¶ 1. Midwest Coast Transport ("Midwest"), a commercial trucking company, seeks review of a published opinion of the court of appeals1 reversing a decision of the Labor and Industry Review Commission ("LIRC") that determined Midwest did not discriminate for reasons of disability against Leon E Szleszinski ("Szleszinski"), an interstate com*265mercial truck driver. Midwest prohibited Szleszinski, who suffered from Wilson's disease, from driving trucks leased to Midwest by Transhield Trucking and Tran-shield Leasing Company ("Transhield") after receiving a doctor's recommendation that Szleszinski be disqualified from driving commercial trucks interstate due to his diagnosis of Wilson's disease.
¶ 2. Szleszinski filed a disability discrimination claim under the Wisconsin Fair Employment Act ("WFEA") against Midwest and Transhield. Mr. Szlesz-inski died while his claim was pending, and his estate was substituted as complainant.2 The hearing examiner3 ruled in Szleszinski's favor. LIRC reversed the hearing examiner's decision, concluding that the medical evaluation of the physician who recommended disqualifying Szleszinski was sufficiently "individualized" under Wis. Stat. § 111.34(2)(b) and (c) (2005-06)4 of the WFEA, and that Szleszinski could have challenged the evaluation under a dispute resolution procedure contained in United States Department of Transportation ("DOT") regulations.
¶ 3. After the Washburn County Circuit Court, Honorable Eugene D. Harrington, affirmed LIRC's decision, the court of appeals reversed, concluding that Szleszinski was not required to seek a determination of medical qualification from the DOT under the dispute *266resolution procedure before initiating his WFEA disability discrimination claim because (1) "the WFEA does not require individuals to exhaust other administrative remedies," and (2) the DOT procedure was inapplicable in this case because it applies only in disputes between the driver's physician and the carrier's physician, and both physicians in this case were hired by Midwest. Estate of Szleszinski v. LIRC, 2005 WI App 229, ¶¶ 17-21, 287 Wis. 2d 775, 706 N.W.2d 345. The court of appeals also concluded that the medical evaluation upon which Midwest relied was "insufficient... as a matter of law" because it was not "individualized" under the WFEA. Id., ¶ 34.
¶ 4. Midwest sought review of the court of appeals' conclusion that Szleszinski was not required to seek a determination regarding medical qualification from the DOT under the dispute resolution procedure before filing his WFEA claim, and we granted review to address this issue.5
*267¶ 5. We conclude that a driver need not seek a determination of medical qualification from the DOT prior to filing a disability discrimination claim under the WFEA. We also conclude that when a person's medical and physical qualifications to be an interstate commercial driver are material to a WFEA claim, and a dispute arises concerning those qualifications that cannot be resolved by facial application of the DOT regulations, such a dispute should be resolved by the DOT under its dispute resolution procedure. We further conclude that, under the WFEA's burden-shifting scheme, the carrier, not the driver, is the party that must seek a determination of medical and physical qualification from the DOT if the carrier intends to offer a defense that the driver was not qualified for medical reasons.
¶ 6. With regard to the issue before us on review, we therefore reverse the decision of LIRC and reinstate the hearing examiner's decision. We remand to LIRC to reinstate the decision and order of the hearing examiner and to grant the award ordered by the hearing examiner in this case.6
I
¶ 7. LIRC's February 26, 2004 decision contained the following findings of fact, which are undisputed. In *2681981, at the age of 22, Szleszinski was diagnosed with Wilson's disease, a disorder of the metabolism in which a person is unable to process copper normally. The disease is marked by an increased output of copper in the urine, deposits of copper in the tissues, cirrhosis of the liver, pigmentation of the corneas, and degenerative changes in the central nervous system.
¶ 8. Szleszinski was employed as a truck driver for 15 years prior to his death in March 1999. Szlesz-inski had held a commercial drivers license since the early 1990s. In June 1995, Szleszinski was hired as an over-the-road truck driver by Transhield, which leases its trucks and drivers exclusively to Midwest. Midwest transports semi-trailer loads of freight in interstate commerce. Midwest required its drivers to be medically certified pursuant to federal motor carrier safety regulations. At the time of his hiring, Szleszinski disclosed that he had Wilson's disease and provided documentation demonstrating he had passed a medical examination and was certified to drive under the applicable DOT regulations.
¶ 9. In March 1996, Midwest received reports from two different sources that Szleszinski was driving erratically. Both reports alleged that Szleszinski's truck was observed weaving in traffic, and one alleged it forced another onto the shoulder of the highway. Szleszinski disputed that these incidents occurred. Midwest suspended Szleszinski from driving and sought a medical evaluation to determine whether Szleszinski was physically fit to drive.
