¶ 50. {dissenting). Most employment discrimination disputes do not involve the safety of the public. This one does. The effect of this case is to punish a trucking company that discontinued the services of an over-the-road commercial truck driver whom it believed posed an unreasonable risk on the highway. Although the court appears to decide the case on narrow procedural grounds, it fails to confront important issues that transcend this dispute and adversely affect the motor carrier industry and the public at large. Because these issues require discussion, I respectfully dissent.
BACKGROUND
¶ 51. Leon E Szleszinski (Szleszinski) was hired as a commercial truck driver by Transhield Leasing Company (Transhield) on or about June 21, 1995. Transhield leased trucks and drivers to Midwest Coast Transport (Midwest), a large trucking company headquartered in South Dakota. Midwest insisted on approving all drivers involved in its operations.
¶ 52. To obtain Midwest's approval to work, Szleszinski submitted to a physical examination in accordance with Federal Motor Carrier Safety Regulations. This examination was completed on June 20, 1995, by Dr. L.D. Carlson, in Bruce, Wisconsin. Szlesz-*290inski acknowledged to Dr. Carlson and his prospective employers that he had Wilson's disease, an uncommon, progressive neurological disorder. Consequently, Midwest asked that additional medical records be sent to South Dakota for review by the independent Central Plains Clinic in Sioux Falls, which is part of Occupational Health Associates of South Dakota. A physician's assistant at the clinic, Pat Farritor, signed off on Szleszinski's application.
¶ 53. In March 1996, nine months later, Midwest received two separate complaints from the public about Szleszinski's driving. On March 8 a complainant from Watertown, Wisconsin, alleged that Szleszinski was "weaving all over his lane," then came into the complainant's lane forcing him onto the shoulder of Interstate Highway 94. The complainant said Szleszin-ski also was tailgating and laying on his horn. On March 12 a second complainant, from Bloomer, Wisconsin, claimed that Szleszinski was weaving in his lane and speeding on a highway near Eau Claire.
¶ 54. Midwest promptly suspended Szleszinski until it could determine whether Szleszinski could safely operate his 16-wheel vehicle. Midwest's safety director, Lou Rogers, made arrangements for Szleszin-ski to be examined by Dr. Ali Choucair, a neuro-oncologist at the Marshfield Clinic. Midwest had not worked with Dr. Choucair before.
¶ 55. Dr. Choucair examined and interviewed Szleszinski on March 15, 1996. Dr. Choucair's written report, dated March 19, reads in part:
Mr. Szleszinski is a 36-year-old who is here for evaluation regarding his driving ability. He is referred by Dr. [Conrad] Eastwold, but actually his referral came from Mr. Lou Rogers, safety manager where Mr. *291Szleszinski has been employed. However, Mr. Szleszin-ski does not want me to send any correspondence to Mr. Lou Rogers. ... Mr. Szleszinski would like a copy of this evaluation to go to the two gentlem[e]n noted below. One of them, he tells me, is his supervisor and the other one is his attorney. He had been seeing Dr. Eastwold at Rice Lake for management of Wilson's disease.
The history as I have it was obtained in detail from the patient, who was also accompanied by his mother. I have very scanty medical records from Dr. Eastwold. The patient tells me that his diagnosis of Wilson's disease has been confirmed at the Mayo Clinic.
The reason all of this came about is, according to Mr. Lou Rogers, that the patient had been seen driving a 16 wheeler, swaying over the highway. The patient himself denies any difficulty whatsoever on the job.
He tells me he was diagnosed as having Wilson's disease at age 17. He at that time was having a physical for joining the military. He was then referred to Dr. Harold Noran, a neurologist in Minneapolis, who saw him in July of 1981, and that is when the diagnosis was established. However, the patient tells me that he had been to the Mayo Clinic two years ago by referral from Dr. Eastwold, and I have lab follow-ups subsequently. ... There are labs here for ceruloplasmin in June of 1990 which was 2 (normals being 20-45) and urine copper was high at 1024 (normals are 15-60). He also had his liver enzymes checked, with a total biliru-bin of 1.37, with a normal AST and a ceruloplasmin in June of 1992 of 4, again well below normal.
The patient also has been known to have anxiety and an adjustment disorder for which he was once admitted in 1986.
*292The patient was given the neurology questionnaire to fill out, which was reviewed with him in great detail.
EXAM: A 36-year-old man. ... He weighs 216 pounds and is 69 inches tall. Visual acuity 20/25 and 20/40.
His detailed neurological examination is outlined on the neurological examination sheet, which is part of the permanent medical record. He impresses me as being a very anxious gentleman. He is, however, very cooperative. He does have definite dysarthria and he has very mild masking of the face. He has very mild stooping of his gait. He does have diminished arm swing bilaterally. He has mild difficulty with tandem. He has Kayser-Fleischer rings on his funduscopic exam. He does have mild difficulty with finger-to-nose-to-nose. He also had very mild difficulty with heel-to-shin; again, this is really mild. He has symmetrical hyperreflexia, but the toes are bilaterally downgoing. He has no motor deficit on strength and a normal sensory exam in all detailed modalities. The neurological exam is outlined on the neurological examination sheet, which is part of the permanent medical record.
