Aurora not entitled to cross-examination of medical examiner in worker's compensation case

By Joe Forward, Legal Writer, State Bar of Wisconsin

Dec. 1, 2010 – Neither due process nor Wisconsin statute give a party the per se right to cross-examine an independent court-appointed medical examiner when there is a dispute or doubt as to the extent or cause of disability or death in a worker’s compensation case.

That was the ultimate holding in Aurora Consolidated Healthcare v. LIRC, 2010AP208 (Nov. 30), a case in which Aurora challenged the Labor and Industry Review Commission’s (LIRC) award of benefits to Jeffrey Schaeffer, who injured his back as a courier for Aurora in 2001.

Aurora paid temporary total and partial disability benefits and some associated medical costs for the 2001 work-related accident. In 2005, Schaeffer developed a hip problem that required a total hip replacement. In 2006, Schaeffer filed a worker’s compensation claim with the Department of Workforce Development (DWD) for additional benefits.

Based on medical opinions from Schaeffer’s doctors, the Administrative Law Judge (ALJ) awarded additional benefits after concluding that Schaeffer was permanently and totally disabled and sustained a permanent total loss of earning capacity from work-related injury.

Aurora appealed to LIRC, which remanded the case back to DWD with instructions to appoint an independent medical examiner to assess Schaefer’s disabilities.

The independent medical examiner performed an assessment, and reported that Schaeffer’s disability restrictions stemmed entirely from work-related injuries, not the hip replacement.

LIRC reviewed the examiner’s assessment and remanded the case, requesting clarifications through specific questions to the medical examiner about how Schaeffer’s physical restrictions would impact his work schedule, which the examiner answered.

This prompted Aurora to request that LIRC remand the case again to allow Aurora to cross-examine the medical examiner about his answers.

LIRC denied Aurora’s request, and affirmed DWD’s decision that Schaeffer was totally and permanently disabled and sustained permanent total loss of earning capacity. Aurora appealed the circuit court and the circuit court affirmed, prompting a second appeal.

Worker’s compensation statutes

Aurora argued that relevant worker’s compensation statutes required LIRC to allow Aurora to cross-examine the independent medical examiner.

Specifically, Aurora argued that Wis. Stat. sections 102.17(1)(g)[i]and 102.17(1)(d)1[ii]“require LIRC to provide Aurora with an opportunity to cross-examine an independent medical examiner appointed by the Department.”

But the District I Wisconsin appeals court explained that section 102.17(1)(g) gives a party the opportunity “to rebut” an independent medical examiner’s “report,” not the independent examiner in person. In addition, section 102.17(1)(d)1 “provides that certain expert reports are prima facie evidence when the author of the report consents to cross-examination” but “does not require that all evidence submitted in a case be prima facie evidence.”

LIRC did not violate section 102.17(1)(g) because Aurora had an opportunity to rebut the medical examiner’s report, the appeals court explained, and section 102.17(1)(d)1 “does not require that [the medical examiner] be subjected to cross-examination before his reports can be submitted into evidence.”

Due process

Aurora also argued that “the right to cross-examine a witness is a basic necessity of due process and that LIRC denied Aurora this basic right when it refused to allow Aurora to cross examine” the independent medical examiner. The appeals court disagreed.

Due process requires a fair hearing, the appeals court explained, and Aurora was given a fair hearing because it was timely notified of the claims, had an opportunity to meet the claims through competent evidence, and had the right to be “heard by counsel upon the probative force of the evidence.”  The appeals court also noted that “cross examination is not the only way to ensure that due process has been satisfied.”

Credible and substantial evidence

The appeals court rejected Aurora’s claim that LIRC’s conclusion was not based on credible and substantial evidence, as required.

Contrary to Aurora’s argument, LIRC’s decision to appoint an independent medical examiner does not mean that Schaeffer’s evidence was insufficient to meet his burden of proof, the appeals court explained.

LIRC was free to reach a conclusion based on all medical opinions, and “[w]e defer to LIRC’s assessment of witness credibility,” the court wrote.

Additionally, the appeals court barred Aurora from arguing that the examiner’s opinions were not given to a reasonable degree of medical certainty. Aurora failed to raise the issue when LIRC denied its requests the appeals court explained, and in any event, the reports “satisfy the certainty requirements.”

Thus, the appeals court upheld LIRC’s decision to award Schaeffer worker’s compensation benefits based on total and permanent disability, as well as total loss of earning capacity.

Dissent

Judge Ralph Fine dissented from the majority opinion, arguing that the majority “construes the term “rebut” in Wis. Stat. 102.17(1)(g) too restrictively.

“The right to ‘rebut’ what a witness … says … is hollow without the right to cross-examine. …” Judge Fine wrote. “In my view, ‘rebut’ must encompass the right to cross-examine, whether at a hearing or by deposition.”