¶ 10. Upon the recommendation of Occupational Health Associates of South Dakota ("OHA"), the company on which Midwest relied for medical evaluation of its drivers, Szleszinski was examined by Dr. Ali Choucair, a neuro-oncologist at the Marshfield Clinic. In a report *269dated March 19, 1996, Dr. Choucair found an "established diagnosis of Wilson's disease with very mild demonstrated deficit on the neurological examination." He recommended an MRI scan, "detailed psychometrics," and a DOT road test. He concluded, however, that "[Szleszinski's] deficit I do not believe is such that will prevent him from operating a motor vehicle."
¶ 11. Midwest then forwarded Dr. Choucair's evaluation and Szleszinski's medical records to OHA. Dr. Dana Windhorst, the director of OHA's Department of Occupational Medicine, reviewed the records but did.not personally examine Szleszinski. On March 21, 1996, Dr. Windhorst issued a report which states, in relevant part:
I have reviewed Mr. Szleszinski's records, specifically the note from Ali Choieair [sic], M.D., Neurologist.... As I understand it, Mr. Szleszinski has a 19-year history of Wilson's disease, with diagnosis confirmed at the Mayo Clinic. The laboratory tests on Dr. Choieair's [sic] note was certainly consistent with Wilson's disease. As far as I can see, there is no question that this is the confirmed diagnosis, at least based on the information available to me.
The neurological examination did indicate some mild neurological deficits, specifically in the areas of coordination, and possibly some extrapyramidal problems as well.
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 responsibilities of driving large commercial vehicles on the highways. The *270Department of Transportation Conference on Neurological Disorders and Commercial Drivers, dated July 1988, recommends, without exception, disqualification for individuals with confirmed diagnosis of Wilson's disease. Putting all this together, I cannot make a recommendation for this individual to be medically certified for DOT licensure. It is also my opinion that, regardless of the results of psychometric testing and MRI, that I would not change this recommendation.
The report of the Department of Transportation Conference on Neurological Disorders ("Conference Report") referenced in Dr. Windhorst's report recommended changes to 49 C.F.R. § 391.41(b)(7), (8) and (9), the administrative rules concerning regulation of drivers with neurological disorders. The conference report's specific recommendation concerning Wilson's disease was not adopted by DOT rule makers.7
¶ 12. Based on Dr. Windhorst's recommendation, on March 26, 1996, Midwest informed Szleszinski that he would not be allowed to drive equipment leased to Midwest. Because Transhield leased equipment exclusively to Midwest, this decision, in effect, ended Szleszinski's employment with Transhield.
¶ 13. On April 5, 1996, Dr. Stanley Skinner, a neurologist at the Minnesota Clinic of Neurology, examined Szleszinski regarding his employment with another trucking company.8 Dr. Skinner determined that *271the diagnosis of Wilson's disease should not affect Szleszinski's employment as a truck driver. Dr. Gary A. Johnson reviewed an MRI of Szleszinski's head at his request and found that it was normal.
¶ 14. Despite the adverse evaluation of Dr. Wind-horst, Szleszinski's DOT certification was never suspended or revoked, and Szleszinski continued to work as a commercial truck driver.
¶ 15. On October 3, 1996, Szleszinski filed a disability discrimination complaint with the Wisconsin Department of Industry, Labor and Human Relations (n/k/a Department of Workforce Development ("DWD")) alleging Midwest and Transhield unlawfully terminated his employment because of his disability, Wilson's disease. In an initial determination dated September 15, 1997, and amended on February 18, 1999, an equal rights officer stated there was probable cause to believe Midwest and Transhield had discriminated against Szleszinski.
¶ 16. On March 11, 1999, Szleszinski died. On April 2, 2002, the personal representative of the Estate of Szleszinski was substituted as the complainant in the matter.
*272¶ 17. After a hearing, examiner Gary Olstad issued a decision dated August 7, 2003, determining that: (1) Midwest was Szleszinski's de facto employer within the meaning of the WFEA; (2) Transhield was not Szleszinski's employer within the meaning of the WFEA; (3) Midwest discriminated against Szleszinski by terminating his employment because he had Wilson's disease; and (4) Transhield did not terminate Szleszinski's employment. Examiner Olstad dismissed the complaint against Transhield9 and ordered Midwest to pay Szleszinski back pay and benefits, plus reasonable attorney fees and costs.
¶ 18. Midwest petitioned LIRC for review of Examiner Olstad's decision. On February 24, 2004, LIRC issued a decision reversing the examiner's decision. LIRC concluded that both Midwest and Transhield were employers within the meaning of the WFEA, and that Szleszinski had proven he was disabled within the meaning of the WFEA. However, it further concluded Szleszinski failed to prove that Midwest had discriminated against him because of his disability. LIRC also concluded that Dr. Windhorst's opinion was sufficiently "individualized" to satisfy the requirements of Wis. Stat. § 111.34(2)(b) and (c), and Midwest could reasonably rely on Dr. Windhorst's report to prove Szleszinski's disability was reasonably related to his ability to adequately undertake the job-related responsibilities of his employment. LIRC noted that Szleszinski could have challenged Dr. Windhorst's medical evaluation by using a DOT dispute resolution procedure. LIRC stated: "It is important to note that [Szleszinski] was *273not required to helplessly accept Dr. Windhorst's refusal to medically certify him. Federal regulations provide an appeal mechanism [the DOT dispute resolution procedure] through which disputed DOT medical certifications can be reviewed."
