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



ERD Case No. 200402916

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 31, 2006
ruthebr . rsd : 115 : 9

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner


Procedural Issue

The complainant failed to file a list of potential hearing witnesses or copies of potential hearing exhibits prior to hearing as required by Wis. Adm. Code 218.17.(1) As a result, the administrative law judge (ALJ) excluded certain of the witness testimony and exhibits offered by the complainant. The complainant challenges these rulings in her appeal to the commission.

The complainant had ample notice of this requirement. When the notice of hearing was issued on March 8, 2005, the copy sent to the complainant was accompanied by an information sheet describing the hearing process and its requirements. The notice stated that, "It is very important that you read this information sheet and follow the instructions it provides." The first entry on the information sheet reads:


In addition to this, a copy of the administrative rules was included with the information sheet.

In correspondence to the parties dated March 31, 2005, the assigned ALJ reminded the parties that the existence of a disability must be established through competent medical evidence, either expert testimony or certified medical records, and that the parties should review the materials sent with the notice of hearing, including the information sheet and the statutes and administrative rules.

In correspondence to the parties dated May 13, 2005, the assigned ALJ reminded the parties that medical records must be certified in order to constitute competent medical evidence at hearing, and that, if they had any questions, they should contact her.

Despite these cautions, the complainant did not file her witness list or copies of her hearing exhibits prior to hearing. As a result, the respondent objected to the complainant's offer of witness testimony other than her own, and to the complainant's offer of exhibits other than exhibit 2. The ALJ sustained this objection as to the complainant's witnesses, and as to complainant's exhibits other than those which duplicated exhibits noticed by the respondent.

The purpose of the prehearing notice requirement of Wis. Adm. Code § DWD 218.17 is to avoid surprise for the parties at hearing. See, Scott v. Sno Bird Trailer Co., ERD Case No. 8802744 (LIRC Dec. 19, 1990); Berglund v. The Post Crescent Co., ERD Case No. 199900817 (LIRC Jan. 31, 2001). The test for determining whether exhibits or witness testimony should be excluded for failing to meet this requirement is whether the opposing party has been prejudiced by the lack of notice. See, Peace v. Milwaukee Plating Co., ERD Case No. 8951436 (LIRC Aug. 21, 1992).

The commission agrees with the ALJ's rulings. The complainant was not reasonably justified, particularly given the numerous cautions to her to review applicable hearing requirements, in failing to provide notice of her potential witnesses and exhibits prior to hearing. Even though respondent's counsel may have viewed certain of these documents as part of the investigative process, it was prejudiced, other than in regard to the documents it noticed as exhibits (see, Scott, supra.) which the ALJ did not exclude, when it had no reason to be aware of which of the numerous documents which are part of the investigative file the complainant intended to rely upon at hearing. See, Lloyd v. Gareth Stevens, Inc., ERD Case No. 200104244 (LIRC June 18, 2004).

In addition, complainant's exhibits 1, 7, 8, 9, and 10 appear on their face to be medical records. These records are not certified. The ALJ cautioned the complainant twice in writing that she would not receive into the record for purposes of establishing the existence of a disability copies of medical records which had not been certified.

Probable cause issue

The complainant's initial burden in a disability discrimination case is to establish that she is an individual with a disability within the meaning of the Wisconsin Fair Employment Act (WFEA). Boynton Cab Co. v. DILHR, 96 Wis. 2d 396, 291 N.W.2d 850 (1980); Target Stores v. LIRC, 217 Wis. 2d 1, 576 N.W.2d 545 (1998). The WFEA defines a disabled individual in Wis. Stat. § 111.32(8) as one who:

(a) Has a physical or mental impairment which makes achievement unusually difficult or limits the capacity to work;

(b) Has a record of such an impairment; or

(c) Is perceived as having such an impairment.

An "impairment" for purposes of the WFEA is a real or perceived lessening or deterioration or damage to the normal bodily function or bodily condition, or the absence of such bodily function or condition. City of La Crosse Police and Fire Comm. v. LIRC, 139 Wis. 2d 740, 407 N.W.2d 510 (1987). Proof of a disability requires competent medical evidence of the employee's alleged impairment. Erickson v. LIRC, 2005 WI App 208, 704 N.W.2d 398 (Ct. App. 2005). An impairment must be permanent in order to constitute a cognizable disability within the meaning of the WFEA. Erickson, supra.

The test to determine whether an impairment makes achievement unusually difficult is whether there is a substantial limitation on life's normal functions or on a major life activity. Target Stores, supra. By contrast, the "limits the capacity to work" test refers to the particular job in question. Brown County v. LIRC, 124 Wis. 2d 560, 369 N.W.2d 735 (1985). The inquiry concerning the effect of an impairment is not about mere difficulty, but about unusual difficulty. AMC v. LIRC, 19 Wis.2d 706, 350 N.W.2d 120 (1984); Jones v. United Stationers, Inc., ERD Case No. 199803598 (LIRC Jan. 25, 2001). It is not enough to state a diagnosis or to list symptoms. The complainant must explain through credible and competent evidence how or to what degree these symptoms made achievement unusually difficult for her. Smith v. Aurora Health Care, ERD Case No. 199702722 (LIRC August 25, 2000).

Clearly, the complainant failed to show that she suffered from a permanent impairment. The only competent medical evidence of record is the IME which stated that she did not.

The question then becomes whether the record supports a conclusion that the respondent perceived the complainant to be disabled.

Although the complainant requested occasional breaks from standing and walking, wore a wrist brace, and used a cane, it is clear from the evidence offered by the complainant in her case in chief that the respondent, relying upon the IME, perceived that the complainant had healed from her injuries, was not permanently disabled, and did not require these accommodations.

The complainant failed to sustain her burden or proof. The complainant had full and fair notice and opportunity to present competent medical evidence showing that she suffered from a permanent disability, but she failed to do so. The evidence she did present simply does not support a conclusion that the respondent perceived her to suffer from such a disability.

In her appeal to the commission, the complainant offers certain certified medical records and requests that the commission consider them. As stated above, however, the complainant had full and fair opportunity to participate in the hearing process, and further hearing to permit her to augment the hearing record is not merited as a result. The commission, of course, may only consider the evidence which is of record in rendering its decision.

In her appeal, the complainant also alleges that she had been retaliated against by the respondent. However, a retaliation allegation is not set forth in her charge, and is not properly cognizable here as a result.

cc: Attorney Michael Cieslewicz

Appealed to Circuit Court.  Affirmed November 3, 2006.  Appealed to the Court of Appeals.  Reversed,  March 18, 2008, Rutherford v. LIRC and Wackenhut Corp., 2008 WI App 66, 309 Wis. 2d 498, 752 N.W.2d 897.

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(1)( Back ) This code provision states:

By no later than the tenth day prior to the day of hearing, the parties shall file with the division and serve upon all other parties a written list of the names of witnesses and copies of the exhibits that the parties intend to use at the hearing. For the purpose of this section, service is complete on mailing rather than on receipt. The administrative law judge may exclude witnesses and exhibits not identified in a timely fashion pursuant to this section. This section does not apply to witnesses and exhibits offered in rebuttal which the party could not reasonably have anticipated using prior to the hearing. 


uploaded 2006/02/03