Aurora Consolidated Health Care & Sentry Insurance v. Labor & Industry Review Commission

PATIENCE DRAKE ROGGENSACK, J.

¶ 82. (dissenting). Statutory procedures for worker's compensation actions matter because they provide a level playing field for both employees and employers. When the Labor and Industry Review Commission (LIRC) does not follow statutory procedures and this court affirms what LIRC has done, the court's decision harms both employees and employers by changing the process the legislature has created to fully and fairly resolve worker's compensation claims.

¶ 83. In the case now before us, LIRC arbitrarily prevented the employer, Aurora Consolidated Health Care, from rebutting, by cross-examination, the medical expert opinion upon which LIRC based its decision. LIRC's action is contrary to the explicit statutory provision under which LIRC proceeded when it appointed the medical expert. See Wis. Stat. § 102.17(l)(g). Furthermore, LIRC's arbitrary decision denied due process to the employer.

*398¶ 84. Permitting the parties to a worker's compensation action to question all expert opinions, no matter by whom the experts were retained, is consistent with ch. 102 and with due process. Because the majority opinion decides otherwise, I respectfully dissent.

I. BACKGROUND

¶ 85. On February 27, 2001, Jeffrey Schaefer slipped and fell while making a delivery for Aurora. He injured his lower back in the fall.

¶ 86. Mr. Schaefer has a complicated medical history, including a preexisting back injury, for which he had back surgery in 2000, and necrosis of both hip joints, for which he had hip replacement surgery. Although it is without question that Mr. Schaefer injured his back due to the slip and fall, evaluation of the extent of his work-related disability was complicated by the existence of multiple pre-existing medical conditions.

¶ 87. On November 8, 2007, a Department of Workforce Development (DWD) administrative law judge (ALJ) held a hearing on Mr. Schaefer's worker's compensation claim.1 Mr. Schaefer was the only witness. However, pursuant to Wis. Stat. § 102.17(l)(d), both Mr. Schaefer and Aurora submitted written reports from medical experts opining on the extent of Mr. Schaefer's disability that was work-related.

¶ 88. Dr. James Cain, Mr. Schaefer's medical expert, opined that Mr. Schaefer had reached a healing plateau and had a 40 percent permanent partial disability. Dr. Cain stated that 80 percent of his 40 percent *399disability (i.e., 32 percent) was work-related.2 Dr. Cain's opinion is contained in his April 26, 2006, response to a request for information about Mr. Schaefer's medical condition.

¶ 89. Dr. Sridhara Vasudevan, Aurora's medical expert, opined that Mr. Schaefer had a 35 percent permanent partial disability, but that none of his disability was work-related. Dr. Vasudevan's opinion is set out in an October 22, 2007, report made after his examination of Mr. Schaefer. Subsequent to the hearing, the ALJ issued a written decision that concluded that Mr. Schaefer had 100 percent permanent disability, due to his work-related injury.

¶ 90. On September 18, 2008, after LIRC's review of the ALJ's decision and the record, LIRC remanded the case to DWD to appoint an "impartial" physician, pursuant to Wis. Stat. § 102.17(l)(g), to assess what portion of Mr. Schaefer's functional disability was due to his hip condition and hip surgery. DWD retained Dr. Jerome Ebert.

¶ 91. Dr. Ebert examined Mr. Schaefer and issued a written report on November 6, 2008, in which he opined that Mr. Schaefer could stand, sit, or drive for one half hour before changing positions. He also said that Mr. Schaefer should not lift more than ten pounds on a frequent basis, with 20 pounds being his maximum lifting limitation. Dr. Ebert attributed all of the restrictions on Mr. Schaefer to his work-related injury.

¶ 92. On February 24, 2009, at Mr. Schaefer's request, LIRC remanded to DWD a second time because *400Mr. Schaefer said that Dr. Ebert's opinion was incomplete. As part of its remand, LIRC gave Dr. Ebert a list of questions to address.

¶ 93. On March 3, 2009, Dr. Ebert responded to LIRC's questions. Dr. Ebert said that Mr. Schaefer should be able to work eight hours per day if Mr. Schaefer remained within the restrictions set out in Dr. Ebert's November 6, 2008, communication, and that Mr. Schaefer should be given approximately "two brief 10 minute breaks per day." In addition, Dr. Ebert stated, "Chronic back pain of this nature does tend to flare at times. Sometimes the flares are so severe that work would not be possible. I would estimate that this would occur approximately 2 times per month." (Emphases added.) Dr. Ebert did not say whether the "flares" would occur two times per month or whether they would be so severe two times per month that he would miss work two times per month. He also did not assign any percentage of bodily disability to Mr. Schaefer's physical limitations.

