P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)



ERD Case No. 199604180, EEOC Case No. 26G970041

An administrative law judge (ALJ) for the Equal Rights Division of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.


The decision of the administrative law judge (copy attached) is affirmed.

Dated and mailed: January 16, 1998
michald.rsd : 110

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

James A. Rutkowski, Commissioner


The issues presented by this case are whether the Administrative Law Judge had the authority to make an order that Michalzik execute a medical records release and, if so, whether dismissal of Michalzik's complaint was an appropriate sanction for his refusal to comply with that order.

In proceedings before the Equal Rights Division under the Fair Employment Act, pre-hearing discovery is available to the same extent as set forth in Wis. Stat. Chapter 804. Wis. Admin. Code Ch. ILHR 218.14 (3). Wis. Stat. 804.10 (1) provides:

When the mental or physical condition, including the blood group or the ability to pursue a vocation, of a party is in issue, the court in which the action is pending may order the party to submit to a physical, mental or vocational examination. The order may be made on motion for cause shown and upon notice to all parties and shall specify the time, place, manner, conditions and scope of the examination and the person or persons by whom it is to be made.

The commission concludes that the ALJ's order was an appropriate exercise of his authority under this provision. It is clear that in a proceeding such as this, in which there is an allegation of discrimination because of handicap, "the mental or physical condition, including . . . the ability to pursue a vocation, of a party is in issue", within the meaning of the statute. Time Insurance had requested the execution of a medical records release so that the independent expert who was to conduct the examination would have the necessary background information about Michalzik's condition to be able to render a fully informed opinion. This was a reasonable request, and it was clearly the reason that the Administrative Law Judge issued his order. As such, he was simply exercising his authority under Wis. Stat. 804.10 (1) to "specify the . . . manner, conditions and scope of the examination".

The commission has considered the fact, that subsection (2) of Wis. Stat. 804.10 provides that in one particular sub- category of cases in which a party's mental or physical condition is in issue -- i.e., cases in which the plaintiff is actually seeking damages for personal injury -- the tribunal "shall" direct that a medical records release be executed. The commission concludes that this does not necessarily imply that such an order can not also be issued under subsection (1), in the sound discretion of the tribunal. The commission finds support for this conclusion, in Wis. Stat 905.04, which provides that the general rule of physician-patient privilege does not exist as to communications relevant to or within the scope of discovery examination of an issue of the physical, mental or emotional condition of a patient "in any proceedings in which the patient relies upon the condition as an element of the patient's claim or defense". This makes it clear that, even in cases in which there is no "action brought to recover damages for personal injuries" within the meaning of Wis. Stat. 804.10 (2), if a party's physical or mental condition is relied upon by them as an element of their position in the case then there is no physician-patient privilege -- and thus no impediment to discovery of medical facts. Therefore, a tribunal should be able to exercise its discretion in particular cases to order the execution of a medical records release as an adjunct to a medical examination ordered under Wis. Stat. 804.10 (1).

There is no question but that Michalzik refused to comply with the discovery order that he execute a medical records release. The order was related to an issue (the nature of Michalzik's disability) of very great importance in this handicap discrimination case, and the inability of Time Insurance to have effective discovery in that area would have seriously compromised its ability to present a defense. The sanction of dismissal of the claim was appropriate under these circumstances. The commission has previously upheld the dismissal of complaints as a sanction for similarly serious failures to comply with discovery; see, Castiglione v. Giesen & Berman (LIRC, 6/25/97); Dobbs v. Super 8 Motel (LIRC 10/15/96); Burgess v. Milwaukee Forge (LIRC, 06/13/95); Smith v. Norris Adolescent Center (LIRC, 04/21/89).

NOTE: Prior to the time he filed his complaint alleging a violation of the Fair Employment Act (FEA), Michalzik had also filed (also with the Equal Rights Division, as required) a complaint against Time Insurance under the Wisconsin Family and Medical Leave Act (FMLA). That complaint was assigned ERD Case No. 199600692. As of May 2, 1997, the FEA and the FMLA cases were consolidated for hearing by the Equal Rights Division, and subsequent proceedings before the Administrative Law Judge involved both cases.

As a result of this consolidation, the Order of Dismissal issued by the Administrative Law Judge in this matter dismissed both FMLA and FEA claims, in a single decision which clearly covered both cases and referred to both case numbers. The ERD then attached to that decision a Notice of Appeal Rights which, although it bore only the case number of the FEA claim in the caption, nevertheless indicated that any party who was dissatisfied with "the attached Decision and Order of the Administrative Law Judge" could file a written petition for review by the Labor and Industry Review Commission. Michalzik then filed a petition with the commission referencing both case numbers and requesting "review on the above case's (sic)".

However, the FMLA provides, at Wis. Stat. 103.10(12)(b), that an employe who believes his or her employer has violated sub. (11) (a) or (b) may file a complaint with the department, and ALJ decisions in such cases are subject to direct judicial review, see, Wis. Admin. Code Section ILHR 225.22. Administrative law judges' decisions in FMLA cases are not reviewable by the commission. See, e.g., Kayler v. Stoughton Trailers (LIRC, October 27, 1997). Therefore, to the extent that the petition for review in this case was actually intended to request review of the dismissal of the FMLA claim, that request cannot be granted because the commission has no authority to review decisions by administrative law judges in FMLA cases.

cc: Attorney Pamela Ploor

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