The Supreme Court of Wisconsin in Aurora Consol. Health Care v. LIRC, 814 NW 2d 824 – Wis: Supreme Court 2012, dealt with the right to cross-examine an independent physician appointed by the commission. The court dealt with a claimant who had 2 back surgeries and failed back syndrome. The court rejected the request for a third demand, finding there was no statutory or constitutional right to cross-examine the IME physician.
The court stated:
In the two months following Dr. Ebert’s supplemental report, Aurora was given the opportunity to rebut the report with additional medical evidence as well as the opportunity to submit an additional vocational report. Although LIRC ultimately rejected Aurora’s vocational expert’s opinion that Schaefer’s absenteeism could be overcome by invoking the provisions of the FMLA, the opinion was offered, it was introduced into evidence, and it was considered by LIRC when it rendered its decision. We conclude that LIRC did not violate Aurora’s due process rights when it declined to remand for cross-examination.
Given our determinations that Aurora had no statutory or constitutional right to cross-examine Dr. Ebert, LIRC’s decision to decline Aurora’s request was discretionary. See Theodore Fleisner, Inc., 65 Wis.2d at 327, 222 N.W.2d 600. In its written decision, LIRC declined to grant Aurora’s last-minute request for a third remand because it concluded that further clarification from Dr. Ebert was unnecessary and would serve no useful purpose.