{ "id": 1472379, "name": "HYDRAULICS, INC., Appellee, v. THE INDUSTRIAL COMMISSION et al. (Lynn Anderson, Appellant)", "name_abbreviation": "Hydraulics, Inc. v. Industrial Commission", "decision_date": "2002-03-22", "docket_number": "No. 2\u201400\u20141186WC", "first_page": "166", "last_page": "173", "citations": [ { "type": "official", "cite": "329 Ill. App. 3d 166" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "689 N.E.2d 1057", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 1997, "pin_cites": [ { "page": "1100" }, { "page": "1100" }, { "page": "1100" } ], "opinion_index": 0 }, { "cite": "179 Ill. 2d 367", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 801349 ], "weight": 4, "year": 1997, "pin_cites": [ { "page": "485" }, { "page": "458" }, { "page": "458" }, { "page": "458" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/179/0367-01" ] }, { "cite": "499 N.E.2d 952", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 4, "year": 1986, "pin_cites": [ { "page": "961" } ], "opinion_index": 0 }, { "cite": "148 Ill. App. 3d 581", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3642305 ], "weight": 5, "year": 1986, "pin_cites": [ { "page": "594-95" }, { "page": "591, 596" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/148/0581-01" ] }, { "cite": "478 N.E.2d 498", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1985, "pin_cites": [ { "page": "499" } ], "opinion_index": 1 }, { "cite": "132 Ill. App. 3d 891", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3440467 ], "year": 1985, "pin_cites": [ { "page": "893" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/132/0891-01" ] }, { "cite": "606 N.E.2d 236", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1992, "pin_cites": [ { "page": "238" } ], "opinion_index": 1 }, { "cite": "238 Ill. App. 3d 202", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5156552 ], "year": 1992, "pin_cites": [ { "page": "205" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/238/0202-01" ] }, { "cite": "30 N.E.2d 615", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1940, "pin_cites": [ { "page": "618" } ], "opinion_index": 1 }, { "cite": "375 Ill. 107", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2536192 ], "year": 1940, "pin_cites": [ { "page": "113" } ], "opinion_index": 1, "case_paths": [ "/ill/375/0107-01" ] }, { "cite": "689 N.E.2d 1057", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1997, "pin_cites": [ { "page": "1098" }, { "page": "1099-1100" } ], "opinion_index": 1 }, { "cite": "179 Ill. 2d 367", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 801349 ], "weight": 2, "year": 1997, "pin_cites": [ { "page": "453" }, { "page": "457" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/179/0367-01" ] } ], "analysis": { "cardinality": 821, "char_count": 16676, "ocr_confidence": 0.776, "pagerank": { "raw": 4.89950402824256e-08, "percentile": 0.3070213746052376 }, "sha256": "1f136949dea809c86ea30df94ee8a19301019aeb480a31f8df4d1a540d39d26e", "simhash": "1:813f91683d94d61c", "word_count": 2586 }, "last_updated": "2023-07-14T18:00:16.668960+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "HYDRAULICS, INC., Appellee, v. THE INDUSTRIAL COMMISSION et al. (Lynn Anderson, Appellant)." ], "opinions": [ { "text": "JUSTICE HOLDRIDGE\ndelivered the opinion of the court:\nThis case comes to us pursuant to the application for leave to appeal, pursuant to Supreme Court Rule 308 (155 Ill. 2d R. 308), filed by the claimant, Lynn Anderson. The circuit court of McHenry County, Illinois, certified the following question on which it found a substantial ground for a difference of opinion, and the court determined that an immediate appeal might materially advance the ultimate termination of the litigation.\nThe question identified by the trial court is as follows:\n\u201cWhether ex parte conferences between an injured worker\u2019s health care provider(s) and the employer or their legal representative(s) are, or should be prohibited by:\n1. Operation of the doctrine enunciated in Petrillo v. Syntex, 148 Ill. App. 3d 581, 499 N.E.2d 952 (1986), or\n2. The right to privacy found in the Illinois Constitution, or\n3. Section 8 \u2014 802 of the Illinois Rules of Evidence, or\n4. Administrative Rule 7110.70 et seq. of the Illinois Industrial Commission, or\n5. The common law physician-patient privilege, or\n6. The public policy against such communications described in Vernon Best v. Taylor Machine Works, 179 Ill. 2d 367, 485, 689 N.E.2d 1057, 1100 (1997).