{ "id": 3748767, "name": "CHARLES DAVID BORROWMAN, Plaintiff-Appellant and Cross-Appellee, v. REBECCAH PRASTEIN et al., Defendants (Watertower Paint and Repair Company, Intervenor-Appellee and Cross-Appellant)", "name_abbreviation": "Borrowman v. Prastein", "decision_date": "2005-03-28", "docket_number": "No. 4-04-0559", "first_page": "546", "last_page": "552", "citations": [ { "type": "official", "cite": "356 Ill. App. 3d 546" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "820 N.E.2d 1089", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2004, "pin_cites": [ { "page": "1094", "parenthetical": "First District" } ], "opinion_index": 0 }, { "cite": "354 Ill. App. 3d 330", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3217877 ], "year": 2004, "pin_cites": [ { "page": "335", "parenthetical": "First District" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/354/0330-01" ] }, { "cite": "572 N.E.2d 920", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1991, "pin_cites": [ { "page": "923", "parenthetical": "the employer's right to reimbursement is to be protected by the court" } ], "opinion_index": 0 }, { "cite": "143 Ill. 2d 188", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5591191 ], "year": 1991, "pin_cites": [ { "page": "194", "parenthetical": "the employer's right to reimbursement is to be protected by the court" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/143/0188-01" ] }, { "cite": "484 N.E.2d 1076", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1985, "pin_cites": [ { "page": "1079" } ], "opinion_index": 0 }, { "cite": "108 Ill. 2d 421", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3129595 ], "year": 1985, "pin_cites": [ { "page": "426" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/108/0421-01" ] }, { "cite": "642 N.E.2d 1195", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1994, "pin_cites": [ { "page": "1202" } ], "opinion_index": 0 }, { "cite": "162 Ill. 2d 153", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 477537 ], "year": 1994, "pin_cites": [ { "page": "169" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/162/0153-01" ] }, { "cite": "584 N.E.2d 182", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 6, "year": 1991, "pin_cites": [ { "page": "182" }, { "page": "182" }, { "page": "184" }, { "page": "184" }, { "page": "182" } ], "opinion_index": 0 }, { "cite": "222 Ill. App. 3d 443", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5263188 ], "weight": 6, "year": 1991, "pin_cites": [ { "page": "444" }, { "page": "444" }, { "page": "448" }, { "page": "447" }, { "page": "444" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/222/0443-01" ] }, { "cite": "689 N.E.2d 217", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 8, "year": 1997, "pin_cites": [ { "page": "223" }, { "page": "219" }, { "page": "219" }, { "page": "219" }, { "page": "219" }, { "page": "223" }, { "page": "219" } ], "opinion_index": 0 }, { "cite": "294 Ill. App. 3d 365", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 35383 ], "weight": 8, "year": 1997, "pin_cites": [ { "page": "372" }, { "page": "366-67" }, { "page": "367" }, { "page": "367" }, { "page": "366" }, { "page": "372" }, { "page": "367" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/294/0365-01" ] } ], "analysis": { "cardinality": 681, "char_count": 14350, "ocr_confidence": 0.755, "pagerank": { "raw": 1.557659245448893e-07, "percentile": 0.6763792020306976 }, "sha256": "0b45628d76b884652fdc739b41482d3ff095cbb14811131d2429546d0bda23b3", "simhash": "1:91a874d4ee98c4c4", "word_count": 2269 }, "last_updated": "2023-07-14T16:18:02.423948+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "CHARLES DAVID BORROWMAN, Plaintiff-Appellant and Cross-Appellee, v. REBECCAH PRASTEIN et al., Defendants (Watertower Paint and Repair Company, Intervenor-Appellee and Cross-Appellant)." ], "opinions": [ { "text": "JUSTICE APPLETON\ndelivered the opinion of the court:\nPlaintiff, Charles David Borrowman, and intervenor, Watertower Paint & Repair Company, respectively, appeal the trial court\u2019s order awarding Watertower a lien pursuant to section 5(b) of the Workers\u2019 Compensation Act (Act) (820 ILCS 305/5(b) (West 2002)) on Borrow-man\u2019s medical malpractice settlement. Borrowman questions the propriety of the court\u2019s award and, in the alternative, the amount. Watertower disputes only the amount, arguing it is entitled to more than awarded. We reverse.