JOSEPH GEBHARDT, Applicant

ANNA BART LTD, Employer

UNITED WISCONSIN, Insurer

An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission makes the following:

In January 2001, the applicant filed an application for hearing seeking compensation related to a December 9, 1999 date of injury. The employer and its insurer (collectively, the respondent) admitted the injury occurred, but denied it caused the disability claimed. It takes the position that the work injury caused only a sprain from which the applicant fully healed by August 2000.

The respondent scheduled an independent medical examination appointment with Richard K. Karr, M.D., on November 20, 2000. The respondent notified the applicant of the examination, fully complying with Wis. Stat. § 102.13(1)(b). However, the applicant did not attend the examination. The respondent nonetheless incurred a $250 charge from Dr. Karr for the applicant's missed appointment.

The employer scheduled a second appointment for an independent medical examination with Dr. Karr on April 27, 2001, again providing proper notice, but again the applicant again did not attend. The respondent again incurred a $250 charge.

The applicant subsequently sent a letter dated May 17, 2001, to the Worker's Compensation Division explaining that he missed the second independent medical examination because he was in a "rehabilitation center and on medication." He anticipated being out of the program by May 30, 2001, and offered to attend an independent medical examination thereafter, and to reimburse the insurer for the $500 in no-show fees it had paid Dr. Karr.

At this point, the ALJ sent a letter dated May 21, 2001 informing the applicant's attorney that the file would remain in "not ready" status until the applicant went to the IME, and further stating he would dismiss the application with prejudice if the applicant failed to appear at a third exam.

A third examination was scheduled with Dr. Karr on August 6, 2001, again with proper notice, and again the applicant did not appear. The employer incurred a third $250 charge for the applicant's non-appearance.

The ALJ then gave the applicant a chance to explain why he missed the third appointment. The applicant provided a handwritten letter which does not provide much explanation. The applicant stated he has moved three times since his injury. However, the applicant also indicated that he was aware of the third appointment for an independent medical examination, and had planned to attend, but apparently got the days confused.

Accordingly, the ALJ dismissed the application with prejudice by order dated September 20, 2001. The applicant appeals.

Wisconsin Statute § 102.13(1)(c) specifically deals with failures to attend an IME exam, including failures where, as here, the applicant was specifically directed to attend by an ALJ. Specifically, Wis. Stat. § 102.13(1)(c) provides:

"102.13(1)(c) So long as the employee, after a written request of the employer or insurer which complies with par. (b), refuses to submit to or in any way obstructs the examination, the employee's right to begin or maintain any proceeding for the collection of compensation is suspended, except as provided in sub. (4). If the employee refuses to submit to the examination after direction by the department or an examiner, or in any way obstructs the examination, the employee's right to the weekly indemnity which accrues and becomes payable during the period of that refusal or obstruction, is barred, except as provided in sub. (4)." (1)

Thus, if a worker fails to go to an independent medical examination, his ability to proceed on his claim is "suspended." If he refuses to go to an independent medical examination after being directed to attend by an ALJ, he is barred from collecting those disability benefits accruing during the period of that refusal. (2) In this case, the statute would bar the recovery of benefits accruing during the period of the applicant's refusal or obstruction of the third scheduled examination that he was instructed to attend by ALJ Doody.

However, the penalties prescribed by the statute for not attending an independent medical examination do not include the total forfeiture of accrued but unpaid benefits, nor do they prescribe a dismissal with prejudice, nor do they permit barring the claim in total. Nor can the commission conclude that an ALJ has the independent discretionary authority to dismiss a claim with prejudice for a failure, even a repeated failure, to attend an independent medical examination.

It is true that the commission and the courts have recognized that Wis. Stat. § 102.17(1)(a) gives the Worker's Compensation Division express authority to control its calendar and manage its internal affairs, (3)  and that the division's decisions in this regard are entitled to deference. Baldwin v. LIRC, 228 Wis. 2d 601, 599 N.W.2d 8 (Ct. App., 1999). Nonetheless, ordinarily neither the department nor this commission may add to a statute that expressly prescribes the penalties for an act or omission. Penalty statutes are generally construed strictly, unless a contrary legislative intent is clear or strict construction thwarts the purpose of the statute. German v. DOT, 2000 WI 62 ¶ 27, 235 Wis. 2d 576, 592.