\u201d\nThis court granted claimant\u2019s application for leave to appeal. The following are the pertinent facts contained in the record. On November 17, 1997, Lynn Anderson (claimant) filed an application for adjustment of claim with the Illinois Industrial Commission (Commission) alleging an injury to her left wrist on September 30, 1997, resulting from repetitive trauma. On that date, she reported to her supervisor that her left wrist was \u201cburning.\u201d There had been no indication of prior wrist pain. Claimant\u2019s supervisor sent her to see Ms. Rhonda Pencak, the employer\u2019s \u201chealth service coordinator.\u201d Although Pencak appeared to be an employee of Hydraulics, Inc. (employer), she was actually an employee of Disability Management Services. Pencak provided on-site contract services at the employer\u2019s facility. Her duties included \u201ctaking care of injuries, handling workers compensation, etc.\u201d\nPencak sent claimant to the company\u2019s clinic, Occupational Health, where claimant treated with Dr. Jablonowski from October 1, 1997, through October 27, 1997. After each visit from claimant, Dr. Jab-lonowski sent Pencak a work qualification report (WQR) on claimant, each time stating that claimant\u2019s symptoms were work-related and that she needed light-duty restrictions. Based upon Dr. Jablonowski\u2019s recommendations, the employer provided claimant with light duty.\nOn November 3, 1997, Dr. Jablonowski referred claimant to Dr. Cox, who diagnosed a fracture of the left wrist. A copy of Dr. Cox\u2019s report was sent to Pencak. After receipt of Dr. Cox\u2019s report, Pencak immediately conferred with the employer\u2019s insurance carrier and counsel. At this conference, it was decided to deny claimant\u2019s claim. Thereafter, the employer refused to pay temporary total disability (TTD), authorize payment for medical services, or approve light duty.\nMeanwhile, Dr. Cox had referred claimant to Dr. Ruder, a hand surgeon. Dr. Ruder recorded claimant\u2019s history of hand injury and diagnosed her condition as a fracture of the left scaphoid (boat-shaped, navicular, hollowed bone of the carpus or the tarsus) with bone cysts. In his operative report of November 24, 1997, Dr. Ruder indicated that the fracture was work-related. On January 2, 1998, Dr. Ruder opined that claimant\u2019s wrist pain (pathology) was related to her work duties.\nOn November 6, 1997, Pencak placed a telephone call to Dr. Ruder. After this telephone conversation, Pencak decided to seek another medical opinion and sent claimant\u2019s medical records to Dr. Albert Mit-sos. Dr. Mitsos issued a report dated December 5, 1997, stating an opinion that claimant\u2019s injury was not work-related.\nThe matter went to hearing before an arbitrator on January 6, 1998. One day prior to a second hearing, on February 3, 1998, employer\u2019s new counsel sought a continuance, citing the need to take Dr. Ruder\u2019s deposition. (At no time did employer\u2019s counsel file a dedimus potestatem motion seeking to take Dr. Ruder\u2019s deposition, nor did they subpoena Dr. Ruder to testify before the arbitrator.) The continuance was granted.\nMeanwhile, Pencak and two attorneys for the employer shot videotape of claimant\u2019s work site and someone else doing the job. Although a job description existed for claimant, Pencak created a completely new job description. Although the videotape and the job description were created during litigation, neither was provided to claimant\u2019s attorney. Pencak then sent a letter to Dr. Ruder, along with a copy of the video, the new job description, and Dr. Mitsos\u2019 report indicating that claimant\u2019s injuries were not job-related. In that letter, Pencak advised Dr. Ruder of the employer\u2019s theory of defense and asked Dr. Ruder if the evidence provided changed his position as to causation. Following this communication, Dr. Ruder issued a \u201cclarified\u201d opinion, finding no causal connection between the claimant\u2019s injury and her work. This communication with Dr. Ruder had not been authorized by claimant.