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  • WisBar News
    May
    15
    2012

    Employer Did Not Have a Statutory Right to Cross Examine Independent Doctor

    Joe Forward
    Legal Writer

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    May 15, 2012 – An employer who questioned the extent of an employee’s injury-related disability did not have an automatic statutory or due process right to cross-examine the independent physician appointed to examine the employee, the state supreme court recently ruled.

    Employer Did Not Have a Statutory Right to Cross Examine Independent Doctor

    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 disagreed.

    By org jforward wisbar Joe Forward, Legal Writer, State Bar of Wisconsin

    Employer Did Not Have a Statutory Right to 
Cross Examine Independent Doctor May 15, 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.

    LIRC Rulings

    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 report.

    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 work schedule.

    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 conclusions.

    “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 wrote.

    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.”

    Dissent

    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.”

    Attorneys

    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, Sentry Insurance.