher area. After Leo's return
in January, Hirsch asked Dale Heimstra, the person who worked
directly over Leo, to talk to Leo about his work problems. Hirsch
requested Dale to make up a list of duties for Leo in the hope
that such a list would help the situation. Sometime in February
1982, Hirsch informed Leo that he was not doing his job. Dates
of record when Leo went to Dr. Abbas after returning to work were
January 29, February 1, and February 5. Heimstra, Leo's boss,
talked to him about his work on January 25 and February 11. Hirsch
talked to him on February 23, gave him 2 weeks notice on March
1, 1982, with termination on March 12, 1982. (Respondent's Exhibit
B). The reasons given for the termination were that Leo was not
doing his job, i.e., not cleaning the pens, not fixing the water
lines, allowing loose gates, and having too many hogs in some
of the pens.
8. Larry Hirsch was employed
as manager of North Central Iowa Pork Producers from 1976 until
November 1983. Dick Rieman, Lao's brother-in-law who worked for
North Central, recommended
Leo for the temporary position which was open in May 1981. In
December, Leo was injured on the job. When Leo returned in January,
he was considered by Hirsch to be without restrictions.
9. North Central Iowa Pork
Producers was a 700 - sow farrow- to-finish operation involved
in breeding stock and marketing hogs which began in 1975. Sam
Kennedy was the corporate secretary who functioned as a liaison
between the board of directors and management. Larry Hirsch reported
monthly to the board of directors and in between the monthly meetings
reported to Sam Kennedy. North Central had between 6 and 8 employees.
Kennedy stated that the grower-finisher area required more responsibility
and more attention to detail than did the refeeding program.
10. A worker's compensation
claim was filed on January 8, 1982. Dr. Abbas submitted a letter
dated January 12, 1982, to Scott T. Bennett, insurance adjuster,
noting that Leo was totally disabled from time of injury (December
13, 1981) until January 8, 1982 and was released to return to
work as of January 11, 1982. (Respondent's Exhibit A).
11. Kennedy stated that
it is normal practice to accommodate workers who have injuries
and they would have accommodated Leo had they been informed of
any restrictions. He further stated that Leo was terminated, not
because of his injury, but because of his work performance.
12. North Central Iowa Pork
Producers Corporation purchased all stock except that of C. Jack
Kennedy. C. Jack Kennedy, therefore, remained the sole stockholder.
C. Jack Kennedy is the father of Sam Kennedy. The Corporation
then sold a portion of its assets in December of 1982, to N.I.P.
N.I.P. is a corporation now owned by Sam Kennedy and E.W. Miller.
It is now in the business of raising feeder pigs. N.I.P. purchased
the facility, stock, and supplies from North Central for $310,000.00.
The transition took place over a period of 18 months after purchase
of North Central's assets. North Central is still a corporation,
but primarily the contract holder of N.I.P.'s purchase contract.
That contract was assigned to Mason City Production Credit Association.
13. Identified employees
of North Central who became employees of N.I.P. were: Richard
Rieman, Steve Kunze, Dale Heimstra, Rickey Rinnels, Jay Montag,
and Larry Hirsch. Hirsch, manager of North Central, became manager
of N.I.P.
14. Leo earned $2,186.66,
from North Central during the year 1982. This would have been
for weeks beginning January 14 through March 12. He also received
$2,624.75 in unemployment compensation in 1982.
15. Complainant incurred
attorney fee expense in the amount of $347.40, when represented
by Robert S. Kinsey Ill. (See Complainant's Exhibit 24).
16. After his termination,
Leo went to see Dr. Janda at the request of the worker's compensation
insurance adjuster. Subsequent visits occurred in May, June, September,
October, November and December of 1982. In September he was admitted
to the hospital for observation. He was diagnosed as having a
musculoskeletal type of low back pain, possibly secondary to underlying
degenerative arthritis of the lumbar spine. He was restricted
in bending, stooping, with a lifting restriction of 20 lbs. Dr.
Janda's opinion was that the healing period would end 12-15- 82,
and that he had a permanent, partial physical impairment 10% whole
person.
17. On January 17, 1983, a Dr. Walker diagnosed Leo as having a permanent disability of 6% of the body as a whole superimposed upon a preexisting 12% of the body as a whole, due to degenerative changes or a total of 18 % impairment. The parties stipulated before the Industrial Commissioner to a 25 % permanent, partial disability. Total entitlement including commuted value was $24,726.47. (See Complainant's Exhibit 23).