No right to cross-examine IME

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The right to “rebut” a report does not include the right to cross-examine its author.

On Nov. 30, the Wisconsin Court of Appeals held that under sec. 102.17(1)(g), the Labor and Industry Review Commission (LIRC) did not exceed its authority in refusing an insurer the opportunity to cross-examine the appointed independent medical examiner (IME).

Judge Kitty Brennan wrote for the court, “[The insurer] correctly notes that, once the independent medical examiner’s report is obtained, sec. 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.”

Jeffrey Schaefer was a courier employed by Aurora who was injured when he slipped on ice while making a delivery. Aurora conceded liability, but contended that Schaefer was not permanently and totally disabled, as his treating physicians maintained.

Dr. Jerome Ebert was appointed IME by the ALJ. After Dr. Ebert submitted his report, the ALJ denied several requests by Aurora to cross-examine him about his conclusions.

LIRC affirmed the ALJ’s determination that Schaefer was totally and permanently disabled, as did the circuit court, and the Court of Appeals.

The statute provides in relevant part that the IME’s report, “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.”

Aurora argued that the right to rebut the report at a hearing implicitly included the right to cross-examine, but the court disagreed.

The court concluded that, if the Legislature intended to permit cross-examination, it would have done so, noting that subsec. (1)(d) explicitly provides a right to cross-examine expert witnesses and treating physicians.

The court wrote, “Wis. Stat. sec. 102.17(1)(g) makes no provision for the independent medical examiner to give testimony at a hearing or a deposition, providing no opportunity for cross-examination to occur. And by stating that the independent medical examiner must submit a report ‘in writing’ to LIRC and the parties, the legislature indicates that it did not intend the examiner to attend the hearing.”

The court also rejected Aurora’s argument that the provision in subsec. (1)(d) – providing for cross-examination of physicians – permits it to cross-examine the IME. The court emphasized language in the subsection providing for cross-examination of physicians “presented by a party,” rather than appointed by the ALJ.

Finally, the court rejected Aurora’s argument that due process requires it be allowed to cross-examine the IME, concluding, “Aurora was given ample opportunity to present competent evidence – vocational and medical reports – challenging the findings in Dr. Ebert’s reports and that is all that due process affords it. There is no per se right to cross-examine a court-appointed author of a report.”

Judge Ralph Adam Fine dissented, maintaining that the right to rebut must encompass the right to cross-examine, whether at a hearing or a deposition.

Judge Fine wrote, “I agree that the word ‘rebut’ does not say, in haec verba, ‘cross-examine.’ But the right to ‘rebut’ what a witness (either expert or lay) says (either by admissible hearsay, the case here, or by actual testimony) is hollow without the right to cross-examine, if that is possible.”

David Ziemer can be reached at [email protected]

What the court held

Case: Aurora Consolidated Health Care v. LIRC, No. 2010AP208

Issues: Under the Worker’s Compensation Act, is there a right to cross-examine the independent medical examiner appointed by the DWD?

Holdings: No. The right to rebut the report does not include the right to cross-examine its author.

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