¶ 19. Szleszinski commenced an action in the circuit court seeking review of LIRC's decision. In a memorandum decision dated October 19, 2004, the circuit court affirmed LIRC's decision.
¶ 20. Szleszinski appealed the circuit court's decision. The court of appeals issued an opinion reversing LIRC on multiple grounds. First, the court of appeals concluded that Szleszinski was not required to seek a determination regarding medical qualification from the DOT under its dispute resolution procedure before initiating a WFEA disability discrimination claim because "the WFEA does not require individuals to exhaust other administrative remedies." Szleszinski, 287 Wis. 2d 775, ¶¶ 17-18. Second, the court concluded that the DOT procedure did not apply in this case because the regulation concerns only disagreements between the "physician for the driver" and the "physician for the motor carrier," and the disagreement in this case was between Dr. Choucair and Dr. Windhorst, who were both physicians for Midwest. Id., ¶¶ 19-21. Third, the court of appeals affirmed LIRC's determination that Midwest was an employer within the meaning of the WFEA. Id., ¶¶ 22-30. Fourth, the court concluded that the DOT regulations require an in-person examination of the driver and not just a paper review of the driver's medical history, rendering Dr. Windhorst's report "insufficient ... as a matter of law." Id., ¶¶ 32-34. And, fifth, the court concluded that because Dr. Windhorst's report disqualified Szleszinski based solely upon a 1983 DOT study committee recommendation of automatic *274disqualification for a diagnosis of Wilson's disease, the doctor's report was insufficient under the WFEA, which requires a case-by-case assessment of each individual. Id., ¶¶ 35-36.
¶ 21. On October 27,2005, Midwest filed a petition for review with this court. Midwest's petition raised only one issue for review, whether a commercial driver who is disqualified by the carrier for a medical condition must seek a determination from the DOT under its regulations concerning his or her medical qualifications before bringing a disability discrimination claim under the WFEA. This court granted Midwest's petition to address this issue. This court also directed LIRC (which had not sought review of the court of appeals' decision) to file a brief addressing the issue raised by Midwest's petition.
II
¶ 22. When reviewing the decision of an administrative agency, this court reviews the agency's decision and not the decision of the court of appeals or the circuit court. Racine Harley-Davidson, Inc. v. Div. of Hearings and Appeals, 2006 WI 86, ¶ 8 n.4, 292 Wis. 2d 549, 717 N.W.2d 184. Our review is limited to (1) whether the agency kept within its jurisdiction; (2) whether it acted according to law; (3) whether it acted arbitrarily, oppressively, or unreasonably; and (4) whether the evidence was sufficient that the agency might reasonably make the order or determination in question. Solie v. Employee Trust Funds Bd., 2005 WI 42, ¶ 23, 279 Wis. 2d 615, 695 N.W.2d 463 (citation omitted).
¶ 23. The issue presented in this review, whether a commercial driver who is disqualified by a carrier for a medical condition must seek a determination regard*275ing medical qualifications from the DOT under the DOT's dispute resolution before bringing a disability discrimination claim under the WFEA, involves statutory interpretation, a question of law this court ordinarily reviews de novo. See DaimlerChrysler v. LIRC, 2007 WI 15, ¶ 10, 299 Wis. 2d 1, 727 N.W.2d 311. However, this case involves review of an agency decision, and we often accord deference to an agency's legal conclusions. Solie, 279 Wis. 2d 615, ¶ 25. We apply one of three levels of deference to an agency's interpretation and application of law: great weight deference, due weight deference, or no deference, depending upon the "comparative institutional qualifications and capabilities of the court and the administrative agency." Racine Harley-Davidson, 292 Wis. 2d 549, ¶ 13.
¶ 24. Many of our prior cases reviewing LIRC's interpretation and application of the WFEA have applied great weight deference. See, e.g., Hutchinson Tech., Inc. v. LIRC, 2004 WI 90, ¶ 22, 273 Wis. 2d 394, 682 N.W.2d 343; Crystal Lake Cheese Factory v. LIRC, 2003 WI 106, ¶ 28, 264 Wis. 2d 200, 664 N.W.2d 651. However, we conclude that the agency's decision in this case is not entitled to any deference. As LIRC notes, the agency's view as to whether the WFEA should be interpreted to require a determination under federal law before an individual may pursue a claim under the WFEA concerns the scope of LIRC's own power and is therefore not binding on this court. See Wis. Envtl. Decade v. Pub. Serv. Comm'n, 81 Wis. 2d 344, 351, 260 N.W.2d 712 (1978) (citation omitted). Furthermore, to the extent that this case involves interpretation of federal commercial carrier regulations, we owe no deference to LIRC's decision because LIRC has no special *276expertise interpreting and administering these regulations. See DaimlerChrysler, 299 Wis. 2d 1, ¶ 18.
