123.6 Proof of medical facts

[Also see sec. 651]

The Complainant is not necessarily required to present certified medical evidence in order to prove that he has a disability. Mueller v. Pomp’s Tire Serv., Inc. (LIRC, 12/21/18).

Proof of disability is not meant to be onerous. The Complainant is not required to bring her doctor to the hearing and can prove her case through her own testimony and competent medical evidence. Staudinger v. Cnty. of Manitowoc (LIRC, 12/11/2018).

Generally, a Complainant lacks the competence to express an opinion about the nature, extent and permanence of a medical condition. The hearsay medical documents in evidence did not add up to a coherent description of the Complainant’s impairment. Mueller v. Chart Energy & Chemicals, Inc. (LIRC, 01/15/15).

The Commission has often endorsed the view that competent medical evidence is required to establish the existence, nature, extent, and permanence of an impairment, if disputed as a matter of fact. However, an Administrative Law Judge should not peremptorily refuse to consider medical records simply because they are not certified or are not strictly competent. The prudent course is to consider and evaluate all relevant and material evidence in view of all of the surrounding facts and circumstances, notwithstanding that it may be technically hearsay. Hendon v. Wis. Bell, Inc. d/b/a AT&T (LIRC, 11/13/14), aff’d sub nom. Hendon v. LIRC (Milwaukee Co. Cir. Ct., 08/12/2015).

If an employee is discharged because of bad behavior which was caused by a disability, the discharge is, in legal effect, because of that disability. Whether an individual's bad behavior is caused by a mental disorder from which the individual suffers, though, is a question of medical/scientific fact on which expert testimony is required. It cannot simply be presumed that every act of bad behavior engaged in by a person who has a mental disorder, is caused by that mental disorder; it may or may not have been. The question is to be resolved by weighing the expert evidence in the record on that question. Maeder v. UW-Madison, UW Police (LIRC, 06/28/13).

Medical documentation of the Complainant’s panic and anxiety disorder did not show that it caused the degree of limitation necessary to establish a disability under the WFEA. The medical opinion offered in evidence was that the Complainant maintained the ability to perform her job. Lay testimony concerning the Complainant’s functioning on the job did not serve to prove disability; laypersons are not competent to connect observations of a Complainant’s conduct to a particular mental health condition. Wal-Mart Stores v. LIRC, 2000 WI App 272, 249 Wis. 2d 209, 621 N.W.2d 633. Even so, lay opinion, consistent with medical opinion, was that the Complainant maintained the ability to perform her job. Ryback v. Wis. Physicians Serv. (LIRC, 05/31/13).

Uncertified medical records are admissible in proceedings under the Wisconsin Fair Employment Act. However, the letter submitted by the Complainant in this case constituted uncorroborated hearsay evidence. The letter (which the Complainant introduced to establish that she is an individual with a disability) was on the letterhead of a medical provider; however, it was unsigned and unauthenticated. The letter purported to have been created four years prior to the Complainant’s employment by the Respondent, so it could not describe the status of the Complainant’s medical condition during the time of her employment with the Respondent. Further, the letter did not address the permanence of the Complainant’s medical condition. An ultimate or crucial finding of fact may not be based solely on uncorroborated hearsay evidence. Since the finding as to the existence of a disability in this case would be an ultimate or crucial finding, this letter was insufficient to support such a finding. Rybicki v. DJ Convenience (LIRC, 08/20/10).

It was error for an Administrative Law Judge to exclude medical records solely on the basis that they lacked certification. However, in this case, even if the Administrative Law Judge had not excluded medical records because they lacked certification, the disputed records would not have been sufficient to warrant a conclusion that the Complainant had a disability within the meaning of the Wisconsin Fair Employment Act. The medical documents consisted of an X-ray report, a memo from the Complainant’s family practice doctor, an unsigned and difficult-to-read medical report, and general instructions about post-surgical care. These documents suggested that the Complainant was suffering from neck, shoulder and back pain. However, they did not indicate that the Complainant had been diagnosed with any permanent medical condition that would constitute a disability. Thoreen v. Fabco Equip. (LIRC, 11/25/09).

