Opinion
No. 278.
Submitted under sec. (Rule) 251.54 February 5, 1975. —
Decided March 4, 1975.
APPEAL from a judgment of the circuit court for Dane county: GEORGE R. CURRIE, Reserve Circuit Judge, Presiding. Affirmed.
For the appellants the cause was submitted on the briefs of Axley, Brynelson, Herrick Gehl of Madison; and for the respondents the cause was submitted on the joint brief of Robert W. Warren, attorney general, and Gordon Samuelsen, assistant attorney general, for the Department of Industry, Labor Human Relations, and by W. A. Kirkpatrick and Hale, Skemp, Hanson, Schnurrer Skemp, all of LaCrosse, for Ralph A. Torgerson.
Facts.
In this action Nelson Mill Agri-Center, Inc., and its insurer, United States Fidelity Guaranty Insurance Company, plaintiffs-appellants, appeal from a circuit court judgment affirming an order of the Department of Industry, Labor Human Relations which, in turn, affirmed an examiner's award of workmen's compensation benefits to Ralph A. Torgerson, defendant-respondent.
On October 22, 1971, defendant filed for workmen's compensation benefits. In his petition the defendant alleged he injured his back on June 22, 1971, when he jumped from a loading dock to the ground while working for plaintiff Nelson Mill Agri-Center, Inc., his employer. Plaintiff insurer paid temporary total disability benefits for the period from June 23, 1971, to August 19, 1971, then terminating such benefits on the ground that plaintiffs had received information which contradicted defendant's claim that he had had no trouble with his back prior to the incident at work. (Medical reports of the Gunderson Clinic reported defendant's earlier treatment for "low back pain off and on for years.")
In response to defendant's claim for workmen's compensation benefits, the plaintiffs denied liability. On July 3, 1972, the department mailed notices setting a hearing date for August 2, 1972. During a discussion defendant's counsel informed plaintiffs' counsel that defendant's treating physician had made no determination of permanent disability, and that it was likely the first hearing would be limited to taking the testimony of the defendant. In a subsequent telephone conversation defendant's counsel advised that he had been unable to contact the attending physician and that there would have to be a further hearing for presentation of all medical testimony. Pursuant to that conversation defendant's attorney wrote plaintiffs' attorney stating that he did not anticipate going forward with the entire case at the scheduled hearing.
At the hearing defendant's physician testified as to defendant's temporary total disability, stating that he could not make a determination of permanent injury for about two years. Following the taking of the doctor's testimony, plaintiffs' attorney requested an opportunity be given for further independent medical examination of the defendant by the plaintiffs. The request was denied. Defendant's counsel stated that he had no objection to further medical examination, but only on the question of permanent disability. The examiner concluded the hearing, denying the request for an independent medical examination and for a further hearing. The examiner entered an interlocutory order for temporary total disability, reserving jurisdiction to subsequently evaluate permanent disability.
On November 7, 1972, the department entered an order affirming the interlocutory order of the examiner. On November 15, 1972, plaintiffs instituted this action in the circuit court for Dane county to have the order of the department set aside. The circuit court found that plaintiffs' attorney believed in good faith that he had an agreement with defendant's attorney that evidence on the issue of liability would be reserved for a subsequent hearing, but held that the denial of plaintiffs' request for a further hearing did not constitute a violation of the fair hearing requirement (sec. 102.18(1) (a), Stats.) or a flagrant abuse of discretion under the notice of hearing mailed to the parties by the department. Judgment affirming the department order was entered on May 29, 1973, and plaintiffs appeal.