IMPRESSION: 1. Established diagnosis of Wilson's disease with very mild demonstrated deficit on the neurological examination.
PLAN & DISCUSSION: As I told Leon, as a physician, I take the complaints from his safety manager as very serious. I told him it is my responsibility to protect him as well as to protect others. I told him the report that he was seen swaying on the highway is of serious concern to me, especially when he is driving an almost 70 or 80 ton truck. I told him, by law, people who drive these vehicles need to demonstrate full ability of *293control. His deficit I do not believe is such that will prevent him from operating a motor vehicle. However, I am seeing him only on one instance. I have not had the opportunity to observe him. I told him, however, it is my strong conviction that he should undergo an MRI scan of the head and that he should have formal detailed psy-chometrics done. If he does well on these two, my next step would be to recommend that he have a road test by the DOT authorities. This was explained to him in detail.
Even though he gave me permission to speak to Mr. Lou Rogers, he would not give me.permission to release information to him.
Created 3/19/1996 (emphasis added).
¶ 56. When it received Dr. Choucair's report, Midwest sent it to Central Plains Clinic for review by the Medical Director, Dana J. Windhorst, a medical doctor with a master's degree in public health. Dr. Windhorst's report, dated March 21, 1996, reads as follows:
I have reviewed Mr. Szleszinski's records, specifically the note from Ali Chou[c]air, M.D., Neurologist with St. Joseph's Hospital in Marshfield, Wisconsin. I also discussed the case with Pat Farritor, PA.-C. 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. Chou[c]air's 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.
*294In 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 Department of Transportation Conference on Neurological Disorder[s] 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.
¶ 57. The Conference report that was alluded to in Dr. Windhorst's letter reads in part as follows:
The Office of Motor Carriers (OMC), Federal Highway Administration (FHWA), U.S. Department of Transportation (DOT), sponsored a conference on April 7 and 8, 1988 to review the current standards for commercial motor vehicle drivers with neurological disorders. Conference participants numbered twenty-eight and included physicians and scientists experienced in the care of people with neurological disorders, and representatives from the motor carrier industry. The current standard (FHWA regulations, 49 C.F.R. [§] 391.41(b)(7, 8, 9) as established in 1971 and revised in 1983), permits qualification of individuals to drive a commercial vehicle if that person has no established medical history or clinical diagnosis of... any condition which is likely to cause loss of consciousness or the loss of ability to control a commercial vehicle, or ... *295neuromuscular ... disease such that the condition interferes with his/her ability to safely control and operate a commercial vehicle.
The administrative rule applied to the commercial driver with neurological conditions was reviewed in light of the many advances in the diagnosis and care of neurological conditions that have accrued since 1971. Four major categories of neurological conditions were carefully reviewed by four task forces, discussed at a plenary session, and following integration of all information presented, further discussed in-depth hy members of the Steering Committee.1 The following summaries were prepared:
Executive Summary — Progressive Neurological Conditions
The task force felt that the current medical examination for commercial driving certification was inadequate in assessing neurological conditions. ... For progressive neurologic disorders we recommend two categories for disqualification. The first category includes chronic diseases that would unequivocally indicate disqualification:
• Dementia
• Motor neuron disease
• Malignant tumors of the central nervous system
• Huntington's disease
• Wilson's disease
*296TASK FORCE II REPORT: PROGRESSIVE NEUROLOGICAL CONDITIONS
EXTRAPYRAMIDAL DISORDERS WITH HYPERKI-NESIA.
A broad range of movement disorders are characterized by excessive motor activity. Patterns of motor activity include chorea, athetosis, dystonia, myoclonus and tremor. Individually these disorders are rare but collectively they are not infrequent. When mild, such involuntary movements may not significantly impair motor function but when severe, coordination may be significantly impaired. These involuntary movements are usually manifestations of diseases which in themselves may be disqualifying for commercial vehicle operation....
Disposition
Due to the broad range of manifestations, the marked variety in intensity of manifestations from one individual to another, and the large number of diseases of which these hyperkinesias may be symptomatic, it is not possible to make a simple rule regarding disposition. Each case must be evaluated on the ability of the individual to perform adequately in appropriate neurological tests to assess strength, dexterity and coordination. A clear diagnosis of Huntington's disease or Wilson's disease is unequivocal grounds for disqualification.
Conference on Neurological Disorders and Commercial Drivers, U.S. Dep't of Trans., Fed. Highway Admin. (July 1988) (emphasis added).
