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2010AP208 Aurora Consolidated Health Care v. LIRC

Workers compensation; independent medical examiners

The right to rebut the report of an independent medical examiner does not include the right to cross-examination.

“Wis. Stat. § 102.17(1)(g) provides LIRC with the discretion to request an independent medical examiner when ‘the testimony presented at any hearing indicates a dispute or creates a doubt as to the extent or cause of disability.’ And Aurora correctly notes that, once the independent medical examiner’s report is obtained, § 102.17(1)(g) requires that the parties be permitted to ‘rebut such report.’ However, the right to rebut a report is not the same as the right to cross-examine the independent medical examiner who drafted the report.”

“If the legislature had intended to permit cross-examination of the independent medical examiner, it could have done so. Indeed, in other sections of the Worker’s Compensation Act the legislature explicitly provides the right to cross-examine a witness, see Wis. Stat. § 102.17(1)(d)1. (providing that physicians presented by a party shall be subject to cross-examination), as it does in other statutes outside the Worker’s Compensation Act, see Wis. Stat. § 907.06 (providing that an expert witness appointed by the circuit court ‘shall be subject to cross-examination by each party’). The legislature did not do so here.”


Recommended for publication in the official reports.

2010AP208 Aurora Consolidated Health Care v. LIRC

Dist. I, Milwaukee County, White, J., Brennan, J.

Attorneys: For Appellant: Zitzer, Daniel L., Milwaukee; Poniewaz, Carrie May, Milwaukee; For Respondent: Harlow, R. Duane, Madison; Ward, Robert T., Waukesha

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