¶ 94. Based on Dr. Ebert's March 3 report, Aurora requested a remand to DWD to permit it to rebut Dr. Ebert's opinion by questioning him about his opinions. This is the first and only time that Aurora requested a remand to DWD; the other two remands were at LIRC's or Mr. Schaefer's request. LIRC denied Aurora's request to remand stating,

There is no ambiguity in the opinions [Dr. Ebert] has provided in this case, and the commission sees no reasonable basis to question whether they were given to a reasonable degree of medical probability.
The commission also fails to see any useful purpose in questioning Dr. Ebert regarding part-time work or theoretical "levels" of work.

Schaeffer v. Aurora Consol. Healthcare Claim No. 2001-012595 (LIRC, May 28, 2009). *401LIRC made no mention of Wis. Stat. § 102.17(l)(g) under which Dr. Ebert was appointed, even though § 102.17(1)(g) contains specific directives about the rights of the parties following a report by a physician DWD has retained.

II. DISCUSSION

A. Standard of Review

¶ 95. We review LIRC's decision to prevent Aurora from questioning Dr. Ebert, not the decisions of the court of appeals or the circuit court. Beecher v. LIRC, 2004 WI 88, ¶ 22, 273 Wis. 2d 136, 682 N.W.2d 29. At issue in this case is whether LIRC correctly interpreted and applied Wis. Stat. § 102.17(l)(g) when it denied Aurora's request to cross-examine Dr. Ebert. Interpretation and application of a statute are questions of law. County of Dane v. LIRC, 2009 WI 9, ¶ 14, 315 Wis. 2d 293, 759 N.W.2d 571.

¶ 96. Generally, we give LIRC's interpretation of a statute one of three levels of deference: great weight deference, due weight deference or no deference, sometimes referred to as de novo review. Id. We may grant great weight deference to LIRC's interpretation of a statute when: (1) LIRC is charged with administration of the statute; (2) LIRC's interpretation is one of long standing; (3) LIRC employed its expertise or specialized knowledge in arriving at its interpretation; and (4) LIRC's "interpretation will provide uniformity and consistency in the application of the statute." Id., ¶ 16 (citation omitted). If we accord great weight deference, we will uphold LIRC's interpretation if it is reasonable, even if another interpretation is more reasonable. Id.

¶ 97. We may grant LIRC's interpretation of a statute due weight deference when: (1) LIRC is *402charged with administration of the statute; and (2) LIRC has some prior experience interpreting it, but such experience does not place it in a better position than the courts to interpret the statute. Id., ¶ 17. If we accord due weight deference, we will uphold LIRC's reasonable interpretation of the statute, so long as another interpretation is not more reasonable. Id.

¶ 98. I do not dispute that the legislature charged LIRC with interpreting Wis. Stat. § 102.17(l)(g), or that LIRC probably has done so on other occasions. However, I can give no deference to LIRC's refusal to remand for a further hearing in this case because LIRC's interpretation is contrary to the words of the statute. Lisney v. LIRC, 171 Wis. 2d 499, 506-07, 493 N.W.2d 14 (1992) (explaining that no deference is due LIRC when its interpretation clearly contravenes the words of the statute). In addition, there is nothing in LIRC's written decision to show that LIRC employed its expertise and specialized knowledge in denying a further hearing as the statute requires. Accordingly, I grant no deference to LIRC's interpretation of § 102.17(l)(g).

¶ 99. Aurora also claims that its due process rights were violated by LIRC's refusal to permit it to question Dr. Ebert. We grant LIRC no deference when a claim of constitutional due process is at issue. Coulee Catholic Schs. v. LIRC, 2009 WI 88, ¶ 31, 320 Wis. 2d 275, 768 N.W.2d 868.

B. Statutory Interpretation

¶ 100. Because Dr. Ebert was retained by DWD pursuant to Wis. Stat. § 102.17(l)(g), the interpretation and application of § 102.17(l)(g) are at issue. Section 102.17(l)(g) provides in relevant part:

*403Whenever the testimony presented at any hearing indicates a dispute or creates a doubt as to the extent or cause of disability ..the department may direct that the injured employee be examined ... by ... an impartial, competent physician .... The report of the examination ... 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.

