Court Decides Neither Employees nor Employers Have a Right to Cross Examine State Appointed Physician

The Wisconsin Supreme Court issued a little noticed decision (Aurora Consolidated Health Care v. Labor & Industry Review Commission, 2012 WI 49) involving worker’s compensation that could negatively affect Wisconsin’s employers.

In a 5-1 decision – authored by Justice Ann Walsh Bradley, joined by Chief Justice Shirley Abrahamson, and Justices Patrick Crooks, Annette Ziegler and Michael Gableman – the Court held that Wis. Stat. § 102.17(1)(d) did not allow Aurora Consolidated Health Care (Aurora) the right to cross-examine a physician appointed by LIRC who determined that the injured employee was permanently and totally disabled as a result of a work injury. Justice Patience Roggensack authored a lone dissenting opinion, and Justice David Prosser did not participate in the case.

Facts of the Case

The case involved a long set of facts describing the numerous physical ailments of the employee in this worker’s compensation case. The employee, Jeffrey Schaefer, had a preexisting back injury, and necrosis of both hip joints, for which he had hip replacement surgery. The back injury was directly attributed to a work-related slip and fall. However, it was not clear whether his other injuries were work related.

At a Department of Workforce Development (DWD) hearing Schaefer was the only witness. However, pursuant to Wis. Stat. § 102.17(1)(d), both Schaefer and Aurora submitted written reports from medical experts opining on the extent of Schaefer’s disability that was work related.

The case was subsequently reviewed by Labor & Industry Review Commission (LIRC), which remanded the case back to DWD and ordered that the agency appoint an “impartial” physician, pursuant to Wis. Stat. § 102.17(1)(g), to assess what portion of Schaefer’s disability was due to his hip condition and hip surgery.

The DWD-appointed physician issued a report opining that Schaefer could stand, sit, or drive for one half hour before changing positions. The state-appointed physician also said that Schaefer should not lift more than 10 pounds on a frequent basis, with 20 pounds being his maximum. The physician also attributed all of the restrictions on Schaefer’s work related injury.

Schaefer argued that the physician’s report was incomplete, and therefore LIRC remanded to DWD a second time and ordered the state appointed physician to answer a number of questions. The state-appointed physician determined that Schaefer could work eight hour days if he remained within the restrictions of the first report. The physician further noted that Schaefer should given approximately two brief 10-minute breaks per day. In addition, the physician stated that the chronic back pain could flare up from time to time and in those circumstances the pain would be so severe that no work would be possible. The physician estimated that this could happen about two times a month.

Based on the state-appointed physician’s report, Aurora requested a remand to DWD to allow it to rebut the physician’s opinion by questioning him. However, LIRC denied Aurora’s request. Both the circuit court and court of appeals affirmed LIRC’s decision and held that neither the statute nor the Wisconsin Constitution gives a party the right to cross-examine a state-appointed physician’s report in a worker’s compensation case.

Supreme Court Decision

The Supreme Court affirmed LIRC’s decision and the two lower court decisions. The case involved the proper statutory construction of the laws allowing administrative law judges to appoint independent physicians in worker’s compensation cases.

Specifically, at issue was whether Aurora had the authority to “rebut” the state appointed physician’s report by cross-examining the physician. The majority decided that “rebut” does not mean that parties involved in a worker’s compensation case can cross-examine the state appointed physician.

The majority also rejected Aurora’s argument that it has a constitutional right to cross-examine the state appointed physician under Art. I, § 1 of the Wisconsin Constitution. According to the majority:

We acknowledge the important role that cross-examination plays in the adversarial system, in which the goal is a search for the truth. Nevertheless, it does not rise to the level of a due process right in all instances.

The majority further determined that “given our determinations that Aurora had no statutory or constitutional right to cross-examine Dr. Ebert, LIRC’s decision to decline Aurora’s request was discretionary.”

Dissenting Opinion – Justice Roggensack

Justice Roggensack authored the lone dissenting opinion. In it, Justice Roggensack focused on the word “rebut” and determined that it “encompasses more, not less, than a provision providing only for cross-examination.” According to Justice Roggensack, the “statute affords the parties the opportunity to present additional evidence at a future hearing, which evidence may be presented by direct examination and by cross-examination.”

Justice Roggensack further found that in this case Aurora’s due process rights were violated because the state-appointed doctor’s opinion “could not be explored and it was the basis for LIRC’s decision.”

This post was authored by Andrew Cook.