Although the Court of Appeals in Rutherford v. LIRC, 2008 WI App 66, 309 Wis. 2d 498, 752 N.W.2d 897, held that medical records could not be excluded from Chapter 227 administrative hearings simply because they were not certified, the Court did not deal directly with the issue of the probative value of documents created by a medical provider and received into the hearing record if they were not authenticated either through certification or through the testimony of the provider. Any medical opinion stated in such a document would constitute hearsay evidence. Savaglio v. LeBlanc, Inc. (LIRC, 01/30/09).

Where the existence of a disability is in dispute, the Complainant must present competent medical evidence establishing the nature, extent, and permanency of an impairment. The only medical evidence the Complainant presented in this case was uncertified memos and reports prepared with respect to his worker’s compensation injuries. He provided no non-hearsay medical evidence showing what tests were performed and what diagnosis was reached. The Complainant contended that the expense of bringing a doctor to a discrimination hearing is burdensome to Complainants, who are often with limited means. The Complainant suggested that there should be a standard medical form which could be used for discrimination hearings. However, a Complainant can meet his burden of establishing a disability through presentation of certified medical documents or documents with “other circumstantial guarantees of trustworthiness.” Tschida v. UW-River Falls (LIRC, 12/30/08).

An Administrative Law Judge improperly refused to admit or consider uncertified copies of medical records which the Complainant wished to introduce at hearing. Chapter 227, Stats., requires very relaxed rules of evidence in administrative proceedings. Further, there is no administrative rule which requires the submission of certified copies of medical records. In excluding the uncertified copies, the Administrative Law Judge made no analysis of the factors governing admissibility of evidence in these hearings, which are provided by statute. The Complainant should have been permitted to introduce her treating doctor’s opinion that she had a permanent disability, where that opinion was stated in his treatment records, even though the Complainant had not been able to get certified copies of the records. Rutherford v. LIRC, 2008 WI App 66, 309 Wis. 2d 498, 792 N.W.2d 897.

In order to establish that she is an individual with a disability within the meaning of the Wisconsin Fair Employment Act, the Complainant must present competent medical evidence to establish the existence, nature, extent, and permanence of an impairment, if disputed as a matter of fact. It is not enough to state a diagnosis or to list symptoms. The Complainant must establish through credible and competent evidence how or to what degree these symptoms made achievement unusually difficult for her or limited her capacity to work. As a result, the fact that the Complainant’s treating physician rendered a diagnosis that she suffered from migraine headaches, or suffered the symptoms of tendonitis, would be insufficient alone to establish the existence of a disability. There was no competent medical evidence in the record to establish that the Complainant’s tendonitis was permanent. The medical evidence with respect to migraine headaches indicated that the condition was permanent, but that it did not create any restrictions which would impede the Complainant’s ability to perform her assigned duties. Thus, the Complainant failed to sustain her burden to prove that she qualified as an individual with a disability. Fields v. UW Hospitals & Clinics Auth. (LIRC, 02/12/07).

The Complainant asserted that she had various limitations in her ability to work. However, she did not have a physician testify about her alleged limitations, nor did she present any medical documentation to substantiate her alleged limitations. Absent competent medical evidence of the nature, extent, or permanency of her condition, the Complainant could not prove that she had a disability. Kubiak v. Child & Family Consultants of Green Bay (LIRC, 01/19/07).

To demonstrate that a disability exists under the Wisconsin Fair Employment Act, the Complainant must present competent evidence of a medical diagnosis regarding the alleged impairment. Erickson v. QuadGraphics (LIRC, 05/25/04); aff’d sub nom. Erickson v. LIRC, Washington Co. Cir. Ct., 10/27/04; aff’d, 2005 WI App 208, 287 Wis. 2d 204, 704 N.W.2d 398.

The medical evidence of record generally consisted of return-to-work slips, FMLA forms completed by the Complainant’s treating physicians, and a letter summarizing the results of an independent medical examination. The physicians who ostensibly authored these documents did not testify at hearing and, as a result, these documents were uncorroborated hearsay evidence. The documents were not certified and had no other circumstantial guarantees of trustworthiness sufficient to qualify for application of the hearsay exception set forth in sec. 908.03(24), Stats. As a result, the Complainant failed to show by competent medical evidence the existence, nature, extent, or permanence of any impairment. The Complainant’s testimony that she suffered a heart attack from which she had not fully recovered and that she was diagnosed with diabetes was not sufficient, without more, to satisfy this burden. Moreover, even if competent medical evidence establishing the existence of a cognizable impairment were a part of the record, the evidence did not show that the Complainant’s diabetes or heart condition placed a substantial limitation on a major life activity or on her capacity to work. Seil v. Dairy Farmers of Am. (LIRC, 08/26/05).