¶ 101. Statutory interpretation begins with the words the legislature chose because it is through those words that we determine what the legislature meant. Sheboygan Cnty. Dep't of Health & Human Servs. v. Tanya M.B., 2010 WI 55, ¶ 27, 325 Wis. 2d 524, 785 N.W.2d 369. Statutory language is interpreted in the context in which it is used and to promote, rather than contravene, the statute's purpose. Id., ¶ 28. If the words chosen by the legislature are plain and unambiguous, we apply the statute as written and go no further. Id., ¶ 27.

¶ 102. Here, the legislative mandate, "shall have an opportunity to rebut such report on further hearing," is plain and unambiguous when read in the context of DWD's retaining a medical expert under Wis. Stat. § 102.17(l)(g), as DWD did here.3 If the expert presents a report as Dr. Ebert did, then both parties "shall have an opportunity" for a "further hearing."

¶ 103. In order to come within the parameters of Wis. Stat. § 102.17(l)(g) and remand to DWD to retain a medical expert, LIRC must have concluded that the testimony presented at the hearing before the ALJ indicated a dispute or a doubt as to the extent or cause *404of Mr. Schaefer's disability. This is so because concerns about the extent or cause of an employee's disability are the statutory prerequisites for DWD to retain a medical expert. Therefore, the record created before the ALJ must have been insufficient to answer the worker's compensation questions that Mr. Schaefer's condition presented.

¶ 104. However, even though LIRC remanded to appoint an expert under Wis. Stat. § 102.17(l)(g), in its May 29, 2009, written decision, LIRC did not mention the mandated "opportunity" that § 102.17(l)(g) accords both parties when a report is presented by a medical expert that DWD retained. Instead of applying § 102.17(l)(g), LIRC stated that "[t]here is no ambiguity in the opinions [Dr. Ebert] has provided in this case, and the commission sees no reasonable basis to question whether they were given to a reasonable degree of medical probability."

¶ 105. However, there is ambiguity in Dr. Ebert's saying that the "flares" of Mr. Schaefer's back pain may occur with "some frequency" and that some of those flares may require a missed day of work, without explaining whether all "flares" would require a missed day of work. Perhaps if asked, Dr. Ebert would have opined that flares could occur two times per month, but that not every flare would require a missed day of work. This possibility is entirely reasonable because Dr. Ebert also concluded that Mr. Schaefer could work an eight hour day with only "two brief 10 minute" breaks.

¶ 106. It is impossible for anyone to determine what Dr. Ebert would have said. However, what Dr. Ebert might have said is not what causes me to dissent. I dissent because Wis. Stat. § 102.17(l)(g) unambiguously provides that if DWD employs a physician expert who provides a report, then each party "shall have an *405opportunity to rebut such report on further hearing." Aurora asked for such "opportunity," and LIRC refused without addressing the statutory requirements.

¶ 107. The majority affirms LIRC's decision by opining that Aurora had no statutory right to cross-examine Dr. Ebert.4 However, Wis. Stat. § 102.17(l)(g) does not say there is no right to cross-examine the expert retained by DWD. Rather, § 102.17(l)(g) grants two rights to parties in worker's compensation actions where DWD has retained an expert: (1) the opportunity to "rebut" the report; and (2) the opportunity of a "further hearing."5

¶ 108. It is true that some of the statutory provisions that relate to reports presented in a worker's compensation hearing limit responses to those reports to cross-examination. See Wis. Stat. § 102.17(l)(d)l. However, § 102.17(l)(g) is not so limiting because it grants a right to "rebut" the report of a medical expert that DWD retains and to do so at a hearing held after the receipt of the report.

¶ 109. "Rebut" is a term that encompasses more, not less, than a provision providing only for cross-examination. As Black's Law Dictionary explains, "rebut" means "To refute, oppose, or counteract (something) by evidence, argument, or contrary proof, [e.g.,] rebut the opponent's expert testimony." Black's Law Dictionary 1381 (9th ed. 2009). Evidence may be presented by direct questioning and by cross-examination. Furthermore, the most powerful evidence is often ob*406tained by cross-examination. See Aurora Consol. Health Care v. LIRC, 2010 WI App 173, ¶ 46, 330 Wis. 2d 804, 794 N.W.2d 520 (Fine, J., dissenting). Accordingly, I conclude that Wis. Stat. § 102.17(1)(g) affords both parties the opportunity to present additional evidence at a future hearing, which evidence may be presented by direct examination and by cross-examination.

