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American Family Mutual Insurance Co. v. Haas

Court of Appeals of Wisconsin, District I

November 8, 2017

American Family Mutual Insurance Company and Preferred Metal Products, Plaintiffs-Appellants,
v.
Robert Haas and Labor and Industry Review Commission, Defendants-Respondents.

         APPEAL from an order of the circuit court for Milwaukee County Cir. Ct. No. 2016CV3494: DENNIS P. MORONEY, Judge. Affirmed.

          Before Neubauer, C.J., Reilly, P.J., and Gundrum, J.

          REILLY, P.J.

         ¶1 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)[1] 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.

         BACKGROUND

         ¶2 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.[2] 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 Wisconsin.[3]

         ¶3 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.

         DISCUSSION

         ¶4 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.

         ¶5 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.'"[4] 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).

         ¶6 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.[5] 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.

         ¶7 WISCONSIN Stat. § 102.17(1)(d)l. states, in pertinent part:

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 ยง 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 reporting ...


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