Jun 18, 201212:00 AMForward HR
with Diane Hamilton and Nilesh Patel
In workers’ compensation disputes, treat the independent physician’s report with care
Attorney Nilesh Patel is a member of Wisconsin SHRM, which is dedicated to being the state leader in HR management and premier source for HR expertise and resources. More information can be found at: http://www.wishrm.org. Nilesh is the principal attorney of the Mahadev Law Group, LLC, which focuses on human resources and employment law issues for organizations. He can be reached at firstname.lastname@example.org.
No right to cross-examine an independent physician
In a recent case, Aurora Health Care wanted to cross-examine the independent physician in order to gain additional information about the physician’s opinion and conclusions, and further explore the employee’s ability to work. Aurora believed it had a right to cross-examine the physician based on Section 102.17(1)(g) in the workers’ compensation statute, and based on a due process right in the Wisconsin Constitution. The employer’s argument was that cross-examination is one of the most effective ways to determine the truth, or in this instance, to remove ambiguity in the physician’s report. Unfortunately for Aurora, the Labor and Industry Review Commission did not agree. On appeal, neither did the Wisconsin Supreme Court.
The court ruled that neither the workers’ compensation statute nor the Wisconsin Constitution provide a right to cross-examine the independent physician. Rather, the law only allows an opportunity for either side to rebut the written report. The court rejected the employer’s argument that the right to rebut must include a right to examine the person providing the report. Instead, the court said the parties could use other means that undermine the report’s credibility. For example, each side could point to internal inconsistencies, provide contrary opinions from their experts, or introduce other evidence that contradicts the report. In short, each side can attack the credibility of the report or poke holes in its validity, but they cannot demand an actual discussion with the physician in order to point out problems, to ask for clarification, or perhaps get the physician to reconsider the conclusions in the report.
Coping with the independent physician’s report
In light of the Supreme Court’s decision, employers and employees must develop some new approaches in workers’ compensation cases:
- Assume that an independent physician’s report will not be helpful and that the best way to avoid that problem will be to eliminate any medical disputes during the hearing. Look beyond evidence and conclusions that simply support your desired outcome. Instead, critically evaluate the medical evaluations and conclusions of your experts and resolve differences with any opposing evidence that undermines your position. If the opposing side has introduced medical reports into evidence, you can cross-examine those doctors during the hearing to elicit testimony that supports your position and contradicts those reports’ conclusions. Even if you are unable to eliminate all medical disputes, the testimony from those cross-examinations may help in ultimately rebutting the independent physician’s report.
- If an independent physician is appointed, point out ambiguities and areas in the report that require clarification. In the Aurora case, the hearing examiner submitted additional questions to the independent physician after the employee pointed out that the initial report failed to address the critical issue in the case. The physician’s responses to those questions proved crucial to the employee prevailing in his claim.
- Request a cross-examination if it is essential to rebut the physician’s report. The Supreme Court’s decision suggests that cross-examination is available at the hearing examiner’s discretion. In which case, convince the hearing examiner that cross-examination is a necessity and that it would be unfair to expect a proper rebuttal without the cross-examination.
The appointment of an independent physician can prove troublesome to either party in a workers’ compensation case. The Wisconsin Supreme Court’s decision that there is no right to cross-examine the independent physician means that in most cases, neither side will be able to directly question or challenge the physician prior to preparing a rebuttal to the physician’s report. Plan to avoid the appointment altogether, or convince the hearing examiner that the report is incomplete in a way that requires follow-up questions or the opportunity to cross-examine.
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