\nAt hearing, claimant objected to the introduction of any evidence resulting from the contact with Dr. Ruder. Claimant argued against admission of the videotape, the new job description, and Dr. Ruder\u2019s clarified opinion. The arbitrator agreed, finding that the employer violated Petrillo in communicating with Dr. Ruder without claimant\u2019s permission.\nOn review, the Commission ruled that Pencak violated Petrillo in communicating with Dr. Ruder. However, it vacated the arbitrator\u2019s decision and remanded the cause for a new hearing, holding that the arbitrator should have allowed the videotape and the job description. The Commission majority made the following observation:\n\u201cThis is not a case where the petitioner has refused to turn over medical records at the onset of the injury. Were that to occur, the Petitioner would not be entitled to benefits. The facts before the Commission concern a nurse for respondent having an ex parte communication with Petitioner\u2019s treating physician regarding his opinion on causality, and seemingly attempting to change the outcome of that opinion. To hold a workers\u2019 compensation claimant, by virtue of filing an Application for Adjustment of Claim, waives his or her physician-patient privilege flies in the face of the public policy announced by the Illinois Appellate Court in Petrillo, and more recently, the Illinois Supreme Court in Best.\u201d\nOn March 2, 1999, a hearing was held before the arbitrator pursuant to remand from the Commission. The arbitrator took Pencak\u2019s testimony wherein she admitted that she had not sought claimant\u2019s permission prior to communicating with Dr. Ruder. At this hearing, the arbitrator again excluded the new job description and Dr. Ruder\u2019s revised opinion, but admitted the videotape. After reviewing the new evidence, the arbitrator again adopted his original decision. Employer again sought review before the Commission.\nThe Commission again affirmed the arbitrator\u2019s decision, with Commissioner Stervenson dissenting, reasserting his previous dissent stating his position that Petrillo did not apply to workers\u2019 compensation claims.\nEmployer sought review in the circuit court of McHenry County. Originally, the trial court ruled, as a matter of law, that the prohibition against ex parte communications stated in Petrillo did not apply to workers\u2019 compensation claims. However, following a motion for reconsideration, the trial court certified the question to this court, which accepted certification.\nPetrillo v. Syntex Laboratories, Inc., 148 Ill. App. 3d 581, 499 N.E.2d 952 (1986), is the starting point for analysis of ex parte prohibitions. In a nutshell, Petrillo held that citizens of Illinois have a confidential and fiduciary relationship with their physicians. That confidentiality has a constitutional dimension that cannot be left at the door of the courthouse. The heart of the Petrillo doctrine is found in this lengthy excerpt:\n\u201c[W]e believe that the fiduciary relationship existing between the patient and physician requires, at the very minimum, that the patient have a right to rest assured that the physician will act in good faith while, at the same time, the physician complies with court-authorized discovery. Thus, when a patient files suit, the physician should be prepared to release those records relevant to the condition placed at issue, be available to give depositions, and be prepared to testify should he be called upon to do so. *** Discussion of the patient\u2019s confidences under any other circumstances, such as the ex parte conference, could be inconsistent with the duties of *** the physician ***. *** [T]he ex parte conference involves conduct which could be violative of the duties of a fiduciary and would, therefore, be contrary to public policy favoring the fiduciary nature of the physician-patient relationship.\u201d Petrillo, 148 Ill. App. 3d at 594-95, 499 N.E.2d at 961.