*297¶ 58. On March 26, 1996, Midwest formally terminated Szleszinski's qualification to drive equipment leased to Midwest.2 Szleszinski immediately cancelled a scheduled MRI and additional examination with a doctor at the Marshfield Clinic. Instead, Szleszinski's attorney arranged for him to see a different doctor, Stanley A. Skinner, of the Minneapolis Clinic of Neurology. In April 1996 Dr. Skinner issued a report, which reads in part:
Idid see your patient, Leon Szleszinski, today for follow-up of Wilson's disease, and particularly with respect to the patient's ability to drive a truck, etc. This 36-year-old, right-handed, white male was diagnosed with Wilson's disease when he was about 17 years of age. At that time the patient had increased dysarthria and hand tremors that were progressive. He was found to have Kayser-Fleischer corneal rings and later was noted to have a maternal cousin who had been diagnosed with Wilson's disease in Chicago. Apparently blood and urine copper, ceruloplasmin and other data were obtained, which were all consistent with the diagnosis. The patient was placed on penicillamine four times a day and his symptoms really relented. He was told by his treating physician at the time that he had a very mild case....
The patient has driven a truck for 12 years. When he passed his truck driving examination, he passed for all varieties of trucks under different conditions. Since that time he has had no truck driving accidents3 and no speeding tickets. He also works as a volunteer for the *298local fire department. The patient has no history of liver disease with respect to his Wilson's disease. ...
On examination this patient is awake, alert, attentive, with very mild dysarthria. He is pleasant, smiling, straightforward, and easy to develop a rapport with. He has no abnormalities of thought content of stream of thought. He is fluent. With his hands outstretched, the patient has almost no resting or postural tremor. Perhaps only very mild terminal dysmetria is seen with finger-nose-finger examination; this is questionable. He is good and strong in the four limbs. His ocular motility is normal. His visual fields are full. His facies are symmetrical. The tongue protrudes in the midline with a normal gag. The fundi are benign. The patient still has fairly striking Kayser-Fleischer corneal rings. The reflexes are 2/4 at the biceps, triceps, knees and ankles. The toes are downgoing. The station and gait are judged to be normal. The sensory examination to pinprick, light touch, position and vibration are normal in the four limbs.
IMPRESSION: Treated Wilson's disease.
At this point, for the purpose of this examination and the patient's work status, I do not see that this . diagnosis should have any influence whatsoever on the patient's occupation as a truck driver. As far as I am concerned, Wilson's disease is treated extremely well, the *299patient is almost asymptomatic and should function quite well in his occupation. About once a year, I think the patient should have liver tests, but even that may be overly compulsive. Penicillamine may have side effects that can cause multiple weakness, a myasthenic type syndrome, or neuropathy, but I do not see any evidence of that at this time.
(Emphasis added.)
¶ 59. In October 1996 Szleszinski filed a disability discrimination complaint under the Wisconsin Fair Employment Act (WFEA). He alleged that Midwest unlawfully terminated his employment because of his physical disability (Wilson's disease). On September 15, 1997, an equal rights officer found probable cause to proceed. In 1998, after discovery, Szleszinski amended his complaint.
¶ 60. Szleszinski died on March 11, 1999, in Emlenton, Pennsylvania. He was 39. An autopsy was performed. The coroner's certificate of death listed "cirrhosis of liver" as a consequence of "Wilson's disease" as the cause of death. Thereafter, Szleszinski's estate was substituted as the complainant in Szleszinski's equal fights action.
¶ 61. Transhield, which had been brought into the case in the amended complaint, and Midwest moved to dismiss. After the case was held under advisement for more than 30 months, the hearing examiner rejected the motion to dismiss and scheduled an eviden-tiary hearing for July 16, 2002, more than three years after Szleszinski's death.
¶ 62. At that hearing, the examiner heard testimony from four witnesses and received multiple exhibits of medical and other records, including the reports from Drs. Carlson, Choucair, Windhorst, and Skinner. No medical doctors testified at the hearing. On August *3007, 2003, almost 13 months after the hearing, the hearing examiner issued a decision and order supporting Szleszinski's claim. Among his findings of fact, the hearing examiner found:
5. Dr. Windhorst did not examine Szleszinski. Dr. Windhorst opined that Szleszinski be disqualified from DOT licensure. Dr. Windhorst based his opinion on Dr. Choucair's report as well as a Department of Transportation Conference on Neurological Disorderfs] and Commercial Drivers which recommended that anyone with a confirmed diagnosis of Wilson's disease [be] disqualified from driving commercially.
6. Based upon Dr. Windhorst's report [Midwest] disqualified Szleszinski as a driver on March 26, 1996. There being no other work available [Transhield] terminated Szleszinski's employment at the same time.
(Emphasis added.)
¶ 63. Among his conclusions of law, the examiner ruled that Midwest "discriminated against Szleszin-ski . . . when it terminated his employment because he was diagnosed with Wilson's disease." The hearing examiner's decision contained no discussion of his findings of fact or conclusions of law, but it noted that a transcript of the hearing was not prepared.
¶ 64. Midwest and Transhield petitioned the Labor and Industry Review Commission (LIRC) for review. On February 24, 2004, LIRC dismissed Szleszinski's complaint, concluding that he had failed to sustain his burden that he was terminated by respondents because of his disability. LIRC's decision was affirmed by the Washburn County Circuit Court, Eugene D. Harrington, Judge, but it was substantially *301reversed by the court of appeals. Estate of Szleszinski v. LIRC, 2005 WI App 229, 287 Wis. 2d 775, 706 N.W.2d 345.
