Wisconsin Truck Driver was ‘Disabled’ Despite No Diagnosis During Employment

July 25, 2017

The Wisconsin Fair Employment Act (WFEA) prohibits employers from discriminating against employees and job applicants on the basis of disability. The Wisconsin Labor and Industry Review Commission (LIRC) recently determined that a worker could be deemed an individual with a disability even though he never received a medical diagnosis for his disability.


Scott Gilbertson began working as a cement truck driver for Wingra Redi-Mix in June 2011. His job involved inspecting, loading, and driving cement trucks as well as pouring concrete at jobsites. After he was hired, he was assigned to drive Truck 56, which was known as a “glider” truck. It did not have shock absorbers, used mechanical brakes, and required more physical effort to operate than “nonglider” trucks.

After two years of employment, Gilbertson began experiencing bouts of pain in his lower right back, leg, and ankle. The pain and intermittent numbness made it difficult for him to hold down the brake while driving and climb down the chutes of the cement truck. As a result, he felt unsafe operating Truck 56.

When his symptoms began, Gilbertson informed his dispatch manager that he was experiencing “issues with his physical condition” and was having a hard time driving Truck 56. He informed his dispatch manager that he wanted to file a worker’s compensation claim, and the safety and HR manager subsequently called him. Gilbertson told the HR manager that his legs and back were hurting from driving the truck, he was in a lot of pain, and he believed his condition was becoming progressively worse.

During the next several months, Gilbertson asked his dispatch manager whether he could be reassigned to a nonglider truck. He asked to be transferred to Truck 51, a nonglider truck that was not in use. Later, Gilbertson told the HR manager that the dispatch manager was working on getting him into a nonglider truck. The HR manager responded that he would be surprised if Gilbertson was allowed to drive a nonglider truck because the sales manager “had it out” for him. Later, the HR manager informed him that he would not be allowed to drive the nonglider truck and that he did not agree with the decision.

Meanwhile, in an attempt to alleviate some of Gilbertson’s pain, the employer removed one of the two springs from the throttle on Truck 56. Gilbertson informed the HR manager that he was concerned from a safety standpoint because if the remaining spring broke, he would have no way to push the accelerator.

After Gilbertson again mentioned his leg and back pain to the HR manager, the shop supervisor informed him that he would not get a new truck. Gilbertson then sent the dispatch manager an e-mail documenting his previous conversations with her and asking her to reconsider assigning him to a nonglider truck. The response effectively said he would remain assigned to Truck 56.

Gilbertson made further attempts to be assigned to a nonglider truck, including through his union representative. The employer informed him that he needed to drive Truck 56 because of its financial investment in the truck. (Cement trucks must be registered with the Wisconsin Department of Transportation. At the time, the cost of registration was approximately $2,000. Additionally, the employer was required to insure its cement trucks at a cost of approximately $5,000 per truck per year.)

Several weeks later, Gilbertson again experienced pain while operating Truck 56. He went back to work, left his keys, fuel card, and time card on the HR manager’s desk, and said he was quitting. He informed the HR manager that he could not operate the truck and that he was not being accommodated. The HR manager told Gilbertson that he did not want him to quit and returned his keys. The manager went on to say that he agreed that Gilbertson should be assigned to a different truck but it was not his decision. He informed Gilbertson that he would talk to the owner about getting him a new truck. Because he was in pain, Gilbertson left the jobsite. He notified one of the dispatchers that he was having physical problems and was going home.

The following day, Gilbertson did not report to work. He called the HR manager to see if he had talked to the owner about a nonglider truck. Gilbertson informed the manager that if he could not be moved to a new truck, he would file a worker’s comp claim to get medical documentation of the issues involving the truck. Gilbertson then sent the manager an e-mail reiterating their previous conversations. In the e-mail, Gilbertson stated that he was willing to return to work if he could drive a nonglider truck that was not being used.