III
¶ 25. In a disability discrimination claim under the WFEA, the complainant must initially prove the following: (1) he or she has a disability within the meaning of the act; and (2) the employer's adverse employment action was on the basis of the complainant's disability.10 See Stoughton Trailers v. LIRC, 2007 WI 105, ¶ 23, 303 Wis. 2d 514, 735 N.W.2d 477 (citation omitted). See also Wis. Stat. § 111.34(1). If the complainant meets its burden of proof as to both of these elements, the burden shifts to the employer to prove a defense under Wis. Stat. § 111.34. Under that section, the employer must show that its adverse action, while made on the basis of the complainant's disability, was not discriminatory under the WFEA. Target Stores v. LIRC, 217 Wis. 2d 1, 9, 576 N.W.2d 545 (Ct. App. 1998).
¶ 26. An employer may avoid a finding of discrimination by demonstrating that the person's disability renders him or her unqualified to adequately under*277take the responsibilities of the employment. Wis. Stat. § lll.34(2)(a).11 "In evaluating whether an individual with a disability can adequately undertake the job-related responsibilities of a particular job, membership or licensed activity, the present and future safety of the individual, of the individual's coworkers and, if applicable, of the general public may be considered." § 111.34(2) (b). Such an evaluation must be made "on an individual case-by-case basis and may not be made by a general rule which prohibits the employment or licen-sure of individuals with disabilities in general or a particular class of individuals with disabilities." Id.
¶ 27. In this case, Midwest has not disputed that Wilson's disease is a disability within the meaning of the act, or that its decision to prohibit Szleszinski from driving equipment leased to Midwest was on the basis of Szleszinski's diagnosis of Wilson's disease. The only matter in dispute is whether Szleszinski was physically qualified to operate a commercial motor vehicle.
¶ 28. Federal DOT regulations address the minimum medical or physical qualifications for interstate commercial drivers, and where applicable, these regulations supersede any lesser state regulations. See Frito-Lay, Inc. v. LIRC, 95 Wis. 2d 395, 401, 290 N.W.2d 551 (Ct. App. 1980), aff'd by an equally divided court, 101 *278Wis. 2d 169, 303 N.W.2d 668 (1981). Under the DOT regulations, a commercial truck driver engaged in interstate commerce must pass a medical examination demonstrating that he or she is physically qualified to be a commercial driver. See 49 C.F.R. § 391.41(a). Before concluding that a person is physically qualified to be an interstate commercial driver, the medical examiner must determine "that the driver does not have any physical, mental, or organic condition that might affect the driver's ability to operate a commercial motor vehicle safely." 49 C.F.R. § 391.43(f).12 If the medical examiner concludes a driver is physically qualified, he or she must provide the driver and his or her employer with a copy of a certificate that so indicates. 49 C.F.R. § 391.43(g).
¶ 29. A driver must be re-examined at least every 24 months, and whenever the driver's "ability to perform his/her normal duties has been impaired by a physical or mental injury or disease." 49 C.F.R. § 391.45(b)(1) and (c). A driver carrying an otherwise valid medical examination certification may not drive if he or she becomes physically unqualified to do so. See 49 C.F.R. § 391.41(a). A carrier that allows a driver to operate a commercial motor vehicle after the driver becomes physically unqualified is in violation of federal law.13 See 1 William E. Kenworthy, Transportation Safety and Insurance Law § 14.01 at 14-17 (3d ed. 2005).
*279¶ 30. The DOT regulations enumerate several medical conditions for which a diagnosis results in automatic disqualification of a driver. For example, a driver with insulin-dependent diabetes, epilepsy (with some exceptions), or myocardial infarction may not be medically certified to operate a commercial motor vehicle. 49 C.F.R. § 391.41. Wilson's disease is not among the listed conditions for which diagnosis would preclude medical certification. The regulations provide detailed guidelines for the physician examiner conducting a medical evaluation of a driver. See 49 C.F.R. § 391.43.
¶ 31. The DOT regulations also contain an administrative procedure to resolve conflicts between two medical evaluations. 49 C.F.R. § 391.47. Either the carrier or driver may initiate the procedure by application to the DOT's Director of the Office of Bus and Truck Standards and Operations. 49 C.F.R. § 391.47(c), (d)(3). The regulation provides that " [applications for determination of a driver's medical qualifications" must conform to certain requirements to be considered by the agency, including "proof that there is a disagreement between the physician for the driver and the physician for the motor carrier concerning the driver's qualifications." 49 C.F.R. § 391.47(b)(2).