DISCUSSION
¶ 65. The majority concludes that a person's medical and physical qualifications to be an interstate commercial truck driver are material to a claim under the WFEA. Majority op., ¶ 5. However, according to the majority, a driver need not seek a determination of medical qualification from the United States Department of Transportation (DOT) prior to filing a disability discrimination claim under the WFEA. In fact, under the WFEA's burden shifting scheme, the motor carrier, not the employee, must seek a determination from the DOT if the carrier intends to offer a defense that the driver was not qualified for medical reasons. Id.
¶ 66. LIRC came to a different conclusion on this issue, as it had in Hermann v. Ort Trucking Co., ERD No. 9301203 (LIRC, Dec. 13, 1994).4 In my view, LIRC's decision on this issue was correct. But even if it was not, this court should not punish Midwest for following the law as it existed from Hermann to the time of the Szleszinski hearing. After all, Midwest won the case before LIRC on the facts and the law.
*302¶ 67. In reviewing LIRC, the majority talks the talk, but it does not walk the walk. The opinion states: "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." Majority op., ¶ 22 (citing Racine Harley-Davidson, Inc. v. Div. of Hearings & Appeals, 2006 WI 86, ¶ 8 n.4, 292 Wis. 2d 549, 717 N.W.2d 184). This means, "we do not deal directly with the correctness of the court of appeals decision brought to us on review, nor do we give that decision any deference. We review the decision of the commission." West Bend Co. v. LIRC, 149 Wis. 2d 110, 117, 438 N.W.2d 823 (1989). Moreover, we do not disturb the factual findings of the agency if they are supported by credible and substantial evidence. CBS, Inc. v. LIRC, 219 Wis. 2d 564, 570, 579 N.W.2d 668 (1998). "Such findings of fact are conclusive if there is any credible evidence to support those findings." West Bend, 149 Wis. 2d at 117-18.
¶ 68. The majority opinion departs from these familiar principles of law by disregarding LIRC's complete and persuasive decision and memorandum opinion. LIRC made detailed findings of fact which show an impressive grasp of the entire record before the hearing examiner, including a newly prepared transcript of testimony. For instance, LIRC found the following:
1. Complainant was diagnosed with Wilson's Disease in 1981, when he was 22 years old. Wilson's disease, or hepatolenticular degeneration, is a disease marked by an increased output of copper in the urine, deposits of copper in the tissues, cirrhosis of the liver, pigmentation of the cornea, and degenerative changes in the central nervous system. Complainant's medical records state that, in July of 1980, he reported to his physician that he had some tremors in his hands, particularly after working in the woods. Complainant's *303medical records state that, in August of 1981, he was observed to have some ataxia (lack or loss of muscular coordination resulting in irregularity of muscular movements), and posturing of his hands; to have experienced a significant drop in test results over the last two years compatible with decreased cerebral function; and was prescribed the medication Penicillamine to relieve certain of the symptoms of Wilson's disease. Complainant's medical records state, in May of 1986, that he was moderately mentally retarded secondary to Wilson's disease, and that he was on several medica- • tions, including some for treatment of psychiatric disorders. Complainant's medical records state that, in 1989, complainant's mother reported that he suffered from "fits" due to Wilson's disease. Complainant's medical records state that, in August of 1992, he complained that he could drive only 100 miles before becoming fatigued, he suffered from whole body weakness and was weaker than he was five years before, and he was having difficulty sleeping.
¶ 69. There is no detail of this sort in the hearing examiner's decision, in the court of appeals' decision, or in the majority's decision. When LIRC stated that "Complainant was diagnosed with Wilson's Disease in 1981, when he was 22 years old," it accurately summarized Szleszinski's early medical records which contradicted information that Szleszinski supplied to both Dr. Choucair and Dr. Skinner.
¶ 70. Another finding of fact is revealing:
6. As a result of these [complaints] and considering [Szleszinski's] diagnosis of Wilson's Disease, Jeffrey Gillespie, MCT's Vice President of Safety, required that complainant be medically evaluated. On March 13, 1996, complainant was examined by Dr. Carlson. The records of this visit state that complainant told Dr. Carlson that the weaving was caused by brake problems *304with his vehicle. Dr. Carlson recommended the complainant be examined by a neurologist.
(Emphasis added.)
¶ 71. The statement about "brake problems" in the medical records appears to conflict with what Szleszinski told Dr. Choucair: "The patient himself denies any difficulty whatsoever on the job." It is also at odds with the court of appeals' statement: "Szleszinski did not remember either incident." Szleszinski, 287 Wis. 2d 775, ¶ 15.
¶ 72. More significant, however, is LIRC's memorandum opinion. The opinion quoted from Wis. Stat. § 111.34(2) (b) and (c).5 It acknowledged Szleszinski's theory that Dr. Windhorst's opinion "was based exclu*305sively on the 1988 [Office of Motor Carriers] conference report," and therefore "violated the requirement of 111.34(2)(b) and (c) that evaluations be made on a case-by-case basis." LIRC answered this "theory" and determined that:
1. "[A]n individual assessment of complainant's medical condition was conducted both by Dr. Choucair and by Dr. Windhorst."
