JOSEPH A. KLATT, Applicant
MILWAUKEE COMPOSITES, Employer
ST PAUL FIRE & MARINE INS CO, Insurer
This case has been remanded to the commission by the order of the Milwaukee County Circuit Court in Joseph A. Klatt v. Labor and Industry Review Commission, case no. 02-CV-005479 (Milw. County Cir. Court March 19, 2003). Pursuant to the remand order, the commission makes these:
1. Posture.
Administrative Law Judge Neil L. Krueger of the Department of Workforce Development, Worker's Compensation Division (the department) initially heard this case over three days, February 12, 2001, April 30, 2001, and September 26, 2001. Before the first day of hearing, the insurer arranged for surveillance of the applicant, which occurred in April 2000. Videotapes of the surveillance are at exhibits 11 and 12, and the file contains a "corrected copy" of the videotapes reviewed by the applicant's attorney in October 2000.
In May 2000, the insurer retained Gorden Clark, M.D., to examine the applicant on its behalf. Dr. Clark prepared a report following his examination dated May 25, 2000 (exhibit 1). Thereafter, on August 28, 2000, Dr. Clark did a follow-up report (exhibit 2) after watching the activities shown in the surveillance tape.
The employer and its insurer (collectively, the respondent) did not provide a copy of Clark's second report to the applicant until just before the February 2001 hearing. The applicant's attorney objected to the admission of the second report evidently raising the fifteen-day rule under Wis. Stat. § 102.17(1)(d) (1) and the immediate disclosure rule under Wis. Stat. § 102.13(1)(b).
ALJ Krueger admitted Dr. Clark's second report over the applicant's objection at the first hearing, which was held on February 12, 2001. At this hearing, it came out that the insurer had provided the videotapes to a treating doctor, Bhupinder S. Saini, M.D. February 12, 2001 transcript, pages 28, 45, and 48-50. Shortly thereafter in early March 2001, the applicant asked the respondent to provide copies of the videotapes. The respondent did not provide copies.
The applicant's attorney then wrote a letter to the ALJ, on April 23, 2001, one week before the second hearing on April 30, 2001. The attorney renewed his objection to Dr. Clark's second report, and asked also that the videotapes be excluded because the respondent refused to provide them. ALJ Krueger responded by letter dated April 24, 2001, stating that he could not order the respondent to provide the tapes to the applicant before the hearing. However, the ALJ also stated that if the respondent refused to provide the applicant the videotapes before the hearing, he (Krueger) might allow additional time to the applicant to have his doctor review the tapes.
The second day of hearing was held, and then the third. At the third day of hearing, the videotapes were finally introduced. The applicant objected to their admission. September 26, 2001 transcript, page 39. The ALJ admitted them, nonetheless, and directed the respondent to provide copies to the applicant so that the applicant:
...would have a chance to observe them and look over the tapes and even comment on them in a letter after today's hearing.
September 26, 2001, transcript, page 73-74.
The applicant's attorney then wrote to ALJ Krueger, reporting that he had reviewed the videotape and stating
I request that you hold the videotape(s) submitted at the September 26, 2001 hearing as evidence, however, I suggest that the review include instead the tape submitted to me at your direction.
Szabrowicz letter to Krueger dated October 16, 2001. The ALJ, then, on October 22, 2001, issued his decision in favor of the respondent, based largely on the activities shown in the videotapes.
The applicant appealed to the commission. Regarding the admission of Dr. Clark's second report of August 28, 2000 and the videotapes, he argued:
See applicant's January 7, 2002 brief to the commission, page 10.
The commission affirmed the ALJ's decision by order dated May 7, 2002. However, the commission's order did not specifically address the applicant's arguments regarding Dr. Clark's second report and the videotapes.
The applicant appealed the commission's decision to Milwaukee County Circuit Court, raising the same evidentiary concerns as he had to the commission, and noting that the commission did not comment on them in its decision. The circuit court, concerned about the lack of an express finding on those issues, remanded the case back to the commission. The court has directed the commission to address those arguments now, making appropriate factual and legal findings.