The HR manager e-mailed the company’s owner regarding Gilbertson’s request, stating his decision would be to not call Gilbertson back, inform him that he was absolutely not getting a new truck, and inform him that his resignation was being accepted. The owner approved the manager’s recommendation and advised him to accept Gilbertson’s resignation.
The manager then contacted Gilbertson and told him that he would not be assigned to a nonglider truck and that he had to drive Truck 56. He also informed Gilbertson that the company was accepting his resignation and would provide him written confirmation.

Nine months after his employment ended, Gilbertson sought medical treatment from a board-certified chiropractic orthopedist. He received treatment three times per week for approximately five months. He was diagnosed with subacute to chronic multilevel degenerative disk disease with right sciatic radiculopathy and right foot drop, with a secondary diagnosis of right sacroiliac joint dysfunction. He was assigned a seven percent permanent partial disability rating with permanent restrictions. Based on the history of the condition provided by Gilbertson and a physical examination, the orthopedist opined that Gilbertson had a disability while he was employed by Wingra Redi-Mix.

Discrimination Complaint

Gilbertson filed a disability discrimination complaint against the employer for violations of the WFEA. He alleged that the employer failed to accommodate his disability and terminated him because of his disability.

A Wisconsin Equal Rights Division investigator determined there was not probable cause to believe that discrimination had occurred. Gilbertson appealed the decision, which led to a hearing before an administrative law judge (ALJ). The ALJ found that Gilbertson did not have a disability, focusing on the fact that he was not diagnosed with a disability until after he stopped working for his employer. The finding of no probable cause was affirmed.

Gilbertson appealed the ALJ’s decision to the LIRC. In reversing the ALJ’s decision, the LIRC noted that although Gilbertson’s healthcare provider did not begin treating him until the summer of 2014, the orthopedist believed he was disabled as of his last day of work in October 2013. The orthopedist stated that according to Gilbertson’s description of his job duties and symptoms, the condition had improved since he stopped working for the employer. In fact, Gilbertson had the same symptoms in 2013, only they were more pronounced than the symptoms the orthopedist found to be disabling in 2014. The LIRC found that based on those facts, the record supported a conclusion that Gilbertson had an impairment that interfered with him functioning and amounted to a disability while he worked for the company.

In criticizing the ALJ’s decision, the LIRC noted that an employee is not required to have a diagnosed disability at the time of employment in order to be considered an individual with a disability. Citing previous decisions, the LIRC stated that when supervisors are aware of obvious physical manifestations of a disability that is subsequently established at a hearing, they need not know the employee’s actual diagnosis or reach a subjective conclusion that the employee was disabled at the time of the allegedly discriminatory act. The LIRC acknowledged that the lack of a contemporaneous disability diagnosis may call into question the employer’s intent, but stated that it has no bearing on the underlying question of whether the employee met his burden of establishing that he was an individual with a disability. Gilbertson v. Wingra Redi-Mix, ERD Case No. CR201400424 (LIRC, Jan. 20, 2017).

Bottom Line

In its decision, the LIRC pointed out that the employer was aware that Truck 56 caused Gilbertson a lot of leg and back pain, the pain was getting worse, and his legs sometimes went completely numb. The employer was also aware that he had asked to be accommodated by being transferred to a different truck.

The important takeaway from this case is that the employee was not required to specifically notify the employer that he had a disability. The information he provided should have, at a minimum, triggered the question of whether he was asking for an accommodation. At that point, the employer had the right to ask him to present medical documentation establishing a disability and supporting the need for an accommodation. The employer simply ignoring the request was not justified.

Employers that fail to consider an accommodation request when faced with similar facts do so at their own peril. Under such circumstances, it is prudent to seek the employee’s treating healthcare provider’s opinion in determining whether he is in fact disabled within the meaning of the WFEA and what, if any, accommodations are necessary. Failing to do so will likely result in a finding of failure to accommodate.

This article, slightly modified to note recent updates, was featured in the July 2017 issue of the Wisconsin Employment Law Letter, which is co-edited by Axley Brynelson Attorneys Saul Glazer and Michael Modl and published by BLR®—Business & Legal Resources. Reproduced here with the permission of BLR®—Business & Legal Resources.