2. "[CJontrary to complainant's contention here, Dr. Windhorst did not rely exclusively on the 1988 OMC conference report in his assessment of complainant's medical qualification to drive. He specifically states in his letter to [Midwest] that he reviewed Dr. Choucair's report as well as the conference report, in reaching his conclusion."
(Emphasis added.)
¶ 73. These factual conclusions are amply supported by the record. Dr. Windhorst did not examine Szleszinski face-to-face. However, Dr. Windhorst not only read Dr. Choucair's evaluation of Szleszinski (after they had a face-to-face meeting), but also studied the "neurological examination sheet" that accompanied Dr. Choucair's report. We know this because Dr. Windhorst writes in his letter that the "neurological examination did indicate some mild neurological deficits, specifically in the areas of coordination." Dr. Windhorst discussed the case with Pat Farritor, the physician's assistant who approved Szleszinski in June 1995. The two may have had the medical records from both 1995 and 1996 for their discussion. Dr. Windhorst also pointed to the two driving complaints and linked them to Szleszinski's possible coordination deficits. Finally, Dr. Windhorst discussed the 1988 conference report that contained the unqualified recommendation that persons with a con*306firmed diagnosis of Wilson's disease not be approved. Based on the reports he had, Dr. Windhorst concluded that Szleszinski had a 19-year history of Wilson's disease, which is described in the conference report as a "progressive neurological" condition, meaning a condition that tends to become more severe over time. "Putting all this together," Dr. Windhorst made his recommendation.
¶ 74. LIRC's factual findings were reversed as a matter of law by the court of appeals:
1. "Szleszinski contends there is no factual or legal basis for LIRC's determination that Midwest had a valid safety defense .... We agree with Szleszinski." Szleszinski, 287 Wis. 2d 775, ¶ 1 (emphasis added).
2. "To receive federal approval as an interstate carrier, 49 C.F.R. § 391.43(a) states drivers' physicals 'shall be performed by a licensed medical examiner .. ..' The results of the exam are then to be recorded on an exam form like the one included in the code. 49 C.F.R. § 391.43(f). Both subsections, read together, imply drivers will have actual face-to-face contact with the doctor or other examiner. Thus, it appears that under the operative Code language, a paper review of the driver's history is insufficient.... [W]e 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." Szleszinski, 287 Wis. 2d 775, ¶¶ 33-34 (emphasis added).
3. "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 be*307cause the Department of Transportation report said that all Wilson's patients should be disqualified.... Windhorst had no plans to rely on individualized assessment of Szleszinski's abilities, when the Wilson's diagnosis was, in Windhorst's mind, determinative of the outcome." Id., ¶ 35 (emphasis added).
4. "We reiterate .. . that the federal regulations require a physical examination — something Windhorst did not provide. His report... cannot be considered a valid basis for a determination of Szleszinski's fitness to drive." Id., ¶ 36.
5. "Because Windhorst's evaluation is invalid as a matter of law, it should not have been considered by Midwest in its qualification determination or by LIRC at the hearing. Thus, there is no credible evidence to support the determination that Szleszinski was unfit to drive." Id., ¶ 38.
¶ 75. There is no way to hide the fact that the majority opinion is ratifying these extreme and, I believe, mistaken, holdings of the court of appeals. First, the court of appeals' decision is published6 and thus is binding on the court of appeals, the circuit court, and LIRC. See Cook v. Cook, 208 Wis. 2d 166, 560 N.W.2d 246 (1997). Second, the majority repeatedly references the court of appeals' opinion on these holdings. See majority op., ¶¶ 3, 20, 41, and 42 n.18. Third, the majority specifically relies on the court of appeals' invalidation of Dr. Windhorst's opinion to deny relief to Midwest. See majority op., ¶ 42. Fourth, the majority opinion takes issue with the court of appeals' opinion on several points, but it does not take issue with these holdings. Fifth, the decision of the court of appeals is *308modified and affirmed, but it is not modified on these mistaken holdings. In short, these mistaken rulings stand. They will appear as official interpretations of both Wisconsin law and federal regulation.7
¶ 76. These mistaken holdings stand because the majority pretends they are not part of this case. On the contrary, they are at the center of this case.
¶ 77. If, in fact, the majority is reviewing the decision of the administrative agency — LIRC—it needs to explain why it never addresses any finding of fact or conclusion of law that LIRC made before it dismissed Szleszinski's complaint. LIRC did not dismiss Szleszinski's complaint because he did not seek a determination of medical qualification from DOT prior to filing a disability discrimination claim.8 It dismissed his complaint because, based on all the evidence presented at the July 16, 2002, evidentiary hearing, Szleszinski failed to prove his discrimination claim. As LIRC fully explained, it is not a violation of WFEA to take an employment action based on an individual's disability if his disability is reasonably related to the individual's ability to adequately undertake the job-related responsibilities of that individual's employment. Wis. Stat. *309§ 111.34(2)(a). Szleszinski failed to persuade LIRC that Midwest had not proved this defense.