¶ 32. Midwest contends that Szleszinski was required to seek a determination regarding his medical qualifications from the DOT under its dispute resolution procedure before filing his disability discrimination claim under the WFEA. Midwest asserts that because Szleszinski failed to seek such a determination from the DOT, his claim was properly dismissed by LIRC. Midwest and counsel for LIRC both complain that the court of *280appeals' decision in this case will result in state hearing examiners, rather than federal regulators with expertise in interpreting the DOT regulations, deciding future disputes concerning medical qualifications of interstate commercial drivers.
¶ 33. We agree with Midwest and counsel for LIRC that DOT regulators should resolve disputes concerning medical qualifications of drivers that cannot be resolved by facial application of the DOT regulations. The DOT rules contain a procedure for the resolution of such disputes. See 49 C.F.R. § 391.47. As the federal agency charged with licensing and regulating interstate commercial drivers, the DOT has special expertise in resolving such disputes. By contrast, a state examiner hearing a WFEA complaint has no special expertise to resolve a technical dispute between two medical examiners concerning a driver's qualifications under the DOT regulations.
¶ 34. We therefore conclude that if, in the context of a WFEA proceeding, a determination regarding a driver's medical qualifications is necessary to resolve a dispute concerning such qualifications that cannot be resolved by facial application of the DOT regulations, the determination should be made by the DOT under its dispute resolution procedure. However, the fact that DOT regulators should resolve such disputes when they arise in the context of a WFEA claim does not mean that a determination of medical qualification must be made before a WFEA claim is filed, or that it is the driver's responsibility to seek such a determination.
¶ 35. The dispute in this case concerning Szleszinski's medical qualifications arises in the context of his disability discrimination claim under the WFEA. *281Here, the DOT dispute resolution procedure is relevant to an issue that is material to a discrimination claim under the WFEA, i.e., whether Szleszinski was qualified to be an interstate commercial driver.
¶ 36. Under the WFEA, the employer carries the burden of proof on the issue of whether the complainant is qualified to adequately undertake the job-related responsibilities of the employment. Wis. Stat. § 111.34(2)(b). A showing by an employer that an individual is not qualified by reason of disability to execute the responsibilities of a particular job is a defense under the WFEA to the complainant's prima facie case of discrimination. Id. In this respect, the WFEA differs from the Americans with Disabilities Act (ADA), which requires that the employee, not the employer, shoulder the burden of proof on the question of whether the employee is qualified to perform the essential functions of a job. See, e.g., Weiler v. Household Finance Corp., 101 F.3d 519, 524 (7th Cir. 1996).
¶ 37. Accordingly, we conclude that when a dispute exists between the physician for the driver and the physician for the carrier regarding the driver's physical and medical qualifications, it is the carrier, not the driver, who bears the burden of seeking a determination under the DOT dispute resolution procedure if the carrier intends to' offer a qualification-based defense against the driver's claim of disability discrimination under the WFEA.14 A requirement that the driver seek *282a DOT determination before filing a state discrimination claim would be contrary to the burden-shifting scheme of the WFEA. Moreover, such a requirement would prevent some drivers from filing legitimate WFEA claims before the statute of limitations has run.15
¶ 38. We find the analysis of the United States Court of Appeals for the Seventh Circuit in Bay v. Cassens Transport Company, 212 F.3d 969, 974-76 (7th Cir. 2000), to be instructive. In Bay, a former commercial truck driver brought a discrimination claim under the ADA after Cassens' physician decertified him for a diagnosis of profound sinus bradycardia with near loss of consciousness, a heart condition requiring decertifi-cation under the DOT regulations. Id. at 971-72. Bay did not seek recertification under the DOT dispute resolution procedure. Id. at 974. The Bay court con-*283eluded that Bay's failure to seek recertification was fatal to his ADA claim based on the fact that, under the ADA, Bay carried the burden of showing that he was qualified to be a commercial driver. Id. at 973-74.
¶ 39. Thus, under Bay, the party that bears the burden of proof on the issue of whether the driver is qualified is the party that carries the burden of seeking a determination from the DOT regarding medical qualification. See id. at 973-74. In a case under the WFEA, that party is the employer. Accordingly, a carrier wishing to raise a defense based on the driver's medical qualifications must seek a determination from the DOT under the dispute resolution procedure when a legitimate dispute regarding the driver's qualifications exists between the driver's physician and the carrier’s physician.
¶ 40. We note that in some cases it may be unnecessary to obtain a determination regarding the driver's medical qualifications from the DOT if the issue is easily resolved by facial application of the DOT regulations. For example, where the driver receives an undisputed diagnosis of a condition for which blanket disqualification of the driver is required under the regulations,16 the hear*284ing examiner may simply conclude that the driver is unqualified by facial application of the regulations.17
¶ 41. But where a dispute over a driver's medical qualifications cannot be resolved by facial application of the DOT regulations, the hearing examiner must either give the carrier the opportunity to seek a determination from the DOT regarding the driver's medical qualifications or seek sua sponte a determination from the DOT regarding the driver's medical qualifications. The hearing examiner should stay the WFEA proceedings pending the resolution by the DOT of the medical qualification dispute.