The Complainant failed to show by competent medical evidence that she suffered from an actual impairment within the meaning of the Wisconsin Fair Employment Act. The records that the Complainant submitted at hearing were ostensibly prepared by physicians who did not testify at hearing. As a result, these documents were uncorroborated hearsay evidence. The documents were not certified, and they had no other circumstantial guarantees of trustworthiness sufficient to qualify for application of the hearsay exception set forth in sec. 908.03(24), Stats. (There was, however, evidence that the Respondent perceived the Complainant as an individual with a disability.) Wodack v. Evangelical Lutheran Good Samaritan Soc. (LIRC, 08/05/05); aff’d sub nom. Wodack v. LIRC (Door Co. Cir. Ct., 03/07/06).

Competent medical evidence is required to establish the existence, nature, extent, and permanency of an impairment, if the impairment is disputed as a matter of fact. Grell v. Bachmann Constr. (LIRC, 07/15/05); aff’d sub nom. Grell v. LIRC (Dane Co. Cir. Ct., 02/22/06).

Medical treatment is sought for conditions which are disabling as well as for conditions which are not, and the mere fact that an individual sought medical treatment for a condition is insufficient to support a conclusion that this condition necessarily constituted a disability. In this case, the Complainant failed to offer any competent medical evidence establishing that his foot condition placed a substantial limitation on his life functions or activities during the period of his employment for the Respondent. The Complainant also failed to offer competent medical evidence to establish that his foot condition limited his capacity to work. Lester v. Compass Group USA (LIRC, 03/22/05).

Although the Respondent did not dispute that the Complainant had been treated for a neck and back injury and for carpal tunnel syndrome, the Complainant was required to offer competent medical evidence as to the nature, extent, and permanence of these conditions in order to sustain his burden to prove that these conditions constituted impairments within the meaning of the Wisconsin Fair Employment Act. Cramer v. Woodman’s Food Mkt. (LIRC, 01/14/05).

While it may not be necessary to have physician testimony in every instance, a party must present some competent evidence of disability. In this case, there was nothing to suggest that the Complainant attempted to submit a doctor’s statement at the hearing, and the only evidence related to his alleged impairment came from the Complainant and his wife. Even assuming that the Complainant had presented competent evidence of a physical impairment, he failed to adequately explain how or whether that impairment made achievement unusually difficult for him or limited his capacity to work. Nor did he demonstrate that the Respondent perceived him as having such an impairment. Snyder v. Copps Foods Ctr. (LIRC, 10/13/04) (unavailable online).

The testimony of the Complainant, a layperson, could not suffice as proof that she actually had particular medical conditions. Expert testimony must be adduced concerning matters involving special knowledge, skill or experience on subjects which are not within the realm of the ordinary experience of mankind. An employee will be found to have failed to establish that she actually had an impairment constituting a disability where she fails to introduce sufficient expert medical evidence to establish that point. Green-Brown v. Midwest Express Airlines (LIRC, 09/16/04).

The Complainant presented no medical evidence on his behalf, either in the form of physician testimony or competent medical records upon which a fact finder could base a conclusion about the nature of his back condition. Even if it was determined that the Complainant was competent to testify about his own medical condition and that no additional medical evidence was necessary, the Complainant’s testimony would not be sufficient to meet his initial burden where it was limited to a description of his symptoms and an explanation of the difficulties these symptoms posed with regard to his ability to perform the job. Such testimony, even if offered by a physician, would not establish an impairment within the meaning of the Wisconsin Fair Employment Act, where there was no indication as to: (1) what, if any diagnosis was made, (2) what the nature and extent of the condition was, or (3) whether the condition was a permanent one. Erickson v. QuadGraphics (LIRC, 05/25/04); aff’d sub nom. Erickson v. LIRC, Washington Co. Cir. Ct., 10/27/04; aff’d, 2005 WI App 208, 287 Wis. 2d 204, 704 N.W.2d 398.