¶ 78. In its decision, LIRC interpreted and applied Wis. Stat. § 111.34(2)(b) and (c). These paragraphs were created by § 17, ch. 334, Laws of 1981. They have been in effect since August 4,1982. They are a critical component of the WFEA. Consequently, these paragraphs had been subject to LIRC's decision-making and oversight for more than 20 years when they were interpreted in Szleszinski's case in 2004. LIRC should have been given great weight deference for its legal interpretation of Wis. Stat. § 111.34(2)(b) and (c). See UFE, Inc. v. LIRC, 201 Wis. 2d 274, 284, 548 N.W.2d 57 (1996). Its findings of fact under these paragraphs are conclusive if there is any credible evidence to support them. West Bend, 149 Wis. 2d at 117-18.
¶ 79. The first issue with respect to Wis. Stat. § 111.34(2) (b) is the meaning of the words "this evaluation shall be made on an individual case-by-case basis." LIRC concluded that Dr. Windhorst had made an individual assessment of Szleszinski's medical condition under the statute. The court of appeals held that "Wind-horst did not make an individualized determination about Szleszinski's ability to drive." Szleszinski, 287 Wis. 2d 775, ¶ 35. Inasmuch as Dr. Windhorst (1) looked at some of Szleszinski's medical records, including evaluations and tests; (2) discussed his case with another professional; (3) considered recent complaints about Szleszinski's driving; and (4) cited a widely known professional report which dealt specifically with Wilson's disease, the court of appeals must have meant that Dr. Windhorst could not have a valid opinion unless he conducted a physical examination of Szleszinski face-to-face. If this is the rule after this case, it will disqualify the expert opinion of all medical professionals who form *310opinions based on the examination of a person's medical records. This cannot be the law.
¶ 80. The second issue with respect to Wis. Stat. § 111.34(2) (b) concerns the phrase "may not be made by a general rule which prohibits the employment or licensure of individuals with disabilities in general or a particular class of individuals with disabilities." LIRC determined that "Dr. Windhorst did not rely exclusively on the 1988 OMC conference report in his assessment." Conversely, the court of appeals determined that Dr. Windhorst "recommended disqualification simply because the Department of Transportation report said that all Wilson's patients should be disqualified." Szleszinski, 287 Wis. 2d 775, ¶ 35. Those opposing positions constitute a dispute over fact, and LIRC should win that dispute unless its determination is not supported by substantial and credible evidence. It is.
¶ 81. Several observations should be made about the relationship between 49 C.F.R. § 391.41 (Physical qualifications for drivers) and Wis. Stat. § 111.34. The federal regulation has several categorical exclusions. For instance, a person is physically qualified to drive a commercial motor vehicle if that person:
(3) Has no established medical history or clinical diagnosis of diabetes mellitus currently requiring insulin for control;
(4) Has no current clinical diagnosis of myocardial infarction, angina pectoris, coronary insufficiency, thrombosis, or any other cardiovascular disease of a variety known to be accompanied by syncope, dyspnea, collapse, or congestive heart failure;
(8) Has no established medical history or clinical diagnosis of epilepsy or any other condition which is *311likely to cause loss of consciousness or any loss of ability to control a commercial motor vehicle;
(13) Has no clinical diagnosis of alcoholism.
49 C.F.R. § 391.41.
¶ 82. The federal rule thus conflicts with Wis. Stat. § 111.34(2)(b) and (c), which prohibit the evaluation of a person for employment on the basis of a rule prohibiting the employment of "a particular class of individuals with disabilities." There can be no dispute, however, that our statute cannot supersede the federal rule with respect to the regulation of persons who drive commercial motor vehicles and must have a valid commercial driver's license.
¶ 83. In fact, however, Wis. Stat. § 111.34(2)(c) specifically states: "If the employment... or licensure involves a special duty of care for the safety of the general public, including but not limited to employment with a common carrier, this special duty of care may be considered in evaluating whether the employee or applicant can adequately undertake the job-related responsibilities of a particular job." Dr. Windhorst made this very point in his letter when he wrote: "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." (Emphasis added.) Szleszinski was driving a 70-80 ton truck across the country; he was not working behind a desk.
¶ 84. The report of the 1988 Conference on Neurological Disorders and Commercial Drivers is nearly 50 pages in length. It was not officially adopted and incorporated into federal rules. The report states that, "The contents do not necessarily reflect the official *312policy of the Department of Transportation." However, the report was published by the Federal Highway Administration. It is included in the appendix to William E. Kenworthy, 1 Transportation Safety and Insurance Law § 14.01(10) (2007). Kenworthy writes as follows:
DOT has issued several interpretive rulings delving in greater detail into the medical criteria for driving a CMV In addition, the FMCSA has held conferences at which specialists in certain medical fields were invited to develop criteria for use by medical examiners for evaluating these criteria. So far, Conference Reports have covered the fields of cardiology, neurology, psychiatry, and respiratory disorders. The Conference Reports were condensed for distribution to medical examiners who provide physicals for drivers. The condensed texts, not published elsewhere, are reproduced in Appendix T (Medical Guidelines) to this Publication.
