STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)
KATHY L PICKL, Applicant
KSG INDUSTRIES DYNAGEAR INC, Employer
ALLIANZ INSURANCE COMPANY, Insurer
WORKER'S COMPENSATION DECISION
Claim No. 1991009456
ORDER
Pursuant Wis. Stat. § 102.18 (3), the commission remands this case to the Worker's Compensation Division in the Department Of Workforce Development for the taking of additional evidence. Specifically, the commission remands for testimony by Jane K. Sliwinski, M.D., to allow the employer and insurer (collectively, the respondent) to cross-examine Dr. Sliwinski as contemplated under Wis. Stat. § 101.17(1)(d). Upon completion of Dr. Sliwinski's testimony, a transcript shall be prepared and forwarded to the commission for consideration in its review and decision in this matter.
If the parties instead mutually agree to taking Dr. Sliwinski's testimony by deposition, and agree to waive any rights under Wis. Stat. § 102.17(1)(f), they may jointly ask the division not take additional evidence. In that event, the parties should submit a transcript of the deposition testimony directly to the commission.
Dated and mailed: January 11, 1999
picklka.wpr : 101 : 7 ND § 8.21
/s/ David B. Falstad, Chairman
/s/ Pamela I. Anderson, Commissioner
/s/ James A. Rutkowski, Commissioner
MEMORANDUM OPINION
1. Background for decision.
The application for hearing was filed in September 1997. On January 5, 1998, the applicant filed the WC-16-B report of treating medical doctor, Jane K. Sliwinski, with the department. Attached to the report are all of the doctor's treatment notes. A doctor who submits a practitioner's report in lieu of testimony at a worker's compensation hearing, of course, agrees to be available for cross-examination under Wis. Stat. § 102.17(1)(d).
On or about March 25, 1998, the employer's attorney, James Ratzel, sent Dr. Sliwinski a letter asking specific questions. Although the letter itself is not in the record, Mr. Ratzel describes its terms at page 11 of the transcript. Mr. Ratzel's letter requested a short note to respond to a couple of questions. Mr. Ratzel quoted the letter as saying that if a response was provided "we can avoid the need of having you testify live in this matter."
Dr. Sliwinski did not answer Mr. Ratzel's letter. Accordingly, on April 27, 1998, three days before the hearing, a subpoena prepared by Mr. Ratzel was served on Dr. Sliwinski. At this point, Dr. Sliwinski responded to Mr. Ratzel's March 25 letter (which she claimed she had only just received.) See report of Dr. Sliwinski, Exhibit K. Despite discussions shortly before the hearing, Mr. Ratzel never released Dr. Sliwinski from the subpoena.
Dr. Sliwinski did not appear at the April 30, 1998 hearing before ALJ Falkner. The doctor, who had fractured her own wrist, had a medical appointment to have pins removed from her wrist at the time of the hearing.
At the hearing, the respondent objected to the admission of Dr. Sliwinski's practitioner's report in lieu of testimony (Exhibit A) because the doctor failed to comply with the subpoena. The applicant wanted the subpoena quashed (or otherwise not enforced), and to go forward with Dr. Sliwinski's report in the record. Both sides agreed, however, as a fallback position, to a postponement so Dr. Sliwinski's testimony could be obtained if the ALJ agreed her testimony was warranted.
The ALJ in effect quashed the subpoena, admitted Dr. Sliwinski's report at Exhibit A (though excluding the follow- up report on Exhibit K), and went forward with the hearing. He gave two reasons for his action: (1) Mr. Ratzel had made no mention of the need for another report during a mediation conference held in the case sometime after January 20, 1998; and (2) the ALJ believed that three days was simply not enough advance notice to give a medical doctor on subpoena.
The two related questions now before the commission are: (1) whether Dr. Sliwinski's report (Exhibit A) should be included or excluded from the record; and (2) whether the respondent should be allowed the opportunity to cross-examine Dr. Sliwinski on the record in this case. As explained below, the commission declines to exclude Dr. Sliwinski's report at this time. However, after carefully considering the issue, and giving due deference to the interests of ALJ Falkner in controlling the conduct of hearings before him, the commission concludes that the respondent should have the opportunity to cross-examine Dr. Sliwinski. If Dr. Sliwinski refuses to permit cross- examination, the commission shall exclude her report from the record of this case.