The Complainant failed to sustain his burden of proving that he had been diagnosed with carpal tunnel syndrome or shoulder tendonitis. He offered no competent medical evidence to this effect. The only evidence he offered was his own hearsay testimony that he had obtained this diagnosis from a physician. Moller v. Metavante (LIRC, 11/13/03).

A drinking or alcohol abuse problem may or may not be a disability, depending on whether it has progressed to the state that it is non-volitional. Establishing that such a non-volitional condition exists requires that the Complainant introduce competent, expert medical evidence to this effect. Schleicher v. County of Dodge (LIRC, 10/17/03).

The Complainant failed to show probable cause to believe that he was suffering from a disability in 1999 (a pinched nerve in his kidneys which caused him to have to wait five or six minutes for his urine to flow). The Complainant only offered a hearsay document that purported to show the results of a test concerning urine flow in 1997. He offered no expert interpretation of the 1997 test, no medical evidence of the extent of the injury or its degree of permanence, and no medical evidence regarding his condition in 1999. (Alternatively, even assuming the Complainant was suffering from a disability, he failed to provide reason to believe that the Respondent treated him adversely because of a real or perceived impairment). Thompson v. Ashley Furniture Indus. (LIRC, 07/16/03).

Where there is conflicting medical evidence, the finder of fact determines which view of the evidence it will accept. Gramza v. Kwik Trip, Inc. (LIRC, 02/20/03).

The Complainant submitted sufficient competent evidence to warrant a conclusion that she suffers from carpal tunnel syndrome. She submitted a signed “Physician’s Statement of Disability,” in which her attending physician certified that she was hospitalized with bilateral carpal tunnel syndrome. In addition, she submitted two different independent medical evaluations, both showing a diagnosis of carpal tunnel syndrome. These reports, while not certified, had sufficient circumstantial guarantees of trustworthiness so as to fall under the hearsay exception contained in Sec. 908.03(24), Stats. Jones v. United Stationers (LIRC, 01/25/01).

Even assuming that a pamphlet describing the disability suffered by the Complainant was accepted as “expert testimony” regarding the nature and manifestations of the condition, the pamphlet did not provide direct evidence as to whether the Complainant’s behavior was influenced by his disability under the fact situation which led to his discharge. Expert testimony was required to establish that the conduct which formed the basis for the employer’s action in terminating the Complainant’s employment was caused by his disability. Wal-Mart Stores v. LIRC, 2000 WI App 272, 249 Wis. 2d 209, 621 N.W.2d 633.

Even though the Complainant suffered from the disease of obsessive-compulsive disorder (OCD), he was not an “expert” on OCD, since there is no indication in the record that he possessed scientific, technical or other specialized knowledge that would qualify him to give an expert opinion on whether certain behavior was caused by his OCD. Wal-Mart Stores v. LIRC, 2000 WI App 272, 249 Wis. 2d 209, 621 N.W.2d 633.

Expert testimony should be adduced concerning matters involving special knowledge, skill or experience on subjects which are not within the realm of the ordinary experience of mankind. Expert medical testimony was required to establish that the Complainant’s vociferous reaction to the announcement that another employee was being promoted to a position for which he had sought promotion was caused by his obsessive-compulsive disorder (OCD). Without expert medical testimony, the Department would be speculating as to whether a causal link existed between the Complainant’s disability and the conduct which triggered his ultimate discharge. Wal-Mart Stores v. LIRC, 2000 WI App 272, 249 Wis. 2d 209, 621 N.W.2d 633.

An Administrative Law Judge concluded that while the Complainant testified about some effects he experienced as a result of bipolar disorder, he failed to present expert medical evidence at the hearing which supported a conclusion that his condition constituted a disability. However, prior to the issuance of the ALJ’s decision in this matter there does not appear to have been any question that the Complainant’s bipolar condition constituted a disability. Also, at the hearing itself it was never contested that the Complainant had a disability. The various features of bipolar disorder as described in a standard medical text indicates that a bipolar disorder could very well substantially limit a major life activity, and/or limit the Complainant’s ability to perform the job in question. Chaffee v. Wyalusing Acad. (LIRC, 09/27/00).

