Wisconsin Supreme Court
Employment — workers compensation — cross-examination
Neither sec. 102.17(1)(g) nor sec. 102.17(1)(d)1 provides a party in a workers compensation action a statutory right to cross-examine an independent physician appointed by the Department of Workforce Development.
“Wis. Stat. § 907.06(1), which deals with court-appointed experts, expressly provides that the experts shall be subject to cross-examination: . . . The judge may appoint any expert witnesses agreed upon by the parties, and may appoint witnesses of the judge’s own selection. . . . A witness so appointed shall advise the parties of the witness’s findings, if any; the witness’s deposition may be taken by any party; and the witness may be called to testify by the judge or any party. The witness shall be subject to cross-examination by each party, including a party calling the expert witness as a witness. (Emphasis added.)”
“By contrast, when the legislature drafted the subsection at issue in this case, Wis. Stat. § 102.17(1)(g), it chose to use the general term ‘rebut.’ Because it did not specify the right to cross-examination, it appears the legislature left to the Department’s discretion whether to allow cross-examination in circumstances where it might provide relevant and probative evidence.”
Attorneys: For Appellant: Zitzer, Daniel L., Milwaukee; Poniewaz, Carrie May, Milwaukee; For Respondent: Harlow, R. Duane, Madison; Ward, Robert T., Waukesha