\nIn addition, our supreme court in Best v. Taylor Machine Works, 179 Ill. 2d 367, 458, 689 N.E.2d 1057, 1100 (1997), expressed approval of the Petrillo rationale, stating, \u201cWe believe that the rationale of the Petrillo court is sound and that there is a strong public policy against ex parte [communications with health care providers].\u201d Best further found a constitutional dimension to the privacy of physician-patient relations.\nThroughout Petrillo, the court stressed that ex parte communication produces no better or greater evidence than that which is obtainable through traditional means of discovery. We note that workers\u2019 compensation practice, while not subject to discovery procedures as provided under the Code of Civil Procedure (735 ILCS 5/1\u2014101 et seq. (West 1998)), nonetheless has analogous avenues for securing information from treating physicians. Every competent, non-ex parte method of acquiring medical information referenced in Petrillo as a basis for barring ex parte contact, including subpoenas, release of relevant records, interrogatories, oral depositions, and live testimony, can be found in an analogous form within the Workers\u2019 Compensation Act (Act) (820 ILCS 305/16 (West 1998)). These procedures under the Act and the rules of the Commission provide sufficient methods for the employer to obtain all the information necessary to act upon a claim within the proper time frame. In view of the existence of discovery-like methods in workers\u2019 compensation, we see no reason to override the public policy and constitutional aspects of the sanctity of physician-patient relationship for the workers\u2019 compensation arena, where the courts have already held that ex parte communications violate those public policy and constitutional concerns in the personal injury arena.\nAccordingly, we answer the certified question as follows.\nEx parte communications between an injured worker\u2019s health care provider(s) and the employer or their legal representative(s) are prohibited by operation of the doctrine enunciated in Petrillo v. Syntex Laboratories, Inc., 148 Ill. App. 3d 581, 499 N.E.2d 952 (1986), and the public policy against such communications described in Best v. Taylor Machine Works, 179 Ill. 2d 367, 458, 689 N.E.2d 1057, 1100 (1997). Thus, we answer subparts 1 and 6 of the certified question in the affirmative. We find it unnecessary to answer the remaining subparts of the certified question, although we note that the prohibition against ex parte communication articulated in Petrillo and ratified in Best is deeply rooted in both the common-law physician-patient privilege (Petrillo, 148 Ill. App. 3d at 591, 596) and the right to privacy found in the Illinois Constitution (Best, 179 Ill. 2d at 458). We also note that the Act and the rules of the Commission provide sufficient methods for an employer to obtain timely information necessary for the fair and efficient resolution of claims. As with discovery under matters governed by the Code of Civil Procedure, the methods for obtaining medical information available to the employer under the Act and the rules of the Commission provide adequate and sufficient means for gathering necessary medical information while still honoring the sanctity of the physician-patient relationship.\nBased upon our answer to the certified question, we reverse the order of the circuit court and remand the cause for further proceedings.\nCertified questions answered; order reversed and cause remanded for further proceedings.\nHOFFMAN, O\u2019MALLEY, and RARICK, JJ., concur.", "type": "majority", "author": "JUSTICE HOLDRIDGE" }, { "text": "PRESIDING JUSTICE McCULLOUGH,\nspecially concurring:\nI agree with the ruling of the majority and submit the following.\nThe supreme court in Best referred to Petrillo stating, \u201cex parte conferences were not necessary to obtain information for defending a lawsuit because the discovery methods outlined by Supreme Court Rule 201 were sufficient.