\nI. BACKGROUND\nOn April 7, 1995, Borrowman, while working for Watertower, was painting the inside of a water tower when his safety rigging collapsed, causing him to fall into the tower, fracturing his heel. Dr. Rebeccah Prastein, an orthopedic surgeon, performed surgery to repair the fracture. Soon thereafter, Borrowman developed an infection in the bone known as osteomyelitis, which Dr. Prastein treated with antibiotics. Because the infection worsened, Dr. Prastein operated again on the foot and attempted to remove the infectious area. Dr. Prastein then prescribed two more-aggressive antibiotics \u2014 Vancomycin and Gentamycin.\nAlthough the infection had cleared by September 1995, Borrow-man experienced a severe earache, some hearing loss, dizziness, and vestibular balance problems, which were later associated with the antibiotics prescribed by Dr. Prastein. Borrowman suffered irreversible damage to his inner ear. One of Borrowman\u2019s expert witnesses said the two antibiotics should not have been prescribed together without closely monitoring Borrowman\u2019s health because, when taken together, the antibiotics have a toxic effect.\nWith regard to the foot injury only, Dr. Prastein released Borrow-man to work with restrictions on November 20, 1995, and without restrictions on July 25, 1996. Soon after the accident, Borrowman filed for workers\u2019 compensation benefits against Watertower.\nIn October 1997, Borrowman filed suit against Dr. Prastein and the Visiting Nurses Association of Morgan and Scott Counties (VNA) for damages resulting from the negligent medical treatment Borrow-man received. Neither Dr. Prastein nor the VNA is a party to these appeals.\nOn January 7, 2000, pursuant to a settlement contract, Borrow-man and Watertower settled the pending workers\u2019 compensation case for $230,000.\nIn February 2001, Borrowman filed his first petition to adjudicate Watertower\u2019s claim that it was entitled to a workers\u2019 compensation section 5(b) lien against any recovery Borrowman might receive from the malpractice case. In July 2001, Borrowman agreed to settle the medical malpractice claims for $750,000.\nWithin days of the settlement, Borrowman again filed a petition to adjudicate Watertower\u2019s alleged lien, and the parties engaged in discovery for the next two years.\nOn January 8, 2004, the trial court conducted a hearing on the adjudication of the lien. In support of Watertower\u2019s position, Arthur R. Kingery, a workers\u2019 compensation attorney from Peoria, Illinois, testified as Watertower\u2019s expert witness. Kingery had reviewed Borrowman\u2019s medical records and testified as to how much, in his opinion, of the workers\u2019 compensation settlement was attributable to the medical malpractice.\nBorrowman testified on his own behalf that in January 2000, when he settled his workers\u2019 compensation claim, he was still experiencing pain in his foot and dizziness from the vestibular condition. In his opinion, he would not be able to return to work as a high-tower painter because of both injuries, not just the vestibular condition. He testified that he was unable to work after Dr. Prastein\u2019s release-to-work date because of the foot injury alone and he was entitled to all of the disability payments Watertower had made irrespective of the malpractice, which impacted his balance difficulties.\nAt the close of evidence, the trial court ordered the parties to submit written arguments and on April 12, 2004, held Watertower was entitled to a lien on Borrowman\u2019s medical malpractice settlement in the amount of $175,973.71.\nOn May 28, 2004, without further explanation, the trial court denied Watertower\u2019s motion for reconsideration. These appeals followed.\nII. ANALYSIS\nBorrowman appeals and Watertower cross-appeals the trial court\u2019s order granting Watertower a $175,973.71 section 5(b) hen against Borrowman\u2019s medical malpractice settlement. Borrowman claims Water-tower is not entitled to a lien at all or, in the alternative, is entitled to less than the amount ordered. Relying on the First District\u2019s opinions in Kozak v. Moiduddin, 294 Ill. App. 3d 365, 689 N.E.2d 217 (1997), and Robinson v. Liberty Mutual Insurance Co., 222 Ill. App. 3d 443, 584 N.E.2d 182 (1991), Watertower insists the court miscalculated the hen and claims it is entitled to more than the amount awarded.\nThe pivotal issue in this appeal is whether Watertower is entitled to a hen pursuant to section 5(b) of the Act (820 ILCS 305/5(b) (West 2002)) when it agreed to settle its claims with Borrowman knowing a medical malpractice case was pending.