(dissenting). I would reverse the judgment of the circuit court and remand the matter to affirm the order of the department. The department did not, in my view, deny the employer due process.
Medical evidence alone does not establish a disability arising out of a nonschedule injury. Kurschner v. ILHR Department, 40 Wis.2d 10, 19, 161 N.W.2d 213 (1968). Although the employee’s conceded functional disability was small, the employer was required to know that the percentage of loss of bodily function may be far less than the loss of earning capacity caused by a nonschedule injury. Balczewski v. ILHR Department, 76 Wis.2d 487, 251 N.W.2d 794 (1977), decided some five months before the hearing, showed that an employee with a fifty-five percent functional disability caused by a nonschedule injury may be totally disabled for industrial purposes. There the employee proved a total disability through an employment expert.
The employer never asked for advance information regarding the employee’s nonmedical evidence. The employer repeatedly and consistently asked only for medical information. The promise by the department to the employer regarding a continued hearing dealt with the only expressed area of concern. No promise was made as to nonmedical aspects of the hearing. A more detailed statement of the facts than that made by the majority shows ■the lack of concern by the employer for anything except advance medical information.
The employer’s answer to the application requested that the department invoke sec. Ind. 80.21, Wis. Adm. Code, to furnish the employer with medical reports. The employer repeated the request in February and March 1977. The department denied the request and stated that the employer could obtain medical authorizations from the employee and through that mechanism could obtain medical information and that a prehearing conference would be held at which information could be exchanged. *740The employee’s attorney advised the employer in March that he planned to confer with a medical witness April 12, 1977. April 14, 1977 the attorney told the employer that he planned to confer with another expert but did not identify the person or the field of expertise. April 18, 1977 the employer asked the attorney to identify the medical witnesses he proposed to present at the hearing. The attorney replied that the employer could make an appointment with any doctor it liked.
June 10, 1977 the employer suggested that a prehear-ing conference be held so as to learn whether there were “any additional medical findings available which would indicate that we have a possibility of additional exposure on this worker’s compensation case.” An examiner responded for the department that the employee’s attorney had again requested a formal hearing and, “I must assume that he has medical support or he would not do so. If at the hearing, evidence is presented which in the opinion of the examiner constitutes a claim substantially beyond what could be reasonably anticipated by you, a further hearing will presumably be permitted.” No pre-hearing conference was held.
As medical reports alone do not show the extent of the employee’s disability arising out of a nonschedule injury, Pfister & Vogel Tanning Co. v. DILHR, 86 Wis.2d 522, 530, 273 N.W.2d 293 (1979), it is immaterial that the prehearing conference at which an exchange of medical reports could occur was never held.1 A denial of due process therefore cannot be predicated upon failure to hold the conference.
*741The department’s letter regarding a continued hearing was a representation to the employer regarding the circumstances under which a continued hearing would be held. That representation was based on the express assumption that the employee had “medical support” for additional compensation which he would present at the hearing. The next sentence in the letter, referring to “evidence” at the hearing constituting a claim substantially beyond what could be reasonably anticipated, must refer to medical evidence.
The medical evidence presented at the hearing was reasonably anticipated because it barely affected the two percent disability the employer had previously conceded. The devastating evidence presented at the hearing was woíwnedical and was not embraced by the department’s representation to the employer. Denial of due process through an unfulfilled promise or representation did not occur.
I take no satisfaction in what I believe is the required result in this case. If neither party must disclose the nature of the nonmedical evidence it will present, then each party may feel forced to retain an economic expert for fear that the other side will do so.2 If the parties must produce not only medical but economic experts, the cost of worker’s compensation hearings will be considerably increased. That may become a compelling reason, if the legislature or department deems it such, to force complete prehearing disclosures in the future. That reason does not, however, compel the conclusion that the party who did not predict how the other will meet his or her burden has been denied due process of law. A fair hearing makes possible, but does not ensure, a fair result.
Section Ind 80.21, Wis. Adm. Code, cannot be employed to require an exchange of nonmedical information. Invocation of the rule is within the discretion of the department. The rule does not automatically require an exchange of information even if it is invoked. Invocation of the rule would not have disclosed the opinion of the employment expert in any event because the rule applies only to “physicians’ reports.”
It probably is no coincidence that the expert who testified for the appellant employee in this case is the same expert who testified for the employee in Balczewski v. ILHR Department, 76 Wis.2d 487, 261 N.W.2d 794 (1977).