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Court considers right to cross-examine

By: David Ziemer, [email protected]//November 21, 2011//

Court considers right to cross-examine

By: David Ziemer, [email protected]//November 21, 2011//

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The Wisconsin Supreme Court is set to decide whether parties have a right to cross-examine independent medical examiners in workers’ compensation cases.

At issue is the meaning of the term “rebut.”

Section 102.17(1)(g) provides that each party “shall have an opportunity to rebut” the report of the independent medical examiner “on further hearing.” The Labor and Industry Review Commission, the Milwaukee County Circuit Court and the Court of Appeals have all held that “rebut” does not include cross-examination, but only the opportunity to present evidence contrary to the report. Aurora Consolidated Health Care v. LIRC, 2010 WI App 173.

The Court of Appeals’ opinion rested heavily on the contrast between subsecs. (1)(g) and (1)(d), which explicitly provides the right to cross-examine a witness.

The court explained, “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. sec. 102.17(1)(d). … The legislature did not do so here.”

Judge Ralph Adam Fine dissented, arguing, “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.”

The employer amplifies the argument in its brief to the Supreme Court, emphasizing the language “on further hearing,” which, it contends, necessarily contemplates a live hearing at which cross-examination will be permitted.

The employer also emphasizes other language in subsec. (1)(d), which states that reports of medical examiners are prima facie evidence “if the practitioner or expert consents to being subjected to cross examination.”

The employer further argues a constitutional issue to the court, asserting that cross-examination is a fundamental requirement for due process.

In response, the employee relies not just on the language in subsec. (1)(d) cited by the Court of Appeals, but on policy grounds.

The employee contends, “Locating a physician willing to do the type of exam contemplated by Wis. Stat. 102.17(1)(g) with the further requirement that the physician be willing to testify at hearing and be subjected to cross-examination would pose a daunting task.

“Interpreting the statute to require cross-examination would eliminate the effect of the statute because there would be no physician willing to do the exam.”

In brief

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

Attorneys:
For Aurora: Daniel Zitzer and Carrie May Poniewaz of Otjen, Van Ert & Weir SC, Milwaukee
For Schaefer: Robert T. Ward of Ward Law Firm, Waukesha

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