2. Discussion.
As stated above, by submitting a practitioner's report in lieu of testimony in a worker's compensation case, a doctor in effect agrees to be cross-examined. Wis. Stat. § 102.17(1)(d). Under Wis. Stat. § 102.17(2s), a party's attorney may issue a subpoena to compel a witness' attendance, provided the subpoena is in the form described in Wis. Stat. § 805.07(4) and served as provided in Wis. Stat. § 805.07(5). A party must serve the subpoena personally, or leave it at the witness' abode, and must prepay certain fees. Wis. Stat. § 885.05 and 885.06. In addition, Wis. Stat. § 885.11 specifies punishments for the failure to comply with a subpoena without a reasonable excuse. In that light, Wis. Stat. § 885.11 recognizes that situations may arise where a subpoenaed witness has a valid excuse for failing to appear at a particular date or time. However, Wis. Stat. ch. 855 does not authorize a court to completely excuse a witness from ever testifying in compliance with a subpoena for reasons of convenience, and in effect deprive the subpoenaing party of that witness's testimony.
Wis. Stat. § 805.07(3) does allow a court to quash subpoenas at or before the time specified in the subpoena for compliance therewith, if the subpoena is unreasonable and oppressive. However, the supreme court has held that the power to quash a subpoena under Wis. Stat. § 805.07(3) is limited to a subpoena duces tecum (a subpoena requiring the production of documents). The statute does not authorize quashing a subpoena ad testificandum (subpoena requiring testimony.) State v. Gilbert, 109 Wis. 2d 501, 509-10 (1982). The court went on to hold that the circuit court's inherent authority to preserve and protect the exercise of the conduct of judicial proceedings also did not justify quashing the subpoena ad testificandum in that case. Id., at 109 Wis. 2d 511. (1)
The applicant cites Dane County Hospital and Home v. LIRC, 125 Wis. 2d 308, 316-17 (Ct. App., 1985) to support its assertion that ALJ Falkner properly exercised his inherent authority by refusing to enforce the subpoena at issue in this case. However, as the respondent points out, the attempt to serve the doctor in question in Dane County Hospital and Home failed because he was out of town. Though it is not clear from the court of appeals decision, the circuit court explained the point of the continuance request (the denial of which was upheld) was to get more time to serve the subpoena. Dane County Hospital and Home v. LIRC and Don Holy, Case no. 83CV918 (Wis. Cir. Ct. Dane County, March 26, 1984), slip op., at page 2.
In this case, of course, the subpoena was validly served. In that respect, this case differs from Dane County Hospital and Home and a number of other cases where the commission refused to grant a continuance based on an unsuccessful attempt to subpoena a doctor. (2) Beyond that, while three days' notice may seem like inadequate time to expect a practicing medical doctor to rearrange her schedule to appear at a worker's compensation hearing, in this case the subpoena was issued only after the doctor failed to timely respond to a letter from the respondent's attorney.
In sum, the commission agrees with the ALJ that Dr. Sliwinski had a valid excuse for failing to appear at the April 30 hearing in compliance with the subpoena based on her prior medical appointment. Consequently, the ALJ properly admitted her report into evidence.
However, the commission cannot conclude that the respondent's opportunity to cross-examine Dr. Sliwinski should be permanently foreclosed under the facts of this case. Mr. Ratzel's letter to Dr. Sliwinski more than one month before the hearing establishes that his decision to subpoena the doctor was not merely designed to delay the hearing or thwart its purpose. Given the respondent's right to cross-examination under Wis. Stat. § 102.17(1)(d), Dr. Sliwinski's failure to respond to Attorney Ratzel's letter, the fact the subpoena was properly served, and the lack of statutory authority for quashing subpoenas to accommodate a medical expert's schedule, the commission believes a postponement or continuance to get Dr. Sliwinski's testimony should have been granted.
cc: ATTORNEY JAMES C RATZEL
RATZEL & MATHIE LLC
ATTORNEY GEORGE BURNETT
LIEBMAN CONWAY OLEJNICZAK & JERRY SC
ATTORNEY JOHN DRANA
LINDNER & MARSACK SC
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Footnotes:
(1)( Back ) The commission recognizes that Gilbert is a criminal case. On the other hand, the subpoenaed witness in Gilbert was a ten year child subpoenaed to testify in a criminal proceeding of her mother who was accused of killing the witness's younger sister. Thus, even if the Gilbert's interest in having a subpoenaed witness testify in her criminal proceedings outweigh the respondent's interests here, the child witness's interest in not testifying in Gilbert would likewise outweigh Dr. Sliwinski's interest in this case.
(2)( Back ) Footit v. Projector Recorder Belt, WC case no. 87052398 (LIRC, October 13, 1992); Hutchinson v. Custom Drywall, WC case no. 91032882 (LIRC, April 23, 1996), aff'd case no. 97-1675 (Wis. Ct. App., September 3, 1998); and Webster v. Skipperline Indust. Inc., WC case no. 1993045078 (LIRC, August 31, 1998).