\u201d Best, 179 Ill. 2d at 453, 689 N.E.2d at 1098. The Best court also in discussing Petrillo stated:\n\u201c[T]he Petrillo court distinguished between medical information which is considered waived by the filing of a lawsuit and information which is not waived. The court noted that disclosure of information could be accomplished by either an express consent or one implied at law by the patient\u2019s conduct, such as the filing of a lawsuit. With respect to the latter situation, the patient filing suit implicitly agrees to his or her doctor\u2019s release of any medical information related to the specific physical or mental condition which the patient has placed in issue. However, the plaintiff\u2019s implied consent (or waiver of information) \u2018is obviously and necessarily limited; he consents only to the release of his medical information (relative to the lawsuit) pursuant to the methods of discovery authorized by Supreme Court Rule 201(a) (87 Ill. 2d R. 201(a)).\u2019 (Emphasis in original.) [Citation.] The plaintiff-patient does not, by the simple act of filing suit, consent to ex parte discussions between his treating doctor and defense counsel, nor does he consent to disclosure of confidential information unrelated to the subject matter of the lawsuit.\u201d Best, 179 Ill. 2d at 457, 689 N.E.2d at 1099-1100.\nUnder section 8(a) of the Act, the employer is responsible for all \u201cnecessary medical, surgical and hospital services *** which [are] reasonably required to cure or relieve from the effects of the accidental injury.\u201d 820 ILCS 305/8(a) (West 1998). Section 8(a) also provides:\n\u201cEvery hospital, physician, surgeon or other person rendering treatment or services in accordance with the provisions of this Section shall upon written request furnish full and complete reports thereof to, and permit their records to be copied by, the employer, the employee or his dependents, as the case may be, or -any other party to any proceeding for compensation before the Commission, or their attorneys.\u201d 820 ILCS 305/8(a) (West 1998).\nThis court, as well as the supreme court, has stated that the provisions of the Code of Civil Procedure and the supreme court rules are inapplicable to procedures regulated by the Act. Elles v. Industrial Comm\u2019n, 375 Ill. 107, 113, 30 N.E.2d 615, 618 (1940). See also Chicago Transit Authority v. Industrial Comm\u2019n, 238 Ill. App. 3d 202, 205, 606 N.E.2d 236, 238 (1992); Chambers v. Industrial Comm\u2019n, 132 Ill. App. 3d 891, 893, 478 N.E.2d 498, 499 (1985).\nAs the majority states, the discovery rules discussed in Best and Petrillo do not apply in workers\u2019 compensation cases. The provisions of section 8(a) do allow the employer appropriate methods to determine merits of the claim, its nature, and its extent. The admissibility of evidence is subject at all times to the discretion of the rulings of the Commission.", "type": "concurrence", "author": "PRESIDING JUSTICE McCULLOUGH," } ], "attorneys": [ "Richard D. Hannigan, of Weisz, Michling & Hofmann, P.C., of Woodstock, and Michael J. Evers, of Whitney, Wolfe, Elfenbaum & Evers, P.C., of Chicago, for appellant.", "William A. Lowry, Bruce D. Crofts, and Thomas D. Nyhan, all of Nyhan, Pfister, Bambrick, Kinzie & Lowry, P.C., of Chicago, for appellee Hydraulics, Inc.", "Charles G. Haskins, Jr., and David B. Menchetti, both of Cullen, Haskins, Nicholson & Menchetti, P.C., of Chicago, for amicus curiae Illinois AFL-CIO.", "Arnold G. Rubin, of Chicago, and Kim Edward Presbrey, of Fresbrey & Associates, P.C., of Aurora, for amicus curiae Illinois Trial Lawyers Association." ], "corrections": "", "head_matter": "HYDRAULICS, INC., Appellee, v. THE INDUSTRIAL COMMISSION et al. (Lynn Anderson, Appellant).\nSecond District (Industrial Commission Division)\nNo. 2\u201400\u20141186WC\nOpinion filed March 22, 2002.\nRehearing denied May 22, 2002.\nMcCULLOUGH, EJ., specially concurring.\nRichard D. Hannigan, of Weisz, Michling & Hofmann, P.C., of Woodstock, and Michael J. Evers, of Whitney, Wolfe, Elfenbaum & Evers, P.C., of Chicago, for appellant.\nWilliam A. Lowry, Bruce D. Crofts, and Thomas D. Nyhan, all of Nyhan, Pfister, Bambrick, Kinzie & Lowry, P.C., of Chicago, for appellee Hydraulics, Inc.\nCharles G. Haskins, Jr., and David B. Menchetti, both of Cullen, Haskins, Nicholson & Menchetti, P.C., of Chicago, for amicus curiae Illinois AFL-CIO.\nArnold G. Rubin, of Chicago, and Kim Edward Presbrey, of Fresbrey & Associates, P.C., of Aurora, for amicus curiae Illinois Trial Lawyers Association." }, "file_name": "0166-01", "first_page_order": 184, "last_page_order": 191 }