¶ 42. Because LIRC did not seek a determination from the DOT under its dispute resolution procedure, a remand directive from this court to LIRC to provide the carrier the opportunity to seek a determination from DOT would normally be in order. Under the unique facts of this case, however, a remand order is unnecessary because the DOT dispute resolution procedure is inapplicable. Under 49 C.F.R. § 391.47, a dispute must exist between a physician for the employer and a physician for the employee. In this case, the court of appeals concluded that Dr. Windhorst's medical evaluation was invalid under the DOT regulations, and Midwest did not seek review of this conclusion. Because the remaining two medical evaluations of Dr. Choucair and Dr. Skinner both concluded that Szleszinski was *285qualified to drive, no dispute exists on review.18 We have addressed the proper procedure for LIRC to apply in WFEA discrimination cases involving medical qualifications of interstate truck drivers to provide guidance in future cases.
¶ 43. We are sensitive to the importance of commercial driver standards in protecting the safety of the general public on the nation's highways. Our decision protects the safety of the general public because the DOT regulations provide that once an application is submitted concerning a driver's medical qualifications, the driver shall be deemed disqualified until such time *286as a determination is made or an order is issued. 49 C.F.R. § 391.47(f). In other words, once the DOT dispute resolution application is submitted, the person cannot drive a commercial motor vehicle until it has been determined that he or she is physically qualified to do so. Compare 49 C.F.R. 391.41(a) with 49 C.F.R. § 391.47(f). Our decision ensures that whenever a legitimate dispute regarding the medical qualifications of a driver arises in the context of a WFEA claim, it will be resolved in the same manner as would any such dispute — by resort to the proper federal authorities, with the driver being disqualified until a determination is made.19
¶ 44. Finally, we address the discussion of the doctrine of exhaustion of administrative remedies contained in the court of appeals' opinion. Szleszinski, 287 Wis. 2d 775, ¶¶ 17-18, 21. We do so to ensure that the law of exhaustion of administrative remedies does not become confused. See Cook v. Cook, 208 Wis. 2d 166, 189, 560 N.W.2d 246 (1997) (stating that this court's primary function is that of law defining and law development).
¶ 45. One rationale for the court of appeals' conclusion that Szleszinski did not have to seek a determination of medical qualification from the DOT was because "the WFEA does not require individuals to exhaust other administrative remedies." Szleszinski, 287 Wis. 2d 775, ¶ 18. The court of appeals further *287suggested that exhaustion of administrative remedies is necessary only when the legislature expressly requires it. See id. ("The legislature has, when it deemed exhaustion appropriate, expressly required utilizations of administrative remedies prior to initiating circuit court action. See, e.g., Wis. Stat. §§ 49.498(19)(a), 50.03(ll)(a) and 801.02(7)(b).") We disagree.
¶ 46. Generally, the exhaustion of remedies doctrine arises in the context of whether a plaintiff exhausted its remedies in an administrative proceeding before filing a lawsuit. See, e.g., Wisconsin Collectors Ass'n, Inc. v. Thorp Finance Corp., 32 Wis. 2d 36, 47, 145 N.W.2d 33 (1966) ("[T]he exhaustion rule relates to judicial review of an uncompleted administrative proceedings . . . ."). Judicial interference is withheld until the administrative process has run its course. Id. (citation omitted). The context in which the court of appeals considered the exhaustion of remedies doctrine in this case, however, concerned whether a claimant involved in one administrative proceeding under the WFEA was required to exhaust his remedies in another administrative proceeding before bringing the WFEA claim.20
¶ 47. The court of appeals' suggestion that legislative authorization is necessary for the doctrine of exhaustion of administrative remedies to apply is simply incorrect. While it is true that exhaustion of remedies is mandated by statute in some cases, see, e.g., Wis. Stat. §§ 49.498(19)(a), 50.03(11)(a), and 801.02(7)(b), the rule of exhaustion of administrative remedies is a "doctrine of *288judicial restraint" which developed in the common law and has been codified by the legislature in some settings. See Nodell Inv. Corp. v. City of Glendale, 78 Wis. 2d 416, 424, 254 N.W.2d 310 (1977); see also State ex rel. Martin v. City of Juneau, 238 Wis. 564, 568, 300 N.W. 187 (1941) ("[W]here a specified method of review is prescribed by an act creating a new right or conferring a new power, the method so prescribed is exclusive and if [judicial] review is sought that method must be pursued.). This court has frequently considered the doctrine of exhaustion of remedies in cases in which no statute mandated exhaustion. See, e.g., State v. Wisconsin Employment Relations Comm'n, 65 Wis. 2d 624, 635-37, 223 N.W.2d 543 (1974); Jefferson County v. Timmel, 261 Wis. 39, 63, 51 N.W.2d 518 (1952); Ferch v. Schroedel, 241 Wis. 457, 461, 6 N.W.2d 176 (1942).
