651 Proof of medical facts
[See sec. 123.6 also]

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).

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 336, 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 Hosp. & Clinics Auth. (LIRC, 02/12/07).

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’y (LIRC, 08/05/05).

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. LIRC (Ct. App., Dist. II, unpublished opinion, 08/03/05).

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).

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), Wis. Stats. Jones v. United Stationers (LIRC, 01/25/01).

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, 240 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, 240 Wis.2d 209, 621 N.W.2d 633.

No expert medical testimony was required to establish that the Complainant had a serious health condition within the meaning of the Wisconsin Family and Medical Leave Act where there were outward or overt manifestations of the fact that her condition interfered with her ability to perform her work duties. However, expert medical testimony was necessary to establish that her leave was medically necessary where her serious health condition did not manifest symptoms that lay people would recognize as necessitating a leave. Sieger v. Wis. Pers. Comm’n, 181 Wis. 2d 845, 512 N.W.2d 220 (Ct. App. 1994).

The Complainant failed to establish that she had a handicap where she never produced any expert medical evidence to establish that she had such a condition, or that the condition would satisfy the standard for an actual impairment. Two medical excuses were insufficient to establish an actual impairment since they merely referred to the Complainant's condition as an illness. The record was devoid of sufficient evidence to establish what condition the Complainant had, the nature of the condition, or the extent of the condition (i.e., whether it was temporary or permanent in nature). Plaski v. Blue Cross/Blue Shield United of Wis. (LIRC, 05/21/93).

Several letters to the employer from the Complainant’s psychologist were not adequate to satisfy the employer’s request that the employee provide certification from a health care provider explaining the extent to which the employee was unable to perform his or her employment duties under the Wisconsin Family and Medical Leave Act. The letters did not address specifically the employee’s ability to perform employment duties and the general finding of a 50 percent disability from the Department of Veteran Affairs failed to specifically address the Complainant's ability to perform his employment duties. Therefore, the letters did not comply with the employer's request for medical certification. Randolph v. DILHR (Ct. App., Dist. II, unpublished opinion, 05/13/92).

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).

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. Alcoholism is a disease, the diagnosis of which is matter of expert medical opinion proved by a physician and not a layman. Schaafs v. Schultz Sav O Stores (LIRC, 11/06/86).

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).

DILHR (LIRC) commissioners become virtual medical experts as a result of the volume of testimony that they hear and evaluate and they may use this expertise to accept or reject any or all such testimony. Bucyrus-Erie v. DILHR (Parks) (Dane Co. Cir. Ct., 05/14/77), aff’d, 90 Wis. 2d 408, 280 N.W.2d 142 (1979).

Merely because a physician states an opinion to a reasonable degree of probability or certainty does not require an administrative agency to accept such an opinion. DILHR may reject such statements made by two doctors testifying for an employer where five doctors thought it would be safe for an epileptic employee to return to work and where the employee possessed an unrestricted driver’s license. Chicago & N.W. R.R. v. DILHR (Pritzl) (Dane Co. Cir. Ct., 06/15/78).

It is a long-standing rule in Wisconsin that it is for DILHR, and not the courts, to evaluate conflicting medical testimony and assess its weight and credibility. Soo Line R.R. v. DILHR (Hintz) (Dane Co. Cir. Ct., 02/25/77).