The issue presented here is whether, under the circumstances of this case, the appellant employer and its insurer were denied a full and fair hearing after reasonable notice. The state's Workmen's Compensation Act provides: "All parties shall be afforded opportunity for full, fair, public hearing after reasonable notice . . . ." (Sec. 102.18(1) (a), Stats.) The act further provides: "Either party shall have the right to be present at any hearing, in person or by attorney, or any other agent, and to present such testimony as may be pertinent to the controversy before the department . . . ." (Sec. 102.17(1) (am).) The same section of the same statute provides that such hearing ". . . may be adjourned in the discretion of the department, . . ." (sec. 102.17(1) (a)) and this court has recently held that the department's refusal to adjourn a hearing is a matter ". . . committed to agency discretion, and the scope of judicial review is thus narrow." ( Theodore Fleisner, Inc. v. ILHR Department (1974), 65 Wis.2d 317, 326, 222 N.W.2d 600. )
To permit a reviewing court to determine that the department, in refusing to recess or reopen a hearing, acted in excess of its powers, this court has held that ". . . it would need be a flagrant abuse of discretion . . . ." ( Moore v. Industrial Comm. (1958), 4 Wis.2d 208, 218, 89 N.W.2d 788.) In Moore, this court found such flagrant abuse of discretion where the department failed to rule on a petition to reopen a hearing because of crucial new evidence discovered between the, time of the hearing examiner's decision and review by the department. ( Id. at page 218.) However, with newly discovered evidence the basis for the petition to reopen, the Moore holding did not involve or revolve upon the requirements of the advance notice sent by the department to all parties to the proceeding in advance of the hearing. In the case before us, that notice provided:
"NOTE: Immediately upon receipt of this. notice, necessary witnesses should be informed and definite arrangements made for their attendance. If you are not prepared or entirely certain that you can fully proceed, notify us immediately; otherwise hearing must proceed to conclusion as scheduled.
"Continuances will be granted only upon consent of the department. They are not granted for the convenience of the parties or by agreement of the parties. Parties seeking payment of medical and hospital bills must obtain and bring itemized bills to hearing."
Such notice here clearly and unequivocally notified the parties involved that, unless the department was notified in advance of inability to produce necessary witnesses, the hearing "must proceed to conclusion as scheduled." It informed the parties the continuances will be granted "only upon consent of the department," and, more particularly, that such continuances were not granted "for the convenience of the parties or by agreement of the parties." We cannot hold such limitations on the right to seek and secure continuances to be unreasonable where advance notice as to them is given. They serve what this court has termed an evident purpose of the Workmen's Compensation Act, to wit: ". . . to provide for a speedy disposition . . . and to prevent, as far as possible, delays that might arise from protracted litigation. . . ." ( Gough v. Industrial Comm. (1917), 165 Wis. 632, 635, 162 N.W. 434.) As this court has said, "`. . . the legislature, in passing the workmen's compensation act, in the interest of speedy justice for the workingmen, sought to limit appeals and protracted litigation.'" ( R. T. Madden, Inc. v. ILHR Department (1969), 43 Wis.2d 528, 536, 169 N.W.2d 73, quoting the concurring opinion of Mr. Justice CROWNHART in McCarthy v. Sawyer-Goodman Co. (1927), 194 Wis. 198, 205, 215 N.W. 824.)
No flagrant abuse of discretion was found in Fleisner where the department examiner refused to grant an adjournment of hearing to permit introduction of the direct testimony of two treating physicians. There this court gave, as one ground for refusing to reverse, the identical notice sent, there as here, to all parties prior to the hearing, and stated: ". . . Plaintiffs never notified the department they were not fully ready to proceed, despite knowing that they had not received all the medical reports. Plaintiffs requested a continuance for the first time during the hearing." ( Theodore Fleisner, Inc. v. ILHR Department, supra, at page 330.) As to failure to give notice in advance of the hearing, or unreadiness to proceed, and as to requesting a continuance for the first time during the hearing, the plaintiffs in the case before us are in the same status and position as were the plaintiffs in Fleisner. With the order of the hearing examiner being an interlocutory order, dealing with temporary disability up to the date of the hearing, and jurisdiction reserved as to the issue on permanent disability, we cannot find here a flagrant abuse of discretion in such examiner's denial of plaintiffs' request for a continuance. The three elements of a fair hearing in workmen's compensation proceedings are: "`. . . (1) The right to seasonably know the charges or claims proffered; (2) the right to meet such charges or claims by competent evidence; and (3) the right to be heard by counsel upon the probative force of the evidence adduced by both sides and upon the law applicable thereto.'" ( Id. at page 326, quoting State ex rel. Richey v. Neenah Police Fire Comm. (1970), 48 Wis.2d 575, 580, 180 N.W.2d 743.) In view of the department notice informing the parties that, in the absence of notification by a party that it is unready or unable to fully proceed, the scheduled hearing "must proceed to conclusion as scheduled," we agree with the circuit court holding that no flagrant abuse of discretion was involved in the hearing examiner's denial of plaintiffs' mid-hearing request for a continuance.
By the Court. — Judgment affirmed.