In essence, the circuit court desires the commission to address three questions. The three questions are:
1. Whether the tapes were evidence which the applicant had a right to request under Wis. Stat. § 102.13(2)(a) by virtue of the fact that treating doctor Saini had them, and what effect that has.
2. The effect of the respondent's refusal to submit the tapes to the applicant prior to the end of hearing, as he could not have his medical experts examine them.
3. Whether Dr. Clark's second report was a "report of the examination," which the applicant should have received immediately under Wis. Stat. § 102.13(1)(a) and (b), and if so, the effect of the failure of the respondent to provide it immediately.
The court noted, too, that answering these questions will involve some factual
findings, such as whether Dr. Saini ever actually had the videotapes, and whether
the applicant asked Dr. Saini for them.
2. Discussion.
a. Generally.
In complying with the directive of the court, the commission observes that discovery in workers compensation cases is governed by various provisions in Wis. Stat., ch. 102 (notably in Wis. Stat. § § 102.13 and 102.17), rather than the rules of civil procedure. See: Premeau v. Nite Cap Inn, WC claim no. 1997010996 (LIRC, June 30, 1999), aff'd sub nom. Premeau v. LIRC, No. 00-0266 (Wis. Ct. App. Jan. 11, 2001). See also: Garth v. American Star Ins. Co. 166 Wis. 2d 1000, 1011-12 (Ct. App. 1992) as to the inapplicability of the rules of civil procedure in worker's compensation cases generally when a separate statutory procedure is provided. It has been noted, however, that the lack of an opportunity to conduct discovery in worker's compensation cases may deprive a party of his constitutional right to a fair hearing, by denying a party's rights to seasonably know the claim against it and to meet the claim with competent evidence. Towers, Prehearing Discovery under Wisconsin's Worker's Compensation Act: A Review and Critique, 86 Marq. L. Rev. 597, 611-12 (1984-85), discussing Bituminous Casualty Co. v. ILHR Department, 97 Wis. 2d 730, 734-35 (Ct. App. 1980).
The commission also observes that Wis. Stat. § 102.13 does not expressly
provide for excluding anything -- practitioner reports from the expert retained by
the insurer or employer, videotapes, or medical records -- as a sanction for
noncompliance. On its face, the provisions of Wis. Stat. § 102.13(1)(b) and
(2) are about disclosure, not exclusion. Administrative agency action is generally
limited by the statutes that the agency administers, so the commission is careful
about fashioning remedies for violation of a statute when the statute at issue does
not provide a remedy. (2) Finally,
while Wis. Stat. § 102.17(1)(b) provides that an ALJ may issue an order
excluding evidence or testimony relating to information not disclosed as required
by a prehearing disclosure order, the ALJ has never issued a prehearing disclosure
order here.
b. The videotapes as information discoverable when in possession of physicians under Wis. Stat. § 102.13(2)(a)
Turning more directly to the questions discussed in the court's remand order, the commission is persuaded that the surveillance videotapes in this case are "information ... reasonably related" to the applicant's injury within the meaning of Wis. Stat. § 102.13(2)(a). (3) Consequently, Dr. Saini (or for that matter, Dr. Clark) would have had to have provided copies of the videotapes to the applicant had he asked for them.
However, Wis. Stat. § 102.13(2)(a) does not require the respondent to tell the applicant to whom it has provided information such as videotapes. The information establishing that the insurer had provided the tapes to Dr. Saini did not come out until the February 12, 2001 hearing. Thus, even if the applicant had learned about the existence of the videotapes earlier, he still would not have known Dr. Saini had the tapes until February 12, 2001.
At that point, the applicant could have demanded Dr. Saini turn over the videotapes, if they were still in his possession. However, the applicant did not make that demand. In other words, while the applicant had the right to demand Dr. Saini provide copies of the videotapes to him under Wis. Stat. § 102.13(2)(a), he did not exercise that right when he had the opportunity.
