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Estate of Szleszinski v. Labor & Industry Review Commission9/27/2005
Before Cane, C.J., Hoover, P.J., and Peterson, J.
The Estate of Leon Szleszinski appeals a judgment of the circuit court affirming the Labor and Industry Review Commission. LIRC reversed a determination by an administrative law judge that Midwest Coast Transport (Midwest) had wrongfully discriminated against Szleszinski when it terminated his employment due to his disability. Szleszinski contends there is no factual or legal basis for LIRC's determination that Midwest had a valid safety defense to his allegations of discrimination. We agree with Szleszinski and reverse the judgment in part, thereby reinstating the ALJ's decision, and we remand for a calculation of Szleszinski's attorney fees and costs.
Background
Szleszinski was hired as a commercial truck driver by Transhield Leasing Company and was to start on June 21, 1995. Transhield leases its trucks and drivers to Midwest exclusively. Transhield pays the drivers, but Midwest can approve or reject drivers. Midwest also oversees driver safety, including drivers' federally required Department of Transportation certification. Szleszinski has held his commercial driver's license since the early 1990s and has never had it suspended or revoked. He always passed his physicals, and his federal certification was valid through at least December 1998.
When Szleszinski was seventeen, he was diagnosed with Wilson's disease, a disorder that causes copper retention. Wilson's can manifest as neurological problems, liver disease, or other symptoms. Szleszinski's diagnosing physician, however, called it a "very mild" case and Szleszinski managed his disease with medication.
Prior to starting with Transhield and Midwest, Szleszinski had a physical examination performed by Dr. L. D. Carlson, who cleared Szleszinski to drive under the applicable federal regulations. Midwest knew Szleszinski had Wilson's when it initially accepted him as a driver. Accordingly, it consulted with a physician's assistant at Central Plains Clinic, an affiliate of Occupational Health Associates of South Dakota (OHA). Midwest typically relied on OHA for medical certification of its drivers. The physician's assistant concluded Szleszinski met the Department of Transportation standards, and Szleszinski began driving for Midwest.
In March 1996, Midwest received two complaints of erratic driving against Szleszinski. Szleszinski did not remember either incident. While the general practice for a driving report was to confer with the employee about safe driving habits, Midwest requested Szleszinski be medically re-evaluated. Carlson examined Szleszinski again and recommended he see a neurologist. Midwest made arrangements through OHA for Szleszinski to see Dr. Ali Choucair, a neuro-oncologist. Choucair noted that Szleszinski had some neurological impairment and suggested further testing, including a road test, but ultimately concluded: "His deficit I do not believe is such that will prevent him from operating a motor vehicle."
Midwest then sent Szleszinski's medical records, including Choucair's report, to Dr. Dana Windhorst at OHA. Windhorst reported:
I have reviewed Mr. Szleszinski's records, specifically the note from Ali Choucair, M.D. ...
The neurological examination did indicate some mild neurological deficits, specifically in the area of coordination ....
In addition, there is the history, apparently twice, of this driver being observed to swerve on the highway suggesting some problem with functional coordination during his driving.
Wilson's disease is a progressive neurological disease, and this is of grave concern, given the responsibilitie
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