IV
¶ 48. In sum, we conclude that a driver need not seek a determination of medical qualification from the DOT prior to filing a disability discrimination claim under the WFEA. We also conclude that when a person's medical and physical qualifications to be an interstate commercial driver are material to a WFEA claim, and a dispute arises concerning those qualifications that cannot be resolved by facial application of the DOT regulations, such a dispute should be resolved by the DOT under its dispute resolution procedure. We further conclude that, under the WFEA's burden-shifting scheme, the carrier, not the driver, is the party that must seek a determination of medical and physical qualification from the DOT if the carrier intends to offer a defense that the driver was not qualified for medical reasons.
*289¶ 49. With regard to the issue before us on review, we therefore reverse the decision of LIRC and reinstate the hearing examiner's decision. We remand to LIRC to grant the award ordered by the hearing examiner in this case.
By the Court. — The decision of the court of appeals is modified and, as modified, affirmed.
Estate of Szleszinski v. LIRC, 2005 WI App 229, 287 Wis. 2d 775, 706 N.W.2d 345.
For consistency, this opinion will refer to both the late Leon E Szleszinski and the Estate of Leon E Szleszinski as "Szleszinski."
The WFEA refers to persons who hear and decide WFEA complaints as "examiners" and not as "administrative law judges." See Wis. Stat. § 111.39(4). This opinion, therefore, will use the term "examiner."
All subsequent references to the Wisconsin Statutes are to the 2005-06 version unless otherwise indicated.
The only issue on review before this court sought by Midwest is whether Szleszinski was required to seek a determination regarding his medical qualifications to be a commercial driver under 49 C.F.R. § 391.47 before filing his WFEA claim. Midwest did not seek review of the court of appeals' conclusions that Dr. Windhorst's evaluation was neither a valid medical examination under the applicable DOT regulations nor an individualized evaluation as required by Wis. Stat. § 111.34(2)(c) of the WFEA. See Szleszinski, 287 Wis. 2d 775, ¶¶ 33-36.
The dissent asserts that the majority opinion disregards LIRC's decision and memorandum opinion, including LIRC's factual findings. Dissent, ¶ 68-73. The facts relied upon in our opinion are taken entirely from LIRC's February 26, 2004, findings of fact. Yet, the issues the dissent wants to address were not included in Midwest's petition for review, and cannot now be raised or argued by Midwest as a matter of right. Wis. Stat. § (Rule) 809.62(6). See Ranes v. American Family Mut. *267Ins. Co., 219 Wis. 2d 49, 54 n.4, 580 N.W.2d 197 (1998); State v. Thierfelder, 174 Wis. 2d 213, 228, 495 N.W.2d 669 (1993). "If an issue is not raised in the petition for review or in a cross petition, 'the issue is not before us.'" Jankee v. Clark County, 2000 WI 64, ¶ 7, 235 Wis. 2d 700, 612 N.W.2d 297 (citation omitted). We decline to reach issues not raised hy the parties in this case.
We note that the hearing examiner's order required that the award be offset by Szleszinski's earnings from other employment. See Estate of Leon P. Szleszinski v. Transhield Trucking, ERD No. 199603914 (ERD, August 7, 2003).
The dissent repeatedly emphasizes this Conference Report relied upon by Dr. Windhorst, notwithstanding the fact that the Department of Transportation chose not to incorporate the Report's recommendation of unequivocal grounds for disqualification for persons with Wilson's disease in its rules. See dissent, ¶¶ 56-57, 62, 84-86.
Thus, Szelszinski received three medical evaluations, two from the carrier (Dr. Choucair and Dr. Windhorst) and one from *271his own physician, Dr. Skinner. The DOT dispute resolution procedure discussed at length later in this opinion, 49 C.F.R. 391.47, applies in disputes between a physician for the carrier and a physician for the driver. See infra, ¶ 31. Under the unique facts of this case, the dispute resolution procedure does not apply because (1) the court of appeals concluded that Dr. Windhorst's evaluation was not valid under the DOT regulations; (2) Midwest has not sought review of this conclusion; and (3) no dispute exists between the remaining valid evaluations of Dr. Choucair and Dr. Skinner regarding Szleszinski's medical qualifications. See infra, ¶ 42 and n.18. Nevertheless, we address the appropriate procedure for LIRC to follow in WFEA discrimination claims involving medical qualifications of drivers to provide guidance in future cases.
Transhield's dismissal as a party to this action has not been challenged by Szleszinski. Transhield is not a party to this review.
Wisconsin Stat. § 111.322(1) provides that it is an act of employment discrimination "to refuse to hire, employ, admit or license any individual, to bar or terminate from employment or labor organization membership any individual, or to discriminate against any individual in promotion, compensation or in terms, conditions or privileges of employment or labor organization membership because of any basis enumerated in s. 111.321." Wisconsin Stat. § 111.321 prohibits employment discrimination from an employer, labor organization, employment agency, licensing agency or other person on the basis of, among other reasons, disability.
