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).