\nSection 5(b) allows, in certain circumstances, an employer to claim a hen on any amount recovered by an employee from a third party. The section sets forth, in relevant part, as follows:\n\u201cWhere the injury or death for which compensation is payable under this Act was caused under circumstances creating a legal liability for damages on the part of some person other than his employer to pay damages, then legal proceedings may be taken against such other person to recover damages notwithstanding such employer\u2019s payment of or liability to pay compensation under this Act. In such case, however, if the action against such other person is brought by the injured employee or his personal representative and judgment is obtained and paid, or settlement is made with such other person, either with or without suit, then from the amount received by such employee or personal representative there shall be paid to the employer the amount of compensation paid or to be paid by him to such employee or personal representative ***.\u201d 820 ILCS 305/5(b) (West 2002).\nIn Robinson, the trial court awarded the intervenor insurance company a lien on the plaintiffs medical malpractice settlement. Robinson, 222 Ill. App. 3d at 444, 584 N.E.2d at 182. The plaintiff claimed the court erred in awarding a lien amount equivalent to the full amount of workers\u2019 compensation benefits paid by the intervenor. Robinson, 222 Ill. App. 3d at 444, 584 N.E.2d at 182. The appellate court agreed and held the intervenor\u2019s lien should be equivalent only to the amounts paid that were directly attributable to the malpractice. Robinson, 222 Ill. App. 3d at 448, 584 N.E.2d at 184.\nHere, Watertower cites Robinson for the proposition that, pursuant to section 5(b), it is undoubtedly entitled to a lien on the malpractice settlement, even though the amount of the lien \u201cshould extend to only those expenses attributable to the medical aggravation of the injury\u201d (Robinson, 222 Ill. App. 3d at 447, 584 N.E.2d at 184).\nWatertower finds further support in Kozak, where the appellate court also held the intervenor employer was entitled to a lien against the plaintiffs recovery from his medical malpractice action. Kozak, 294 Ill. App. 3d at 372, 689 N.E.2d at 223. The plaintiff and his employer agreed to settle the plaintiffs workers\u2019 compensation claim for nearly $300,000. Kozak, 294 Ill. App. 3d at 366-67, 689 N.E.2d at 219. Shortly after the settlement, the plaintiff filed a medical malpractice suit against the doctors who treated his work-related injury. Kozak, 294 Ill. App. 3d at 367, 689 N.E.2d at 219. The employer sought to intervene in the action, claiming a lien against any funds recovered by the plaintiff.\nRelying on the Joint Tortfeasor Contribution Act (740 ILCS 100/ 0.01 through 5 (West 1992)), and for reasons not relevant to the issues before us, the trial court held the employer was judicially estopped from asserting his lien rights. Kozak, 294 Ill. App. 3d at 367, 689 N.E.2d at 219.\nOn appeal, the employer argued that the trial court\u2019s holding\u2014 that it was not a joint tortfeasor for contribution purposes \u2014 did not preclude it from asserting its lien for payments made under the Act. Kozak, 294 Ill. App. 3d at 366, 689 N.E.2d at 219. The appellate court held that the employer was entitled to assert its lien, since it was not aware of the potential for medical negligence in the treatment of the plaintiff\u2019s work-related injury when it agreed to settle its workers\u2019 compensation claim. Kozak, 294 Ill. App. 3d at 372, 689 N.E.2d at 223.\nWe find crucial distinctions between the case sub judice and both Robinson and Kozak. First, Robinson, unlike this case, involved no workers\u2019 compensation settlement. The Illinois Industrial Commission adjudicated the plaintiff\u2019s claim and determined the extent of the employer\u2019s liability. Robinson, 222 Ill. App. 3d at 444, 584 N.E.2d at 182. Second, in Kozak, the employer settled the plaintiffs workers\u2019 compensation claim before it knew of the medical malpractice allegations. Kozak, 294 Ill. App. 3d at 367, 689 N.E.2d at 219. Despite Watertower\u2019s insistence that the employer\u2019s lack of knowledge of the malpractice claim at the time it settled the workers\u2019 compensation claim in Kozak was insignificant, we find it was of the utmost importance.\nBorrowman filed his workers\u2019 compensation claim soon after the April 1995 accident. He filed his malpractice claim in 1997. While the malpractice claim was pending, Watertower and Borrowman settled the workers\u2019 compensation case. Watertower agreed to pay Borrow-man a lump sum of $230,000. The settlement agreement was prepared by Gary J. Ferrari, an attorney for Travelers Insurance Company, Watertower\u2019s insurance carrier. Ferrari also prepared a separate addendum attached to the agreement, which set forth more specific terms of the agreement as follows:\n\u201cThe above constitutes a full, final!,] and complete settlement of any and all claims for temporary total disability, permanent partial and/or permanent total disability incurred or to be incurred by said [petitioner by reason of an industrial injury occurring on or about April 7, 1995, or by reasons of any claim or cause of action by [petitioner against [Respondent of any nature whatsoever. Rights under [s]ections 8(a) and 19(h) of the *** Act are hereby waived by both parties.