To the author's knowledge, both DOT interpretive rulings and the Conference Reports are being enforced by FMCSA field agents, despite their unpublished and unofficial status. Drivers have been pulled off the road and disqualified despite holding a current medical certificate. Because these materials have never been adopted pursuant to a formal rule making conforming to the Administrative Procedures Act, they have only such legal weight as a court may find reasonable and persuasive as interpretive rules.
Kenworthy, supra, at § 14.01(10).
¶ 85. In Tate v. Farmland Industries, Inc., 268 F.3d 989, 994 (10th Cir. 2001), the Court of Appeals observed that:
DOT's Medical Advisory Criteria are prefaced with a note indicating they are only advisory and nonbinding. Nevertheless, the views of an agency such as DOT *313implementing a regulatory scheme designed to ensure the safety of our nation's highways " 'constitute a body of experience and informed judgment'" to which employers may properly resort for guidance.
Id. (quoting United States v. Mead Corp., 533 U.S. 218, 234 (2001)).
¶ 86. The same principle applies to the Conference Report. It represents a body of experience and informed judgment among neurologists that should not be ignored. Wilson's disease appears to affect a fairly small number of people. Wilson's disease is a rare disorder, occurring at a rate of approximately 30 cases per million births, or a birth incidence rate of about 1 per 30,000 to 40,000 births. See Ronald F. Pfeiffer, M.D., Wilson's Disease, in 27 Seminars in Neurology 2, 123 (2007). One doctor estimates that there are only 600 cases of the disease in the United States. Id. It is not surprising that there is no subsection in the Code of Federal Regulations for persons with Wilson's disease who apply for commercial motor vehicle permits.
¶ 87. The court of appeals also holds that a doctor or other examiner must have face-to-face contact with an applicant to have a valid opinion about the person's qualification to drive a commercial motor vehicle. This is clearly a matter of federal law. More important, however, the court of appeals takes this proposition and applies it out of context. A medical examiner who issues a certificate that a driver is medically qualified to drive a commercial vehicle may very well be required to conduct a face-to-face examination. However, a doctor who recommends that a person not be approved to operate a commercial motor vehicle for a particular employer, may be able to make that determination on the basis of medical records. For example, if an applicant's medical records show that the applicant has *314a categorically disqualifying medical condition, no useful purpose would be served by a personal examination.
¶ 88. In my view, if we applied the familiar standards of review, we would affirm the decision of LIRC, and this case would be over.
¶ 89. The majority opinion operates in a different universe: It ostensibly concerns itself with the narrow issue of which party must seek a determination from the DOT about the medical qualification of a person who wishes to drive a commercial motor vehicle. As Szleszinski concedes, this is not the basis on which LIRC made its decision.
¶ 90. The majority's ruling requires careful examination.
¶ 91. Wisconsin Stat. § 111.322 provides that it is an act of employment discrimination: "(1) To refuse to hire, employ, admit or license any individual, to bar or terminate from employment... any individual. .. because of any basis enumerated in s. 111.321." Wisconsin Stat. § 111.321 includes "disability" as a prohibited basis for any act of employment discrimination. However, "it is not employment discrimination because of disability to refuse to hire, employ, admit or license any individual... or terminate from employment. . . any individual... if the disability is reasonably related to the individual's ability to adequately undertake the job-related responsibilities of that individual's employment." Wis. Stat. § 111.34(2)(a). "The employer bears the burden to prove this defense to a handicap discrimination claim provided the complainant first establishes that the condition at issue is a handicap within the meaning of sec. 111.32(8) Stats., and that the employer discriminated on the basis of that handicap." Racine Unified Sch. Dist. v. LIRC, 164 Wis. 2d 567, 594, 476 N.W.2d 707 (Ct. App. 1991).
*315¶ 92. An aggrieved person has 300 days after the alleged discrimination to file a complaint with the Equal Rights Division of the Department of Workforce Development. Wis. Stat. § 111.39(1).9 The complaint is then reviewed. Wis. Stat. § 111.39(4)(b). If the Department finds probable cause, the Department may serve a notice of hearing before one of its examiners, and then a hearing may be held. Id.
¶ 93. Considering that a truck driver who claims discrimination must show probable cause before obtaining a WFEA hearing and presumably would like a job in the meantime, it makes perfect sense for the employee to speed up the process and bolster his own case by applying to the DOT under 49 C.F.R. § 391.47 for a determination. Sooner or later, the employee must obtain a medical examiner's certificate and a high quality medical evaluation of the employee's medical status if the employee hopes to win his case.
