American Family Mutual Insurance Company and Preferred Metal Products, Plaintiffs-Appellants,
Robert Haas and Labor and Industry Review Commission, Defendants-Respondents.
from an order of the circuit court for Milwaukee County Cir.
Ct. No. 2016CV3494: DENNIS P. MORONEY, Judge. Affirmed.
Neubauer, C.J., Reilly, P.J., and Gundrum, J.
In this worker's compensation case, American Family
Mutual Insurance Company and Preferred Metal Products
(hereinafter, American Family) challenge the admissibility of
Dr. Cully White's WKC-16-B (16-B) certified
practitioner's report filed pursuant to WIS. STAT. §
102.17(1)(d)l. (2015-16) and WIS. Admin. Code § DWD 80.22
(Sept. 2017). American Family argues that while White was
licensed to practice medicine at the time he filed his
report, he was not so licensed when the hearing took place,
and, therefore, his report was not admissible. We find that
the plain language of § 102.17(1)(d)l. and DWD 80.22
clearly and unequivocally make the report admissible.
American Family's argument goes to the weight of
White's opinion, not its admissibility. We affirm.
Robert Haas received a work injury on March 1, 2001, which
required surgery. Haas' worker's compensation
benefits were not contested. The current dispute involves
three subsequent surgeries that were performed on Haas by
White in 2011. White completed form 16-B, the certified
practitioner's report on accident or industrial disease,
on both May 4, 2011, and October 3, 2013. In the reports,
White opined that each of the three surgeries he performed on
Haas were necessitated due to the "failure of prior
surgery and injury" that was "deemed work related
by a prior decision of the worker's compensation
division." In November 2013, White's ability to
practice medicine was limited by order of the State of
Wisconsin Medical Examining Board (MEB), and on December 17,
2013, the MEB accepted the voluntary surrender of White's
license to practice medicine and surgery in
On January 26, 2015, the ALJ held a hearing regarding the
nature and extent of Haas' injury. American Family
objected to the admission of White's reports, arguing
that the reports were inadmissible as White was no longer
licensed to practice medicine. American Family did not
subpoena White to testify at the hearing. The ALJ overruled
the objection and allowed White's 16-B reports into
evidence and found White's opinion more credible than the
expert's written report filed by American Family.
American Family appealed. LIRC upheld the decision of the
ALJ, the circuit court upheld the decision of LIRC, and we
now affirm the decision of LIRC.
Whether White's 16-B reports were admissible under the
Worker's Compensation Act requires our interpretation of
WIS. STAT. § 102.17(1)(d)l. and WIS. Admin. Code §
DWD 80.22. We review the application of a statute and an
administrative rule to undisputed facts de novo.
Wisconsin Dep't of Revenue v. Menasha Corp.,
2008 WI 88, ¶44, 311 Wis.2d 579, 754 N.W.2d 95. We
review LIRC's decision, not the circuit court's.
Milwaukee Cty. v. LIRC, 2014 WI.App. 55, ¶13,
354 Wis.2d 162, 847 N.W.2d 874.
Three levels of deference exist as to an administrative
agency's interpretation of a statute: great weight, due
weight, and de novo review. Racine Harley-Davidson, Inc.
v. State Div. of Hearings & Appeals, 2006 WI 86,
¶12, 292 Wis.2d 549, 717 N.W.2d 184; see also
Milwaukee Cty. v. LIRC, 354 Wis.2d 162,
¶¶14-16 (citation omitted). "An administrative
agency's interpretation of its own rules or regulations
is controlling unless 'plainly erroneous or inconsistent
with the regulations.'" DaimlerChrysler v.
LIRC, 2007 WI 15, ¶11, 299 Wis.2d 1, 727 N.W.2d 311
(citation omitted). "If [LIRC's] interpretation is
reasonable, it is entitled to controlling weight even if an
alternative interpretation is just as reasonable or even more
reasonable." Madison Gas & Elec. v. LIRC,
2011 WI.App. 110, ¶8, 336 Wis.2d 197, 802 N.W.2d 502
(citing Menasha Corp., 311 Wis.2d 579, ¶54).
We need not reach the issue of what level of deference we
must afford LIRC's decision as we conclude that no matter
what level of deference we apply, we reach the same
conclusion as LIRC. Both WIS. Stat. § 102.17(1)(d)l. and
WIS. Admin. Code § DWD 80.22 are clear that a 16-B
report is admissible if it is certified by a doctor licensed
in the State of Wisconsin, regardless of the doctor's
status at the time of the hearing.
WISCONSIN Stat. § 102.17(1)(d)l. states, in pertinent
The contents of certified medical and surgical reports by
physicians ... licensed in and practicing in this state ...
presented by a party for compensation constitute prima
facie evidence as to the matter contained in those
reports, subject to any rules and limitations the
division prescribes. Certified reports of physicians ... if
the practitioner or expert consents to being subjected to
cross-examination, also constitute prima facie evidence
as to the matter contained in those reports. Certified
reports of physicians ... are admissible as evidence of the
diagnosis, necessity of the treatment, and cause and extent
of the disability. (Emphasis added.)
WISCONSIN ADMIN. CODE § DWD 80.22 provides, in pertinent
part: "(2) Use of reports shall be permitted in any case
in which claim for compensation is made, provided the