Estate of Szleszinski v. Lirc

Citation2007 WI 106,736 N.W.2d 111
Decision Date18 July 2007
Docket NumberNo. 2004AP3033.,2004AP3033.
PartiesESTATE OF Leon P. SZLESZINSKI, by its Special Administrator, and Darlene Szleszinski, Petitioners-Appellants, v. LABOR & INDUSTRY REVIEW COMMISSION, Respondent-Respondent, Midwest Coast Transport, Respondent-Respondent-Petitioner, Transhield Trucking and Transhield Leasing Company, Respondents.
CourtUnited States State Supreme Court of Wisconsin
736 N.W.2d 111
2007 WI 106
ESTATE OF Leon P. SZLESZINSKI, by its Special Administrator, and Darlene Szleszinski, Petitioners-Appellants,
Midwest Coast Transport, Respondent-Respondent-Petitioner,
Transhield Trucking and Transhield Leasing Company, Respondents.
No. 2004AP3033.
Supreme Court of Wisconsin.
Argued April 26, 2007.
Decided July 18, 2007.

[736 N.W.2d 114]

For the respondent-respondent-petitioner there were briefs by Janice Rhodes, and Kravit, Hovel & Krawczyk, S.C., Milwaukee, and oral argument by Janice Rhodes.

For the petitioners-appellants there was a brief by Matthew A. Biegert and Doar Drill, S.C., New Richmond, and oral argument by Matthew A. Biegert.

For the respondent-respondent the case was argued by David C. Rice, assistant attorney general, with whom on the brief was J.B. Van Hollen, attorney general.


Midwest Coast Transport ("Midwest"), a commercial trucking company, seeks review of a published opinion of the court of appeals1 reversing a decision of the Labor and Industry Review Commission ("LIRC") that determined Midwest did not discriminate for reasons of disability against Leon P. Szleszinski ("Szleszinski"), an interstate commercial truck driver. Midwest prohibited Szleszinski, who suffered from Wilson's disease, from driving trucks leased to Midwest by Transhield Trucking and Transhield Leasing Company

736 N.W.2d 115

("Transhield") after receiving a doctor's recommendation that Szleszinski be disqualified from driving commercial trucks interstate due to his diagnosis of Wilson's disease.

¶ 2 Szleszinski filed a disability discrimination claim under the Wisconsin Fair Employment Act ("WFEA") against Midwest and Transhield. Mr. Szleszinski died while his claim was pending, and his estate was substituted as complainant.2 The hearing examiner3 ruled in Szleszinski's favor. LIRC reversed the hearing examiner's decision, concluding that the medical evaluation of the physician who recommended disqualifying Szleszinski was sufficiently "individualized" under Wis. Stat. § 111.34(2)(b) and (c) (2005-06)4 of the WFEA, and that Szleszinski could have challenged the evaluation under a dispute resolution procedure contained in United States Department of Transportation ("DOT") regulations.

¶ 3 After the Washburn County Circuit Court, Honorable Eugene D. Harrington, affirmed LIRC's decision, the court of appeals reversed, concluding that Szleszinski was not required to seek a determination of medical qualification from the DOT under the dispute resolution procedure before initiating his WFEA disability discrimination claim because (1) "the WFEA does not require individuals to exhaust other administrative remedies," and (2) the DOT procedure was inapplicable in this case because it applies only in disputes between the driver's physician and the carrier's physician, and both physicians in this case were hired by Midwest. Estate of Szleszinski v. LIRC, 2005 WI App 229, ¶¶ 17-21, 287 Wis.2d 775, 706 N.W.2d 345. The court of appeals also concluded that the medical evaluation upon which Midwest relied was "insufficient . . . as a matter of law" because it was not "individualized" under the WFEA. Id., ¶ 34.

¶ 4 Midwest sought review of the court of appeals' conclusion that Szleszinski was not required to seek a determination regarding medical qualification from the DOT under the dispute resolution procedure before filing his WFEA claim, and we granted review to address this issue.5

736 N.W.2d 116

¶ 5 We conclude that a driver need not seek a determination of medical qualification from the DOT prior to filing a disability discrimination claim under the WFEA. We also conclude that when a person's medical and physical qualifications to be an interstate commercial driver are material to a WFEA claim, and a dispute arises concerning those qualifications that cannot be resolved by facial application of the DOT regulations, such a dispute should be resolved by the DOT under its dispute resolution procedure. We further conclude that, under the WFEA's burden-shifting scheme, the carrier, not the driver, is the party that must seek a determination of medical and physical qualification from the DOT if the carrier intends to offer a defense that the driver was not qualified for medical reasons.