In a disability discrimination case, the Complainant can be ordered to execute a medical records release as part of the discovery process. Michalzik v. Time Ins. Co. (LIRC, 01/16/98).

An expert medical witness was not necessary to establish that a Complainant was handicapped where the Complainant had an accident at a previous job and where she had been off of work for about a year. These facts, plus the fact that the Complainant was seeing a doctor and that she was wearing a TENS unit, were things about which the Complainant was competent to testify herself. Swanson v. State St. Stylists (LIRC, 11/26/97).

The evidence at hearing did not establish that the Complainant was an alcoholic and, thus, handicapped within the meaning of the Wisconsin Fair Employment Act since no expert medical opinion by a physician was presented. The only evidence in the record regarding alcoholism was assessment reports from Department of Human Services personnel showing that the Complainant suffered from “alcohol abuse,” and suspected alcohol dependency.” Hansen v. AKZO (LIRC, 03/23/94).

The Complainant failed to establish that he had a handicap, which he alleged was an eye problem, because the only evidence which he presented at the hearing was his own description of the symptoms he suffered when working around chemicals in the Respondent’s workplace. This does not constitute competent medical evidence of a handicap. Wollenberg v. Webex, Inc. (LIRC, 11/08/91).

The mere fact that the employer has made its employment decision in reliance upon the opinion of a doctor does not protect the employer from a finding of discrimination. Where there is conflicting medical evidence, the trier of fact conclusively determines which view of the evidence it will accept. Leach v. Town of Pleasant Prairie Fire Dep’t (LIRC, 04/23/91).

The employer was required to show to a reasonable probability that the Complainants, who were denied hire as traffic officers because they did not meet the employer's uncorrected vision standards, would be a hazard to themselves or others. Expert opinion testimony was not necessary to determine that the Complainants did not pose increased safety risks. Brown County v. LIRC (Phillips & Grinkey) (Ct. App., Dist. III, unpublished opinion, 02/27/90).

The Respondent's general standard precluding employment of persons with certain vision deficiencies was not entitled to automatic deference merely because it was based upon a Law Enforcement Standards Board administrative rule or because it was established with the help of a medical consultant. Grinkey v. Brown County Sheriff's Dep't (LIRC, 02/08/88), aff’d sub nom. Brown County v. LIRC (Phillips and Grinkey), (Ct. App., Dist. III, unpublished opinion, 02/27/90).

Although the Complainant testified that he had gone to a rehabilitation hospital for treatment and had been diagnosed as an alcoholic, the hearing examiner was entitled to give no weight to this testimony, since no expert testimony was received on the subject. Schaafs v. Schultz Sav-O-Stores (LIRC, 11/06/86).

An employee with grand mal epilepsy whose medication had not totally controlled his seizures and who had been at work during a seizure could be transferred away from the employer's drill press operation. A doctor’s recommendation that the employee could safely continue in his job was not conclusive because the doctor had no knowledge of the operation of a drill press and had never visited the employer’s plant. Reddick v. Snap-On-Tools (LIRC, 09/02/82).

Since alcoholism is a disease, its diagnosis is a matter of expert medical opinion by a physician and not by a layperson. Connecticut Gen. Life v. DILHR, 86 Wis. 2d 393, 273 N.W.2d 206 (1979).

An employer could not justify the vision standards it used to discharge a probationary employee where it did not introduce any statistical or medical study to validate its use of a less stringent standard for current employees. Chicago & N.W. Transport v. DILHR (Doetze) (Dane Co. Cir. Ct., 05/12/78).

Where the employer had no medical evidence indicating that its employee was not presently able to perform, it was unlawful to suspend him until the employer received the evidence, even where the purpose of the suspension was to obtain the evidence. Adams v. Soo Line R.R. (LIRC, 06/23/77).

A medical opinion that the employee's working conditions “could” be hazardous is not an adequate defense under the “reasonable probability” standard, since it suggests mere possibility. Western Weighing v. DILHR (Mears) (Dane Co. Cir. Ct., 05/09/77).

The state of being handicapped under the Act is a conclusion of law not amenable to lay testimony. A layperson’s belief that he was not handicapped is entitled to no weight whatsoever. Bauman v. Specialties (DILHR, 05/15/75).