Wisconsin Stat. § 111.34(2) (a) provides as follows:
Notwithstanding s. 111.322 [relating to prohibited discriminatory actions], it is not employment discrimination because of disability to refuse to hire, employ, admit or Mcense any individual, to bar or terminate from employment, membership or licensure any individual, or to discriminate against any individual in promotion, compensation or in terms, conditions or privileges of employment if the disabihty is reasonably related to the individual's abihty to adequately undertake the job-related responsibilities of that individual's employment, membership or Kcensure.
The federal regulations define a medical examiner as "a person who is licensed, certified and/or registered, in accordance with applicable State laws and regulations, to perform physical examinations." 49 C.F.R. § 390.5.
As Midwest points out, federal statutes impose stiff penalties on employers who knowingly permit physically unqualified drivers to operate a commercial motor vehicle, including criminal prosecution, civil penalties and revocation of the *279carrier's authorization to do business. See 49 U.S.C.A. § 13905(c); 49 U.S.C.A. § 521(b).
The dissent suggests that our determination of who has the burden of going forward in this action somehow punishes Midwest. Dissent, ¶¶ 50, 66. To the contrary, we do not construe requiring a party to follow our statutes as punishment.
We note that our conclusion differs in part from that of LIRC in Hermann v. Ort Trucking Co., ERD No. 9301203 (LIRC, July 1, 1994). There, a trucking company's physician disqualified Hermann, a diabetic, because of high blood sugar levels, but Hermann's physician certified him to drive after concluding Hermann's blood sugar levels were acceptable. Her-mann filed a claim for disability discrimination under the WFEA. LIRC dismissed Hermann's claim, holding that Her-mann was required to seek a determination from the DOT under the dispute resolution procedure before filing a claim of disability discrimination under the WFEA.
At oral argument in the present case, counsel for LIRC expressed the view that Hermann was wrongly decided to the extent that the Commission should not have dismissed Hermann's claim outright, but should have stayed the proceedings to permit the DOT to resolve the medical qualification dispute. We agree with LIRC's counsel that the Hermann Commission should have sought a stay of the state proceedings to permit resolution of the medical qualification dispute by the DOT.
We note that provisions in the DOT regulations requiring automatic disqualification for diagnosis of certain conditions are valid for purposes of claims under the WFEA, despite the fact that the WFEA requires assessment of an individual's qualifications on a "case-by-case basis" and "not... by a general rule which prohibits the employment or licensure of ... a particular class of individuals with disabilities." Wis. Stat. § 111.34(2)(b). The DOT's requirements prevail over lesser state provisions relating to the minimum qualifications of drivers. Frito-Lay, Inc. v. LIRC, 95 Wis. 2d 395, 401, 290 N.W.2d 551 (Ct. App. 1980), aff'd by an equally divided court, 101 Wis. 2d 169, 303 N.W.2d 668 (1981).
A hearing examiner may also be able to resolve a case without seeking a determination from the DOT where the driver can demonstrate that the employer's reliance on its doctor's medical determination was unreasonable or in bad faith. See Bay v. Cassens Transp. Co., 212 F.3d 969, 975 n.2 (7th Cir. 2000).
Our analysis in reaching the conclusion that the DOT dispute resolution procedure was inapplicable in this case differs from that of the court of appeals. Before determining that Dr. Windhorst's examination was invalid under the DOT regulations, the court of appeals also concluded, as a threshold matter, that the DOT dispute resolution procedure was inapplicable because 49 C.F.R. § 391.47 applies only to disagreements between the physician for the carrier and the physician for the driver, and, in the view of the court of appeals, the disagreement in this case was between two physicians for the carrier (Dr. Windhorst and Dr. Choucair) only. Szleszinski, 287 Wis. 2d 775, ¶¶ 19-21. However, the court of appeals failed to note that an evaluation was also made by a physician for Szleszinski, Dr. Skinner. While Dr. Skinner's evaluation occurred one week after Midwest's employment decision and was therefore not available to Midwest at the time of its decision, Dr. Skinner's evaluation was still relevant to the issue of whether Szleszinski was medically qualified. Thus, a disagreement (in fact, if not in law) existed between a physician for the carrier (Dr. Windhorst) and a physician for the driver (Dr. Skinner). However, based on the court of appeals' conclusion not on review before us that Dr. Windhorst's evaluation was not valid, we conclude that no disagreement existed in law between a physician for the carrier and a physician for the driver.
The dissent asserts that this employment discrimination dispute involves the safety to the public. Dissent, ¶ 50. We agree. Our decision removes from the road drivers involved in disputes regarding their medical qualifications until their disputes are resolved. Thus, we fail to discern how this decision will "push or prod motor carriers into hiring commercial drivers who are unsafe at any speed." See dissent, ¶ 98.
Considering exhaustion of administrative remedies in this context raises the following question: If exhaustion of administrative remedies is required, which set of administrative remedies must be exhausted first?