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Erickson v. Labor and Industry Review Commission8/3/2005
term of art, but according to common and approved usage. Erickson further contends that he presented sufficient evidence that Quad perceived him as having a physical impairment that limited his capacity to work.
On appeal, we review the LIRC decision and not the judgment of the circuit court. See Schwartz v. DOR, 2002 WI App 255, , 258 Wis. 2d 112, 653 N.W.2d 150. Three standards of deference govern judicial review of agency conclusions of law and statutory interpretation: great weight, due weight, and de novo. Wolter v. DOR, 231 Wis. 2d 651, 655-56, 605 N.W.2d 283 (Ct. App. 1999). Great weight, the most deferential standard, applies when (1) the agency was charged by the legislature with the duty of administering the statute, (2) the agency's interpretation of the statute is long-standing, (3) the agency employed its expertise or specialized knowledge in forming the interpretation, and (4) the agency's interpretation provides uniformity and consistency in the application of the statute. Id.
Here, any decision made by LIRC will be given great weight deference due to the agency's knowledge and experience in the application of the WFEA. See Target Stores v. LIRC, 217 Wis. 2d 1, 13, 576 N.W.2d 545 (Ct. App. 1998). Accordingly, we will sustain LIRC's decision unless it directly contravenes a statute, is clearly contrary to legislative intent, or lacks a rational basis. See Harnischfeger Corp. v. LIRC, 196 Wis. 2d 650, 661-62, 539 N.W.2d 98 (1995).
We turn first to Erickson's argument that LIRC improperly ruled that Wis. Stat. § 111.32(8) requires a permanent impairment. Erickson relies on Target Stores for support of his contention that a temporary disability is actionable under the WFEA. The analogy fails, however, because in Target Stores the parties stipulated to a disability. Target Stores, 217 Wis. 2d at 10. The sole issue we addressed there was whether "clemency and forbearance" would have been a reasonable accommodation of the employee's conceded disability. Id.
For over twenty years, LIRC has interpreted the term "disability" within the WFEA to require a permanent impairment. Had our legislature considered this an inappropriate reading of the statute, it could have revised the language to include temporary impairments. We will not impose a new interpretation where our legislature has seen fit to let the statutory language, as applied by LIRC, stand. Cf. A.B.C.G. Enters., Inc. v. First Bank Southeast, N.A., 178 Wis. 2d 370, 376, 504 N.W.2d 382 (Ct. App. 1993) (where a statute is re-enacted with no change in the pertinent language, a judicial interpretation of the prior statute is presumed to apply), aff'd, 184 Wis. 2d 465, 515 N.W.2d 904 (1994). We conclude that LIRC properly interpreted WIS. STAT.§ 111.32(8) to require Erickson to demonstrate a permanent impairment.
Next, Erickson argues that he submitted sufficient proof to establish a disability under the WFEA. To prevail on his disability discrimination claim, Erickson must establish that he has a physical impairment as contemplated by the WFEA. A physical impairment is an "actual lessening, deterioration, or damage to a normal bodily function or bodily condition, including the absence of such function or condition." City of La Crosse Police & Fire Comm'n v. LIRC, 139 Wis. 2d 740, 760, 407 N.W.2d 510 (1987). Proof of a disability requires competent medical evidence of the employee's alleged impairment. See Connecticut Gen. Life Ins. Co. v. DILHR, 86 Wis. 2d 393, 407-08, 273 N.W.2d 206 (1979) (diagnosis of a disability, here alcoholism, requires expert medical opinion).
At his hearing, Erickson testified that he injured himself at work, his back muscles tightened up, he
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