Aurora not entitled to cross-examination of medical examiner in
worker's compensation case
Aurora challenged the evaluation of a court-appointed independent
medical examiner in a worker's compensation case, and wanted to
cross-examine the medical examiner on due process and statutory grounds.
But the appeals court held that cross-examination was not a per se
By org jforward wisbar 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
Aurora appealed to LIRC, which remanded the case back to DWD with
instructions to appoint an independent medical examiner to assess
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
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
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.”
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
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
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.
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
[i] Wis. Stat.
section 102.17(1)(g) states, in relevant part, that “[w]henever
the testimony presented at any hearing indicates a dispute or creates a
doubt as to the extent or cause of disability or death, the department
may direct that the injured employee be examined … by or from an
impartial, competent physician … The report of the examination
… shall be transmitted in writing to the department and a copy of
the report shall be furnished by the department to each party, who shall
have an opportunity to rebut such report on further hearing.”
[ii] Wis. Stat.
section 102.17(1)(d)1 states, in relevant part, that “[c]ertified
reports of physicians … who have examined or treated the
claimant, and of experts, if the practitioner or expert consents to
being subjected to cross-examination also constitute prima facie
evidence as to the matter contained in those reports.”