¶ 94. An employer would have no reason to utilize the DOT procedure until the employer knew a person's medical qualification was at issue. This could take 300 days in Wisconsin. The employer could not use the DOT procedure until the employer could show 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(2). Thus, an employee who withholds a conflicting medical report precludes the employer's ability to use the DOT procedure. In any event, absolutely nothing in Wisconsin law *316requires an employer to prove his defense to a charge of disability discrimination by going to the DOT. Conflicting evaluations by two physicians would not begin to tell the DOT about Leon Szleszinski's lengthy medical history, which was obtained prior to the WFEA hearing through traditional discovery.
¶ 95. In Hermann v. Ort Trucking Co., ERD No. 9301203 (LIRC, Dec. 13, 1994), LIRC said:
[I]n view of the fact that the complainant's qualification to drive is governed by the Federal Motor Carrier Safety Regulations, and such regulations provide for resolution of disputes over conflicting medical evaluations!;,] •. . the respondent should not he held to have acted in violation of the Wisconsin Fair Employment Act unless and until there has been a determination under the federal safety regulations that the complainant is qualified to drive, and the respondent refuses to permit him to drive.
¶ 96. Placing the burden on the employee or prospective employee makes good sense and follows the law in federal Americans With Disabilities Act cases. Harris v. P.A.M. Transp., Inc., 339 F.3d 635, 638 (8th Cir. 2003); Campbell v. Fed. Express Corp., 918 F. Supp. 912, 918 (D. Md. 1996).
¶ 97. If a case proceeds to a hearing, the burden of proving a defense falls to the employer. But in some circumstances, the case should never proceed to a hearing because (1) the employee has no case; or (2) the employee has shown a good case and the employer has responded favorably. The majority's rule does not require an employee to exhaust his administrative remedies; it forces the employer to exhaust an administrative procedure that it may not need.
*317¶ 98. There is often a shortage of drivers in the motor carrier industry. This decision may push or prod motor carriers into hiring commercial drivers who are unsafe at any speed.
¶ 99. For the reasons stated, I respectfully dissent.
¶ 100. I am authorized to state that Justice JON E WILCOX and Justice PATIENCE DRAKE ROGGEN-SACK join this dissent.
The four major categories in the report were: I. Static Neurological Conditions; II. Progressive Neurological Conditions; III. Episodic Neurological Conditions I; and IV Episodic Neurological Conditions II.
This action did not affect Szleszinski's ability to drive a commercial vehicle for a different company.
Leon Szleszinski was involved in a fatal motor vehicle accident on March 15, 1995, in Maryland. There is no evidence that Szleszinski was at fault in the accident. On March 17,1995, Szleszinski told a doctor at the Shell Lake Clinic that he was hit *298by an oncoming car, his truck stopped when it hit a tree, he went to a hospital emergency room in Maryland, one of the occupants of the car was decapitated, and he wondered if the incident would haunt him for the rest of his life. Szleszinski went to a Wisconsin attorney to represent him for his injuries. Szleszinski's Maryland accident is inconsistent with a statement that Szleszinski had no truck driving accidents over a 12-year period.
Hermann v. Ort Trucking Co., ERD No. 9301203 (LIRC, Dec. 13, 1994), involved two conflicting medical reports. LIRC dismissed the employee's complaint, concluding that the employer "should not be held to have acted in violation of the Wisconsin Fair Employment Act unless and until there has been a determination under the federal safety regulations that the complainant is qualified to drive, and the [employer] refuses to permit him to drive."
Wisconsin Stat. § 111.34(2)(b) and (c) reads:
(b) 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. However, this evaluation shall be made on an individual case-by-case basis and may not be made by a general rule which prohibits the employment or licensure of individuals with disabilities in general or a particular class of individuals with disabilities.
(c) If the employment, membership or licensure involves a special duty of care for the safety of the general public, including but not limited to employment with a common carrier, this special duty of care may be considered in evaluating whether the employee or applicant can adequately undertake the job-related responsibilities of a particular job, membership or licensed activity. However, this evaluation shall be made on an individual case-by-case basis and may not be made by a general rule which prohibits the employment or licensure of individuals with disabilities in general or a particular class of individuals with disabilities.
Estate of Szleszinski v. LIRC, 2005 WI App 229, 287 Wis. 2d 775, 706 N.W.2d 345.
The court of appeals decision in Szleszinski is presently cited in the 2005-06 Wisconsin Statutes under Wis. Stat. § 111.321; Equal Rights Decision Digest 2006 § 123.45, at 111 (State of Wis., DWD 2006); Rose Ann Wasserman, Wisconsin Employment Law § 14-10 (Supp. 2007); 29 Mental and Physical Disability Law Reporter 810, 913 (Nov./Dec. 2005).
Szleszinski's brief in the court of appeals states: "[T]he Commission did not base its decision on the fact that Mr. Szleszinski did not utilize the appeal mechanism set forth in the DOT regulations whereby disputed DOT medical certifications can be reviewed."
"A complaint which is deferred to the department by a federal or local employment agency with which the department has a worksharing agreement complies with the requirements of sub. (3) and is considered filed when received by the federal or local agency." Wis. Admin. Code § DWD 218.03(5) (Nov., 2006).