2004AP3033 Estate of Leon P. Szleszinski v. Labor & Industry Review Commission, et al.

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“Midwest and LIRC suggest that Windhorst’s report reveals Szleszinski could not drive safely. We disagree and, moreover, we conclude Windhorst’s “opinion” is an insufficient report as a matter of law under the Code, which requires actual examination of the patient. Windhorst’s opinion was merely a conduit for application of a Department of Transportation conference report that never became a regulation.

“Windhorst’s report is also insufficient under the WFEA because the act requires a case-by-case assessment of each individual. Windhorst did not make an individualized determination about Szleszinski’s ability to drive, but recommended disqualification simply the because the Department of Transportation report said that all Wilson’s patients should be disqualified. While Midwest claims this constituted an individualized assessment because Windhorst reviewed Szleszinski’s individual records, Windhorst stated that test results would be irrelevant to his determination whether to disqualify Szleszinski. In other words, Windhorst had no plans to rely on an individualized assessment of Szleszinski’s abilities when the Wilson’s diagnosis was, in Windhorst’s mind, determinative of the outcome.

“Indeed, LIRC concedes Windhorst did not perform an individual assessment of Szleszinski but it argues that its decision should stand because federal safety regulations prevail over lesser state standards. We reiterate, however, that the federal regulations require a physical examination-something Windhorst did not provide. His report therefore cannot be considered a valid basis for a determination of Szleszinski’s fitness to drive. The only doctor who conducted a physical exam on Midwest’s behalf after the erroneous driving reports declined to disqualify Szleszinski absent further testing.”

Reversed and remanded.

Recommended for publication in the official reports.

Dist III, Washburn County, Harrington, J., Hoover, J.

Attorneys:

For Appellant: Matthew A. Biegert, New Richmond; Anne E. Schmiege, New Richmond

For Respondent: David C. Rice, Madison; Janice Rhodes, Milwaukee