Employer Did Not Have a Statutory Right to Cross Examine Independent
In a worker’s compensation case, an employer argued that it had
both a statutory and due process right to cross-examine an independent
doctor appointed to determine the cause and extent of an
employee’s injury. However, the Wisconsin Supreme Court recently
By org jforward wisbar Joe Forward, Legal Writer,
State Bar of Wisconsin
2012 – An employer who questioned the extent of an
employee’s injury-related disability did not have a statutory or
due process right to cross-examine the independent physician appointed
to examine the employee, the Wisconsin Supreme Court concluded.
Jeffrey Schaefer, employed at Aurora Consolidated Healthcare since
1981, suffered a lower back injury in 2001 when he slipped and fell on a
patch of ice while making a delivery. The injury required back surgery,
and Aurora paid the corresponding benefits and expenses.
However, several back surgeries and a hip replacement later, Schaefer
filed a worker’s compensation claim against Aurora for total and
permanent disability. He argued that his total permanent disability
related directly to the work-related injury sustained in 2001.
But Aurora argued that preexisting or intervening injuries not related
to the 2001 injury caused or were a substantial factor in
Schaefer’s physical restrictions. Thus, Aurora should not have to
pay for all of Schaefer’s permanent and total disability, Aurora
and its insurer argued.
Both parties presented differing reports of medical and vocational
experts at a hearing before an administrative law judge of the
Department of Workforce Development (DWD).
Ultimately, the administrative law judge ruled that Schaefer’s
permanent and total disability resulted from the 2001 injury sustained
at work, and therefore Aurora was on the hook.
Aurora sought review of that decision before the Labor and Industry
Review Commission (LIRC), which remanded the case back DWD to appoint an
independent physician to examine Schaefer’s disabilities under
Wis. Stat. section 102.17(1)(g).
Under that provision, DWD and each party must receive a copy of the
examination report, and each party “shall have an opportunity to
rebut such report on further hearing.” LIRC said the parties could
supplement the record with medical opinions that responded to the
The independent physician, Dr. Jerome Ebert, found that
Schaefer’s physical restrictions, regardless of other injuries,
were due to back problems that started in 2001. LIRC remanded the case a
second time to determine the extent of those restrictions on a future
Ebert gave estimates that led Schaefer’s vocational expert to
deem Schaefer essentially unemployable. In a report, Aurora’s
vocational expert challenged that conclusion, and Aurora requested that
LIRC allow it to cross-examine Ebert on a third remand.
LIRC denied Aurora’s request, failing to see any useful purpose
for cross exam. LIRC ruled that Schaefer’s physical condition was
attributable to the work-related injury.
It also ruled that Schaefer was permanently and totally disabled under
the “odd lot doctrine,” which considers age, education,
training, and other restrictions in determining someone’s chances
of future employment.
No Statutory or Due Process Right
Aurora and its insurer appealed, arguing that it had both a statutory
and constitutional due process right to cross examine Dr. Ebert, and
LIRC erroneously exercised its discretion when it declined to remand the
case to allow cross-examination.
Both the circuit and appeals courts affirmed, and in Aurora
Consolidated Heath Care v. LIRC, 2012 WI 49 (May 11, 2012), the
Wisconsin Supreme Court also affirmed by 5-1 majority (Justice David
Prosser did not participate in the case).
The majority, in an opinion by Justice Ann Walsh Bradley, concluded
that Wis. Stat. section 102.17(1)(g) does not grant a statutory right to
cross-examine an independent physician, even though the statute clearly
gives a party the right to “rebut” the physician’s
“Because it did not specify the right to cross-examination, it
appears the legislature left to the Department’s discretion
whether to allow cross-examination in circumstances where it might
provide relevant and probative evidence,” Justice Bradley
The majority also rejected Aurora’s argument that it had a
constitutional due process right to cross examine Dr. Ebert, ruling that
Aurora had ample opportunity to “rebut” Dr. Ebert’s
examination report with additional evidence about the cause and extent
of Schaefer’s disability.
“We acknowledge the important role that cross-examination plays
in the adversarial system, in which the goal is a search for the
truth,” Justice Bradley wrote. “Nevertheless, it does not
rise to the level of a due process right in all instances.”
Finally, the majority concluded that LIRC did not erroneously exercise
its discretion in refusing to remand the case, ruling that “LIRC
considered the relevant facts, applied a proper standard of law, and
reached a determination that a reasonable person could reach.”
Justice Patience Roggensack filed a lone dissent, arguing that LIRC
violated Wis. Stat. 102.17(1)(g) and due process in rejecting
Aurora’s request to cross examine Dr. Ebert.
The term “rebut,” Justice Roggensack explained, “is a
term that encompasses more, not less, than a provision providing only
for cross examination,” she wrote.
“Permitting the parties to a worker’s compensation action
to question all expert opinions, no matter by whom the experts were
retained, is consistent with ch. 102 and with due process.”
Assistant Attorney General R. Duane Harlow represented the Labor and
Industry Review Commission. Robert Ward of Ward Law Firm, Waukesha,
represented Jeffrey Schaefer.
Daniel Zitzer and Carrie Poniewaz of Otjen, Van Ert & Weir S.C.,
Milwaukee, represented Aurora Consolidated Healthcare and its insurer,