¶ 6 With regard to the issue before us on review, we therefore reverse the decision of LIRC and reinstate the hearing examiner's decision. We remand to LIRC to reinstate the decision and order of the hearing examiner and to grant the award ordered by the hearing examiner in this case.6


¶ 7 LIRC's February 26, 2004 decision contained the following findings of fact, which are undisputed. In 1981, at the age of 22, Szleszinski was diagnosed with Wilson's disease, a disorder of the metabolism in which a person is unable to process copper normally. The disease is marked by an increased output of copper in the urine, deposits of copper in the tissues, cirrhosis of the liver, pigmentation of the corneas, and degenerative changes in the central nervous system.

¶ 8 Szleszinski was employed as a truck driver for 15 years prior to his death in March 1999. Szleszinski had held a commercial drivers license since the early 1990s. In June 1995, Szleszinski was hired as an over-the-road truck driver by Transhield, which leases its trucks and drivers exclusively to Midwest. Midwest transports semi-trailer loads of freight in interstate commerce. Midwest required its drivers to be medically certified pursuant to federal motor carrier safety regulations. At the time of his hiring, Szleszinski disclosed that he had Wilson's disease and provided documentation demonstrating he had passed a medical examination and was certified to drive under the applicable DOT regulations.

¶ 9 In March 1996, Midwest received reports from two different sources that Szleszinski was driving erratically. Both reports alleged that Szleszinski's truck was observed weaving in traffic, and one alleged it forced another onto the shoulder of the highway. Szleszinski disputed that these incidents occurred. Midwest suspended Szleszinski from driving and sought a medical evaluation to determine whether Szleszinski was physically fit to drive.

¶ 10 Upon the recommendation of Occupational Health Associates of South Dakota ("OHA"), the company on which Midwest relied for medical evaluation of its drivers, Szleszinski was examined by Dr. Ali Choucair, a neuro-oncologist at the Marshfield Clinic. In a report dated March 19, 1996, Dr. Choucair found an "established diagnosis of Wilson's disease with very mild demonstrated deficit on the neurological examination." He recommended an MRI scan, "detailed psychometrics," and a DOT road test. He

736 N.W.2d 117

concluded, however, that "[Szleszinski's] deficit I do not believe is such that will prevent him from operating a motor vehicle."

¶ 11 Midwest then forwarded Dr. Choucair's evaluation and Szleszinski's medical records to OHA. Dr. Dana Windhorst, the director of OHA's Department of Occupational Medicine, reviewed the records but did not personally examine Szleszinski. On March 21, 1996, Dr. Windhorst issued a report which states, in relevant part:

I have reviewed Mr. Szleszinski's records, specifically the note from Ali Choieair [sic], M.D., Neurologist . . . . As I understand it, Mr. Szleszinski has a 19-year history of Wilson's disease, with diagnosis confirmed at the Mayo Clinic. The laboratory tests on Dr. Choieair's [sic] note was certainly consistent with Wilson's disease. As far as I can see, there is no question that this is the confirmed diagnosis, at least based on the information available to me.

The neurological examination did indicate some mild neurological deficits, specifically in the areas of coordination, and possibly some extrapyramidal problems as well.

In addition, there is the history, apparently twice, of this driver being observed to swerve on the highway, suggesting some problem with functional coordination during his driving.

Wilson's disease is a progressive neurological disease, and this is of grave concern, given the responsibilities of driving large commercial vehicles on the highways. The Department of Transportation Conference on Neurological Disorders and Commercial Drivers, dated July 1988, recommends, without exception, disqualification for individuals with confirmed diagnosis of Wilson's disease. Putting all this together, I cannot make a recommendation for this individual to be medically certified for DOT licensure. It is also my opinion that, regardless of the results of psychometric testing and MRI, that I would not change this recommendation.

The report of the Department of Transportation Conference on Neurological Disorders ("Conference Report") referenced in Dr. Windhorst's report recommended changes to 49 C.F.R. § 391.41(b)(7), (8) and (9), the administrative rules concerning regulation of drivers with neurological disorders. The conference report's specific recommendation concerning Wilson's disease was not adopted by DOT rule makers.7

¶ 12 Based on Dr. Windhorst's recommendation, on March 26, 1996, Midwest informed Szleszinski that he would not be allowed to drive equipment leased to Midwest. Because Transhield leased equipment exclusively to Midwest, this decision, in effect, ended Szleszinski's employment with Transhield.

¶ 13 On April 5, 1996, Dr. Stanley Skinner, a neurologist at the Minnesota Clinic of Neurology, examined Szleszinski regarding his employment with another trucking company.8 Dr. Skinner determined

736 N.W.2d 118

that the diagnosis of Wilson's disease should not affect Szleszinski's employment as a truck driver. Dr. Gary A. Johnson reviewed an MRI of Szleszinski's head at his request and found that it was normal.

¶ 14 Despite the adverse evaluation of Dr. Windhorst, Szleszinski's DOT certification was never suspended or revoked, and...

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