Welcome to the website of the Wisconsin Labor and Industry Review Commission. LIRC is an independent administrative agency which decides appeals in cases involving Unemployment  Insurance (UI),  Worker's Compensation (WC), and  Equal Rights (ER). Information available at this website includes:			In Brief -  S.Ct issues decision in WC re cross-examination of appointed expert WC decisions added 5/8 2012 Edition of ER DIgest Ct App issues decision in WC re home injury fitness training Ct App issues decision in WC re adverse party on appeal ER decisions added 03/13 UI decisions added 04/27
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May 11, 2012--In Aurora Consolidated Health Care & Sentry Ins. v. LIRC & Jeffrey Schaefer, 2012 WI 49, __Wis. 2d__, __N.W.2d __, the court affirmed a Court of Appeals decision, that in turn affirmed a LIRC's decision to deny Aurora's request to cross-examine the independently-appointed physician, Dr. Jerome Ebert, regarding the second of his two medical reports submitted in response to LIRC's discretionary orders for additional evidence.  The court also upheld LIRC's finding that Schafer's work injury had resulted in PTD.

In 2001, Schaefer sustained a work-related back injury that led to two fusion surgeries and permanent residuals.  In 2005, Schaefer developed a nonindustrial right hip condition and underwent right total hip replacement with a good result.  In 2007, he underwent a third fusion surgery related to the work injury, and claimed PTD.  The primary medical dispute concerned what elements of Schaefer's disability were attributable to his back condition as opposed to his nonindustrial, post-work-injury hip condition.  LIRC ordered an independent medical opinion, and pursuant to its authority under Wis. Stat. 102.17(1)(g), the department appointed Dr. Ebert to give that opinion.  Dr. Ebert opined that all of Schaefer's permanent disability was due to the work-related back injury, and also assessed certain permanent restrictions.  Aurora's voc. expert opined that based on Dr. Ebert's restrictions Schaefer could perform numerous jobs.

Schaefer asserted to LIRC that Dr. Ebert's opinion failed to clarify whether or not Schaefer could maintain a consistent work schedule, and LIRC thereafter ordered a second opinion from Dr. Ebert to address the work schedule question.  In his second opinion Dr. Ebert indicated that Schaefer could work an 8-hour day, but he would need two unscheduled breaks and would miss work about twice a month due to pain flare-ups.  The parties were given 30 days to respond to Dr. Ebert's second report, and Schaefer's voc. expert opined that the breaks and missed work would make Schaefer unemployable.  Thirty days after Dr. Ebert's report Aurora requested a two-week extension in order to provide a "supplemental report" as a response to Dr. Ebert.  Two weeks later Aurora provided another vocational expert's report opining Schaefer was employable, and also submitted a request to LIRC that it either be allowed to cross-examine Dr. Ebert regarding his second opinion, or that Dr. Ebert be required to address three additional, written questions posed by Aurora.  LIRC denied both requests and found that Schaefer was PTD.

The court first addressed Aurora's claims that it had statutory and due process rights to cross-examine Dr. Ebert.  The court noted that 102.17(1)(g) provides the right to "rebut" the independent physician's report, and LIRC's order allowed Aurora to submit medical/vocational reports in rebuttal to Dr. Ebert.  The court held that LIRC acted within its reasonable discretion to deny cross-examination, noting that 102.17(h), 906.14(1), and 907.06(1) all provide the specific right to cross-examine, while 102.17(1)(g) does not.  Aurora argued that since 102.17(1)(d) specifically provides the right to cross-examine, by implication (1)(g) should also be read to provide that right.  The court responded that (1)(d) applies only to reports "presented by a party," not those ordered by LIRC or the department.

The court additionally held that the due process right does not in all instances include the right to cross-examine.  The court explained  that the administrative model of procedural due process is not identical to the judicial model, and that Aurora was afforded administrative due process with ample opportunity to rebut Dr. Ebert's opinion with medical and vocational evidence of its own.

The court also accepted LIRC's explanation provided to Aurora for denying the alternative request to direct three written questions to Dr. Ebert, asking whether his opinion was given to a reasonable degree of medical probability, and whether Dr. Ebert's restrictions would change for part-time or another "level" of work.  LIRC answered that it knew Dr. Ebert's opinion was given to a reasonable degree of medical probability, and it saw no useful purpose in asking Dr. Ebert about part-time or other levels of work.