Here Wis. Stat. § 102.13(1)(c) sets out the penalty for not going to an independent medical examination -- suspension of the claim until the applicant goes to the independent medical examination -- and an additional penalty for failing to go after being ordered to attend by an ALJ--the barring of the accrual of disability during the period of refusal. The language of the statute is clear. Further, given the clarity of the statute and the fact that it specifically addresses situations where a worker disobeys an ALJ's directive to attend an independent medical examination, the commission cannot conclude that a strict construction thwarts the purposes of the statute.

In short, Wis. Stat. § 102.13(1)(c) does not permit an ALJ or this commission to impose a penalty that permanently bars the entire claim. Consequently, the commission concludes that the application may not be dismissed with prejudice. Nonetheless, the commission understands the ALJ's position in this case. It modifies his decision only reluctantly, and only because it concludes the modification is legally compelled.

While the commission may not totally bar the applicant's claim under Wis. Stat. § 102.13(1)(c), the commission does not read the statute to preclude the commission from imposing certain restrictions on the applicant's ability to proceed with his claim under the facts of this case. Accordingly:

1. The applicant's January 2001 application for hearing shall be dismissed, albeit without prejudice. If the applicant desires to proceed with his claim, he must refile an application.

2. If the applicant refiles an application and the respondent still desires the applicant undergo an independent medical examination, the Worker's Compensation Division need not go forward with the case unless the applicant himself arranges for an appointment for independent medical examination by Dr. Karr, including arranging to assume sole responsibility with Dr. Karr's office for any non- appearance at that appointment. The respondent need take no action under Wis. Stat. § 102.13 (1)(b) except to indicate to the applicant that it desires the applicant to undergo an examination.

3. If the applicant recovers disability compensation on his claim, he must forfeit to the insurer the $750 appointment cancellation fees the insurer has already incurred (as the applicant offered in his May 17, 2001, letter.)

NOW, THEREFORE, the Labor and Industry Review Commission makes this

The findings and order of the administrative law judge are modified to conform to the foregoing. The application is dismissed without prejudice. If the applicant desires to proceed with his claim, he must comply with the terms of this decision.

Dated and mailed December 21, 2001
gebharj . wrr : 101 : 1 ND § 8.12

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

cc: 
Attorney Michael T. Sheedy
Jane C. Ische

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(1)( Back ) Wis. Stat. § 102.13(4), the "sub. (4)" referred to in Wis. Stat. § 102.13(1)(c) provides: 

"102.13(4) The rights of employees to begin or maintain proceedings for the collection of compensation and to receive weekly indemnities which accrue and become payable shall not be suspended or barred under sub. (1) when an employee refuses to submit to a physical examination, upon the request of the employer or worker's compensation insurer or at the direction of the department or an examiner, which would require the employee to travel a distance of 100 miles or more from his or her place of residence, unless the employee has claimed compensation for treatment from a practitioner whose office is located 100 miles or more from the employee's place of residence or the department or examiner determines that any other circumstances warrant the examination. If the employee has claimed compensation for treatment from a practitioner whose office is located 100 miles or more from the employee's place of residence, the employer or insurer may request, or the department or an examiner may direct, the employee to submit to a physical examination in the area where the employee's treatment practitioner is located." 

Travel distance is not an issue here, so Wis. Stat. § 102.13 (4) has no bearing on this case.

(2)( Back ) See: Neal and Danas, Worker's Compensation Handbook § 8.12 (4th ed., 1997).

(3)( Back ) Wis. Stat. § 102.17(1)(a) provides in part: ".The hearing may be adjourned at the discretion of the department, and hearings may be held at such places as the department designates." 

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