During the workers comp claim process, if the denied claim was based on the independent or defense medical examination, Wis. Stats. Sec. 102.13(1)(a), the applicant attorney is entitled to copies of documents provided to the IME.

Medical Bills

To include outstanding or previously paid medical bills in the hearing, the bills must be filed with the WKC-3 at least 15 days before the hearing. Wis. Stats. Sec. 102.17(8). One may include subrogation lien documentation with the WKC-3 as well.

Hearing Procedure

At the beginning the exhibits will be review, marked and admissibility addressed. Then the judge will narrow the issues off and on the record. Every judge is different, but generally the hearing process is less formal than a civil or criminal trial and the rules of evidence do not strictly apply. Goranson v. DILHR, 94 Wis. 2d 537, 289 N.W. 2d 270 (1980). However, given the eventuality of a LIRC appeal in any success applicant case, cases should be prepared and presented with the rules of evidence in mind. In complicated cases, it may be wise to request a four-hour block of time. Similarly, applicant attorneys should insist on the hearing starting as soon as the judge is ready as time is short and a continued hearing is usually not in the applicant’s interest.

Due process requires that the respondent insurer and employer have notice of and an opportunity to be heard on the claims raised. For example, unless an occupational injury claim is brought in the hearing application or an amended application (which can be by letter but not COR), it cannot be raised for the first time at hearing. See Waste Management, Inc. v. LIRC, 2008 WI App 50, 308 Wis. 2d 763 (Ct. App. 2008). A request for a continued hearing or dismissal without prejudice can be made.

Certified hospital records (and probably office and clinic records) also need to filed within 15 days of hearing. Wis. Stats. Sec. 102.17(1)(d)3. If any records contain physician opinions to be relied upon for causation or extent of disability, they must be filed within the 15 days. Medical opinions must be expressed to a reasonable degree of medical probability, which in Wisconsin means something is likely or probable, but not possible or might be. See Shymanski v. Indus. Comm., 274 Wis. 307, 79 N.W. 2d 640 (1956) and Unruh v. Indus. Comm. 8 Wis. 2d 394, 99 N.W. 2d 182 (1959). The doctor need not explicitly say “my opinion is” but phrasing an opinion as “I feel” or “I believe” is sufficient.

For questions about the workers comp claim process, call McCormick Law Office in Milwaukee, Wisconsin.