CHARLES R BOOTZ, Applicant

HARNISCHFEGER CORPORATION, Employer

HARNISCHFEGER CORPORATION, Insurer

The applicant submitted a petition for commission review alleging error in the administrative law judge's Findings and Order issued in this matter on March 4, 2004. The self-insured employer submitted an answer to the petition and briefs were submitted by the parties. The preliminary issue is whether the administrative law judge denied the applicant due process or committed an abuse of discretion by cutting off applicant's counsel's cross-examination of the employer's medical witness. The primary issues are whether the applicant sustained a compensable injury, and if so, what are the nature and extent of disability and liability for medical expense.

The commission has carefully reviewed the entire record in this matter and hereby sets aside the administrative law judge's Findings and Order. The commission remands the matter to the department for the taking of additional evidence, based upon the following:

On June 3, 2003, the applicant submitted a claim for an occupational injury to his left elbow based on his 23 years of employment with the employer. The employer denied the claim but did not obtain a medical opinion until Dr. David Drury examined the applicant on February 25, 2004. A hearing in the matter was scheduled for March 1, 2004. Dr. Drury opined that the elbow problem was due to a congenital disease process unaffected by the applicant's work, contrary to the opinion of the applicant's physician. A written opinion from Dr. Drury was not presented to applicant's counsel until the morning of the scheduled hearing on March 1, 2004.

The hearing was held and Dr. Drury was a witness along with the applicant. At the hearing, applicant's counsel asked the ALJ to keep the record open so that he could go over Dr. Drury's 20-page report and also look at the numerous treatises Dr. Drury had cited in his report. The ALJ refused and told counsel at approximately 3:25 PM that he could begin cross-examination of Dr. Drury, but the hearing would end at 4 PM. The ALJ cut off counsel's cross-examination at approximately 4 PM, and allowed a short redirect before closing the hearing. The day after the hearing, applicant's counsel wrote to the ALJ and formally requested a continued hearing to finish his cross-examination of Dr. Drury. The ALJ ignored this request and on March 4, 2004, issued an order accepting Dr. Drury's opinion and dismissing the applicant's claim.

The employer's submission of Dr. Drury's report on the day of the hearing did not amount to a technical violation of the administrative process, because Dr. Drury was available for cross-examination (see Wis. Admin. Code § DWD 80.22(2)). However, such action pushed the boundaries of fair play, and as a result the administrative law judge should have made certain that applicant's counsel was given full opportunity to cross-examine Dr. Drury. Such opportunity was not given when the ALJ arbitrarily stated at the beginning of the cross-examination that he was limiting it to a period of 37 minutes. Approximately 37 minutes later, the ALJ cut off the cross-examination and never gave a reasonable explanation for doing so. He also ignored applicant's counsel's written request for a continued hearing. The ALJ's actions constituted a violation of the applicant's due process right to be heard by counsel upon the probative force of the evidence adduced (see Nelson Mill and Agri-Center, Inc. v. ILHR Department, 67 Wis. 2d 90, 96, 226 N.W.2d 435 (1975)). The ALJ's actions also constituted an abuse of administrative discretion, because he failed to follow due process guidelines, and failed to give a reasonable explanation to applicant's counsel for his actions. The ALJ did state at the close of the hearing:

"In administrative law, we just have to do the best we can with the resources that the system allows us. I think I've had enough to make a fair review of the evidence and testimony, so I'm going to close."

The department is not so bereft of resources that it cannot provide fair opportunity for cross-examination of one party's primary medical witness in a worker's compensation hearing. If for some practical reason the ALJ could not have continued the hearing past its 4:10 PM ending time, the circumstances of this case demanded that a continued hearing be granted.

Now, therefore, this:

The Findings and Order of the administrative law judge are set aside. The matter is remanded to the department for opportunity for new hearing for the purpose of completing the cross-examination of Dr. Drury. Redirect examination of Dr. Drury shall also be allowed, as shall submission of any additional evidence the parties may wish to present. Thereafter, the matter shall be returned to the commission for review and decision.

Dated and mailed January 14, 2005
bootzch : 185 : 4   ND § 8.19  § 8.22

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

cc:
Attorney Daniel R Schoshinski
Attorney Karl A Vandehey

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