The court also emphasized the fact that Aurora had waited so long after Dr. Ebert's opinion to come up with the request for cross-examination.  Finally, the court affirmed the finding of PTD.

 Justice Roggensack submitted the sole dissent, relying upon 102.17(1)(g)'s provision to allow rebuttal "on further hearing."  The majority noted that in oral argument Aurora's counsel conceded that he had not requested additional hearing, but only wanted "to ask Dr. Ebert some questions about his opinions."  Additionally, in footnote # 8 to the majority opinion, the majority made it clear that there was no right to a hearing for cross-examination, but that a hearing might be available "for other purposes."

April 10, 2012 -- The 2012 Edition of the Equal Rights Decision Digest is now available on-line. This edition is updated with summaries of relevant LIRC and court decisions through calendar year 2011.

March 22, 2012---In City of Appleton Police Dept. v. LIRC & Michael Nofzinger, 2012 WI App 50, __ Wis. 2d __ (petition for review pending), the court of appeals affirmed LIRC's decision finding that a policeman injured while performing push-ups at home as part of his fitness training for the employer's mandatory, twice-a-year physical fitness test, was injured while performing services arising out of and in the course of his employment.

The employer requires its officers to perform push-ups in each of the physical fitness tests, and the push-ups must be performed in accordance with the employer's specific standards.  The collective bargaining agreement requires each officer to provide a signed statement indicating that he/she has participated in a personal physical fitness training program during the 6 months preceding each test.  As a result of receiving a "good" or "excellent" score on the test, officers become eligible for a retirement bonus incentive.  Lower-scoring officers are not eligible for the bonus, and can be subject to discipline.  While training at home for one of these upcoming fitness tests, Nofzinger was performing push-ups on a carpeted basement floor.  As he performed his twelfth succesive push-up he sustained a rotator cuff injury to his shoulder.

The employer argued that Nofzinger's injury was excluded from coverage under Wis. Stat. 102.03(1)(c)3. (the "physical well-being program" exclusion), because performing the push-ups was allegedly voluntary and without compensation.  The court agreed with LIRC that the applicant was required to perform push-ups in order to prepare for a test that itself required the performance of push-ups.  Additionally, there was no evidence that the employer provided on-duty time or on-premises facilities for officers to train for the mandatory tests, and therefore fact that the employer did not directly control the performance of the push-ups was not significant.  The employer argued that LIRC's decision saddled it with risks it could not minimize, but the court rejected this argument, citing the employer's deliberate choice to include push-ups in the fitness test regimen, its provision of a training DVD to demonstrate acceptable standards for push-ups, its failure to circumscribe the time or place for training, and the employer's inherent acceptance of risk in requiring the training and tests.

 The court declined to address whether or not LIRC correctly found that Nofzinger was compensated for his training activity, because without the element of voluntariness the exclusionary provision of Wis. Stat. 102.03(1)(c)3, does not apply (the circuit court found the retirement bonus constituted compensation).  The court applied the great weight deference standard, citing Honthaners v. LIRC, 240 Wis. 2d 234; and Styberg Engineering v. LIRC, 278 Wis. 2d 540.

January 22, 2012 -- In Xcel Energy Services, Inc., v. LIRC and John Smoczyk, 2012 WI App 19, 339 Wis. 2d 413 (petition for review pending), the Court of Appeals affirmed a dismissal of Xcel Energy Services, Inc.’s complaint must be dismissed on the ground that Xcel failed to name its worker’s compensation insurance carrier.  The court held the insurer was an “adverse party” under Wis. Stat. § 102.23(1)(a), citing Miller Brewing Co. v. Labor & Industry Review Commission, 166 Wis. 2d 830, 480 N.W.2d 532 (Ct. App. 1992), aff’d 173 Wis. 2d 700, 495 N.W.2d 660 (1993) holding that an adverse party” for worker’s compensation actions in circuit court “includes any party bound by the Commission’s order or award granting or denying compensation to the claimant.”

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This page was last updated May 21, 2012.