As explained below, the respondent should have immediately disclosed Dr. Clark's second report to the applicant. That disclosure would have informed the applicant in August 2000 that Dr. Clark had the videotapes and enabled him to request them from Dr. Clark. However, the applicant did not avail himself of his right to request the videotapes from Dr. Clark, even after learning at the first hearing that Dr. Clark, like Dr. Saini, had (or had had) the videotapes. Had the applicant shown that he demanded the videotape from Dr. Clark at that point, but could not obtain it because of the passage of time, the applicant might have been able to show he was prejudiced in his attempt to obtain the tapes by the respondent's failure immediately to disclose Dr. Clark's second report. However, that showing has not been made in this case.
In sum, the commission concludes that, under the facts of this case, the applicant's right to obtain the videotapes from Dr. Saini or Dr. Clark under Wis. Stat. § 102.13(2)(a) has not been prejudiced by the respondent's actions. The commission declines to exclude either the videotapes or Dr. Clark's second report based on the videotapes on this basis.
c. Fairness and prehearing disclosure of surveillance videotapes.
The court's second question raises the issue of fairness of the respondent's refusal to release the tapes generally prior to the third hearing. No statute specifically requires advance disclosure of the videotapes. However, fairness requires that where an employer or insurer refuses to disclose its videotape surveillance in advance of the hearing, an injured worker be given the chance to provide a countering medical report or other responsive testimony or evidence which may necessarily require leaving the record open or continuing the hearing. Beyond that, the commission must conclude that the circuit court's remand order implicitly indicates its desire that, at a minimum, the applicant be given the chance to have his medical expert respond to the videotapes.
Following the lead of the court in Bituminous Cas. Co., then, commission shall set
aside its prior order, and allow the applicant the opportunity to have his medical
expert address both the activity shown in the videotapes and Dr. Clark's second
report. On this point, the commission notes that ALJ Krueger's April 24, 2001
letter suggested he might allow additional time to the applicant to have his doctor
review the tapes and provide additional expert opinion, while the ALJ's order
holding the record open at the third day of hearing suggested a more restricted
review by the applicant to verify the videotapes' accuracy. However, the
commission declines to exclude the videotapes (or Dr. Clark's second report based
on the tapes) on the basis of fairness.
d. Immediate disclosure of Dr. Clark's second report under Wis. Stat. § 102.13(1)(b).
The last question is whether Wis. Stat. § 102.13(1) (4) required the respondent to provide to the applicant immediately a copy of Dr. Clark's second report, dated August 28, 2000, and, if so, the effect of its failure to do so. Wisconsin Stat. § 102.13(1)(a) requires injured workers to submit to reasonable examinations by medical experts, like Dr. Clark in this case, who are retained by insurers or employers. Wisconsin Stat. § 102.13(1)(b) provides that such a worker is entitled to receive, immediately upon receipt by the employer or insurer, a copy of "all reports of the examination" that are prepared by the medical expert.
The commission concludes that Dr. Clark's second report of August 28, 2000 was a "report of the examination" required to be provided to the applicant immediately under Wis. Stat. § 102.13(1)(b). The second report identifies itself as a "supplemental report", and specifically amends an opinion stated in Dr. Clark's initial report of May 25, 2000. It was offered, evidently, to support Dr. Clark's initial expert medical opinion expressed on May 25, 2000.
The commission cannot conclude that an injured worker's right to receive all reports of the examination under Wis. Stat. § 102.13(1)(b) is limited to the first report, or only the report containing the actual findings of the insurer's medical expert on physical examination of the applicant. The statute itself uses the term "all reports of the examination that are prepared by the examining physician" suggesting a relatively broad interpretation. Further, of course, medical experts retained by insurers frequently supplement their reports after their initial physical examination upon acquiring additional treatment notes or scanning images. The intent of Wis. Stat. § 102.13(1)(b) would be frustrated if an insurer's doctor, whether intentionally or innocently, could prevent the applicant from seeing his report immediately by bifurcating his report of the examination.
