2005AP106 Doepke-Kline v. Labor and Industry Review Commission

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“Doepke-Kline relies on the Chicago, Milwaukee court’s statement that ‘handicap … must be defined as including such diseases as asthma which make achievement unusually difficult,’ 62 Wis. 2d at 398, arguing that this means asthma is a disease that always makes achievement unusually difficult. While this may be a reasonable reading of the sentence in isolation, the context of the sentence reveals another reading: that diseases such as asthma are handicaps if they make achievement unusually difficult. The context of the statement is that the court is rejecting the employer’s proposed narrow definition of handicap, which, apparently in the court’s view, would eliminate asthma under all circumstances from being a handicap. …

“Thus, Chicago, Milwaukee is not addressing the issue that Doepke-Kline asserts it decided: whether, when a complainant asserts she has an impairment that makes achievement unusually difficult or limits the capacity to work, need she prove only the diagnosis of asthma? Cases decided after Chicago, Milwaukee persuade us that Doepke-Kline must do more than prove that she has a diagnosis of asthma. … First, the claimant must establish that there is a real or perceived impairment — with an impairment defined as ‘a real or perceived lessening or deterioration or damage to a normal bodily function or bodily condition, or the absence of such bodily function or such bodily condition. [Citation]. Second, the claimant must establish that such a condition actually makes or is perceived as making achievement unusually difficult or limits the capacity to work. …

“The Commission arrived at this same interpretation of the case, and, thus, did not err in rejecting Doepke-Kline’s argument that a diagnosis of asthma alone was sufficient to establish that she had a disability under Wis. Stat. § 111.32(8). … The Commission applied the analysis established in City of La Crosse [Police and Fire Comm’m v. LIRC, 139 Wis. 2d 740 (1987)] in its determination that Doepke-Kline did not prove she was an individual with a disability under Wis. Stat. § 111.32(8). We conclude this is the correct standard. Doepke-Kline does not develop an argument that, if this is the correct standard, the Commission erred in concluding she was not disabled based on its factual findings. Nor does she develop an argument that the Commission’s findings of fact are not supported by the requisite evidence.”

Order affirmed.

Recommended for publication in the official reports.

Dist IV, Waushara County, Murach, J.; Vergeront, J.

Attorneys:

For Appellant: John S. Williamson Jr., Appleton

For Respondent: David C. Rice, Madison; Lisa M. Bergersen, Milwaukee