Wisconsin Court of Appeals hold Expert Medical Opinion from Unlicensed Doctor Admissible at Trial

Under Wisconsin law, a WKC-16-B certified practitioner’s report is admissible at trial as evidence of the diagnosis, necessity of the treatment, and cause and extent of the disability so long as the practitioner consents to and is available for cross examination . On November 8, 2017, the Court of Appeals (First District)  held that a WKC-16-B 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. American Family Mutual Insurance Company and Preferred Metal Products v. Robert Haas and LIRC, ( Appeal No. 2017AP59).

Robert Haas was injured at work on March 1, 2001. This accident was accepted as compensable, as was an initial surgery. On January 26, 2015, the ALJ held a hearing regarding the nature and extent of Haas’ injury. In dispute was liability for three e subsequent surgeries that were performed by Dr. Cully White in 2011. Dr. White completed a WKC-16-B on both May 4, 2011, and October 3, 2013. In each WKC-16-B, Dr. White related the need for  the three disputed surgeries to the work injury.  At trial, the employer objected to the admission of Dr. White’s WKC-16-B forms, arguing that they were inadmissible because Dr. White was no longer licensed to practice medicine (Dr. White voluntary surrendered his license to practice medicine in December 2013).   The administrative law judge 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 the employer. The employer  appealed. LIRC upheld the decision of the administrative law judge, and the circuit court upheld the decision of LIRC.

The Court of Appeals affirmed the judgement of the LIRC, noting that Wisconsin law requires only that the doctor certifying the WKC-16-B consents to being subjected to cross-examination. It noted that the employer did not subpoena nor seek to cross-examine White, and  that there was no dispute that at the time White filed the 16-B reports, he was both licensed and practicing medicine. The Court found that the relevant time frame for matters contained in the 16-B reports is when  they were written, and that there was no evidence in the records that Dr. White did not consent to being cross examined or that he was unavailable at trial.  The Court did acknowledge that the lack of licensure and cause for same might be relevant to an opinion set forth in a WKC-16-B, but that this factgoes to weight, not admissibility.

In view of this decision, counsel for respondent would be well advised to assess the credentials and licensure status of a practitioner certifying a WKC-16-B well in advance of trial. For while lack of a license at the time of trial will not impact the admissibility of the WKC-16-B, the certifying doctor should be subpoenaed  so that he/she can be cross examined as to the cause for lack of a license in order to impact the weight of any opinion rendered.

Thanks to Partner Scott McCain for bringing this case to our attention.  Scott works out of the Chicago and Milwaukee offices of Inman and Fitzgibbons.  If you have any questions about workers’ compensation claims in Wisconsin , please feel free to reach out to Scott.


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