\u201d\nThe agreement was signed by all parties and approved by the Illinois Industrial Commission on January 7, 2000.\nThe agreement does not refer to, or contain any reservation of rights (or waiver) with regard to, plaintiffs then-pending malpractice action. Watertower cannot attribute this silence to its lack of knowledge of the pending action because the record reveals that in October 1998 in the malpractice action, VNA filed a notice that it intended to depose a representative of Travelers (Watertower\u2019s insuranee carrier). In all fairness to Watertower, it does not assert that it was not aware of Borrowman\u2019s malpractice action.\nBecause Watertower was aware of Borrowman\u2019s allegations against Dr. Prastein and the VNA, it is reasonable to conclude, by the lack of any reference thereto, that Watertower forfeited its lien rights in its \u201cfull, final[,] and complete settlement\u201d with Borrowman. It is also reasonable to assume, due to the fact it was not mentioned in the agreement, Watertower\u2019s claim of a potential lien was not an issue during the negotiations surrounding the workers\u2019 compensation settlement. We find nothing in the record to refute the fact that all concerned negotiated and bargained (1) in good faith and (2) with full knowledge of the then-current circumstances and their impendent rights.\nFor this court to hold that Watertower was entitled to a lien against Borrowman\u2019s malpractice settlement proceeds when Water-tower (1) failed to reserve its right in its workers\u2019 compensation settlement with Borrowman and (2) knew of the pending malpractice action at the time would completely nullify both parties\u2019 good-faith dealings. Such a holding would have Borrowman return to Watertower the money that Watertower previously agreed to give Borrowman without a change in circumstances. It would not only belie Illinois\u2019s public policy of encouraging settlements (see In re Guardianship of Babb, 162 Ill. 2d 153, 169, 642 N.E.2d 1195, 1202 (1994)) but would effectively serve as a repudiation of the agreement. We hold that Water-tower should be bound by the terms of its agreement and is not entitled to a section 5(b) lien on the malpractice case.\nWe are mindful that the supreme court has stated the clear purpose of section 5(b) is to protect the employer and that duty rests with the trial court. Freer v. Hysan Corp., 108 Ill. 2d 421, 426, 484 N.E.2d 1076, 1079 (1985); see also Blagg v. Illinois F.W.D. Truck & Equipment Co., 143 Ill. 2d 188, 194, 572 N.E.2d 920, 923 (1991) (the employer\u2019s right to reimbursement is to be protected by the court). However, the supreme court\u2019s holdings in Freer and Blagg were premised on the notion that it was unfair for an employee to manipulate a settlement with a third party in a manner that would circumvent the employer\u2019s workers\u2019 compensation lien. Such is not the case here. Watertower negotiated and signed the settlement agreement with Borrowman with full knowledge of the pending malpractice action. \u201cThe Act cannot be read to require the court to step in under these circumstances to save [Watertower] from itself.\u201d Sheppard v. Rebidas, 354 Ill. App. 3d 330, 335, 820 N.E.2d 1089, 1094 (2004) (First District).\nIII. CONCLUSION\nFor the foregoing reasons, we reverse the trial court\u2019s order granting Watertower a section 5(b) (820 ILCS 305/5(b) (West 2002)) lien against Borrowman\u2019s medical malpractice proceeds.\nReversed.\nSTEIGMANN and KNECHT, JJ., concur.", "type": "majority", "author": "JUSTICE APPLETON" } ], "attorneys": [ "Carissa A. Mahr and Warren E. Danz, both of Warren E. Danz, EC., of Peoria, for appellant.", "Michael E. Rusin, Gregory G. Vacala, and Maxwell H. Brusky, all of Rusin, Maciorowski & Friedman, Ltd., of Chicago, for appellee." ], "corrections": "", "head_matter": "CHARLES DAVID BORROWMAN, Plaintiff-Appellant and Cross-Appellee, v. REBECCAH PRASTEIN et al., Defendants (Watertower Paint and Repair Company, Intervenor-Appellee and Cross-Appellant).\nFourth District\nNo. 4 \u2014 04\u20140559\nOpinion filed March 28, 2005.\nRehearing denied May 4, 2005.\nCarissa A. Mahr and Warren E. Danz, both of Warren E. Danz, EC., of Peoria, for appellant.\nMichael E. Rusin, Gregory G. Vacala, and Maxwell H. Brusky, all of Rusin, Maciorowski & Friedman, Ltd., of Chicago, for appellee." }, "file_name": "0546-01", "first_page_order": 564, "last_page_order": 570 }