¶ 110. And in addition, there is no need for the majority to affirm the court of appeals, as this court must review the opinion of LIRC, not that of the court of appeals. Beecher, 273 Wis. 2d 136, ¶ 22. However, instead of reviewing LIRC's decision, the majority does what the court of appeals did. The majority opinion interprets a statute that LIRC ignored. In so doing, it permits LIRC to ignore the will of the legislature and creates precedent that limits rights that the legislature established in Wis. Stat. § 102.17(l)(g).

C. Due Process

¶ 111. Aurora asserts that in addition to violating the rights the legislature accorded under Wis. Stat. § 102.17(l)(g), LIRC violated Aurora's right to due process of law, as guaranteed by Article I, Section 1 of the Wisconsin Constitution. The foundation of due process is a fair proceeding. See Wright v. LIRC, 210 Wis. 2d 289, 296, 565 N.W.2d 221 (Ct. App. 1997). However, arbitrary decision making trammels fundamental fairness. It has long been the rule in Wisconsin that an order issued in an agency proceeding where there has not been a full hearing on the evidence underlying the order is a denial of due process. See Bituminous Cas. Co. v. DILHR, 97 Wis. 2d 730, 735, 295 N.W.2d 183 (Ct. App. 1980).

¶ 112. Here, Aurora asked for a hearing to question Dr. Ebert about the opinions he gave in his March *4073 report. LIRC denied that request because LIRC saw "no reasonable basis to question" whether Dr. Ebert's opinions were given to a reasonable medical probability. However, Dr. Ebert opined that "flares" of back pain could occur and "sometimes" the flares would require a day off work. Dr. Ebert also "estímateled]" that the flares could occur twice a month. The words Dr. Ebert chose are not those one usually sees in opinions given to a reasonable degree of medical certainty. See Milwaukee Police Ass'n v. Flynn, 2011 WI App 112, ¶ 7 n.3, 335 Wis. 2d 495, 801 N.W.2d 466.

¶ 113. Furthermore, LIRC said it saw no "useful purpose" in Aurora's request for questions about part-time work. However, Dr. Ebert said Mr. Schaefer could work eight hours per day, with only two, brief ten minute breaks. How that opinion lines up with Dr. Ebert's opinion on "flares" of back pain is anything but clear.

¶ 114. Because this was an opinion DWD ordered and upon which LIRC relied, both parties should have been permitted to participate in a hearing to explore that opinion by questioning. Denial of a hearing on Dr. Ebert's report is the denial of the constitutional right to a fair hearing, as well as a statutory violation. See Waste Mgmt., Inc. v. LIRC, 2008 WI App 50, ¶ 9, 308 Wis. 2d 763, 747 N.W.2d 782 (stating the elements necessary for a fair hearing). Due process is violated because Dr. Ebert's opinion could not be explored and it was the basis for LIRC's order.

III. CONCLUSION

¶ 115. I conclude that LIRC arbitrarily decided to prevent Aurora from rebutting, by cross-examination, the medical expert opinion on which LIRC based its *408decision. LIRC's action is contrary to the explicit statutory provision under which LIRC proceeded when it retained the medical expert. See Wis. Stat. § 102.17(l)(g). Furthermore, LIRC's arbitrary decision denied due process to the employer.

¶ 116. Permitting the parties to a worker's compensation action to question all expert opinions, no matter by whom the experts were retained, is consistent with ch. 102 and with due process. Because the majority opinion decides otherwise, I respectfully dissent.

The record was closed on December 13, 2007, and the ALJ issued his written decision February 21, 2008.

LIRC misstates Dr. Cain's opinion as a 40 percent permanent functional disability due to Mr. Schaefer's work-related injury, rather than 80 percent of 40 percent, as Dr. Cain reported.

The majority opinion agrees that LIRC employed Wis. Stat. § 102.17(l)(g) when DWD retained Dr. Ebert. Majority op., ¶ 25.

Majority op., ¶ 63.

The majority opinion ignores the statutory mandate of the "opportunity" for a "further hearing." Yet, Wis. Stat. § 102.17(l)(g) plainly requires a "further hearing" under the circumstances presented here.