However, the commission declines to go further and order that Dr. Clark's second
report be excluded from the record on this basis. As explained above, neither Wis.
Stat. § § 102.13(1)(b) nor 102.17(1)(b) expressly allow exclusion in this
case. Further, since Dr. Clark's second report was provided to the applicant before
the conclusion of the hearing, he had ample time to obtain a countering report
from his own expert. Finally, as outlined above, the commission's order shall
allow the applicant an opportunity to have his medical expert address not only the
activity shown on the videotapes but also Dr. Clark's second report itself, curing
any prejudice by the insurer's failure to disclose the report immediately.
3. Conclusion.
Accordingly, the commission shall set aside its order in this case dated May 7, 2002, and ALJ Krueger's order dated October 22, 2001, and remand the matter to the department. Within 60 days from the date of this order, the applicant shall obtain and provide to the department and opposing counsel a report from its own medical expert addressing the activity shown in the videotapes and its effect on the applicant's claim. The report may also address Dr. Clark's August 28, 2000 report. ALJ Krueger shall then issue another decision based on the report from the applicant's medical expert, the record from the first hearing (relying on the "corrected videotape" submitted to the applicant's attorney rather than exhibits 11 and 12), and the record from any further hearing if necessary.
If the applicant does not furnish a report to the respondent within 60 days, the respondent may ask the commission to reinstate its order dated May 7, 2002.
NOW, THEREFORE, the Labor and Industry Review Commission makes this
The order of the commission dated May 7, 2002, and the order of the ALJ dated October 22, 2001, are set aside. The matter is remanded to the department for further action as provided for above.
Dated and mailed October 16, 2003
klattja . wpr : 101 : 1 ND § 8.12 § 8.14
/s/ David B. Falstad, Chairman
/s/ James T. Flynn, Commissioner
/s/ Robert Glaser, Commissioner
cc:
Attorney Scott A. Szabrowicz
Attorney John S. Minix
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(1)( Back ) Any problem with the fifteen-day rule under Wis. Stat. 102.17(1)(d) is cured by the facts that there was a second day of hearing on April 30, 2001, and that the respondent did not actually get to put on its case until the third day of hearing in September 2001. Clark's second report was submitted to the applicant well in advance of these days of hearings.
(2)( Back ) The commission has previously noted:
...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. [Footnote omitted]
Gebhardt v. Anna Bart Ltd, WC claim no. Claim No. 2001-003911 (LIRC, December 21, 2001).
(3)( Back ) 102.13(2) (a) An employee who reports an injury alleged to be work-related or files an application for hearing waives any physician-patient, psychologist-patient or chiropractor-patient privilege with respect to any condition or complaint reasonably related to the condition for which the employee claims compensation. Notwithstanding ss. 51.30 and 146.82 and any other law, any physician, chiropractor, psychologist, dentist, podiatrist, hospital or health care provider shall, within a reasonable time after written request by the employee, employer, worker's compensation insurer or department or its representative, provide that person with any information or written material reasonably related to any injury for which the employee claims compensation.
(4)( Back ) 102.13 Examination; competent witnesses; exclusion of evidence; autopsy. (1) (a) Except as provided in sub. (4), whenever compensation is claimed by an employee, the employee shall, upon the written request of the employee's employer or worker's compensation insurer, submit to reasonable examinations by physicians, chiropractors, psychologists, dentists or podiatrists provided and paid for by the employer or insurer..,
(b) An employer or insurer who requests that an employee submit to reasonable examination under par. (a) or (am) shall tender to the employee, before the examination, all necessary expenses including transportation expenses. The employee is entitled to have a physician, chiropractor, psychologist, dentist or podiatrist provided by himself or herself present at the examination and to receive a copy of all reports of the examination that are prepared by the examining physician, chiropractor, psychologist, podiatrist, dentist or vocational expert immediately upon receipt of those reports by the employer or worker's compensation insurer....
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