{ "id": 5770078, "name": "WILLIAM MULLIGAN, Appellant, v. ILLINOIS WORKERS' COMPENSATION COMMISSION et al., (Rand McNally, Appellee)", "name_abbreviation": "Mulligan v. Illinois Workers' Compensation Commission", "decision_date": "2011-03-28", "docket_number": "No. 1\u201409\u20142507WC", "first_page": "205", "last_page": "223", "citations": [ { "type": "official", "cite": "408 Ill. App. 3d 205" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "832 N.E.2d 331", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2005, "pin_cites": [ { "page": "342" } ], "opinion_index": 0 }, { "cite": "358 Ill. App. 3d 1002", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5731298 ], "year": 2005, "pin_cites": [ { "page": "1013" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/358/1002-01" ] }, { "cite": "465 N.E.2d 1071", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1984, "pin_cites": [ { "page": "1074" } ], "opinion_index": 0 }, { "cite": "125 Ill. App. 3d 445", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3633713 ], "year": 1984, "pin_cites": [ { "page": "449" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/125/0445-01" ] }, { "cite": "663 N.E.2d 1046", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 8, "year": 1996, "pin_cites": [ { "page": "1048" }, { "page": "1050" }, { "page": "1050" }, { "page": "1050" }, { "page": "1050" }, { "page": "1050" }, { "page": "1050" } ], "opinion_index": 0 }, { "cite": "278 Ill. App. 3d 840", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1156845 ], "weight": 8, "year": 1996, "pin_cites": [ { "page": "842" }, { "page": "845" }, { "page": "845" }, { "page": "845" }, { "page": "845" }, { "page": "845" }, { "page": "845" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/278/0840-01" ] }, { "cite": "837 N.E.2d 1", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2005, "pin_cites": [ { "page": "11" } ], "opinion_index": 0 }, { "cite": "216 Ill. 2d 455", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3828104 ], "year": 2005, "pin_cites": [ { "page": "473" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/216/0455-01" ] }, { "cite": "899 N.E.2d 1247", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 11, "year": 2008, "pin_cites": [ { "page": "1248" }, { "page": "1248" }, { "page": "1248" }, { "page": "1248" }, { "page": "1248" }, { "page": "1248" }, { "page": "1248" }, { "page": "1250" }, { "page": "1250" }, { "page": "1251", "parenthetical": "Gordon, J., specially concurring" }, { "page": "1251", "parenthetical": "Gordon, J., specially concurring" } ], "opinion_index": 0 }, { "cite": "387 Ill. App. 3d 276", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4282535 ], "weight": 11, "year": 2008, "pin_cites": [ { "page": "278" }, { "page": "277-78" }, { "page": "277-78" }, { "page": "277-78" }, { "page": "277-78" }, { "page": "278" }, { "page": "278" }, { "page": "280" }, { "page": "280" }, { "page": "281-82" }, { "page": "281-82" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/387/0276-01" ] }, { "cite": "274 Ill. App. 3d 145", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 291554 ], "year": 1995, "pin_cites": [ { "page": "148", "parenthetical": "an agency rule or regulation which conflicts with a statute is invalid" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/274/0145-01" ] } ], "analysis": { "cardinality": 1324, "char_count": 49027, "ocr_confidence": 0.781, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.16993191494948162 }, "sha256": "200be4f81b9f5bfa7cfc183bf2a075620613ebd62e289a8ebf724aef2d96c925", "simhash": "1:a831b4801f0eb0d1", "word_count": 8016 }, "last_updated": "2023-07-14T17:25:24.186889+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "WILLIAM MULLIGAN, Appellant, v. ILLINOIS WORKERS\u2019 COMPENSATION COMMISSION et al., (Rand McNally, Appellee)." ], "opinions": [ { "text": "JUSTICE STEWART\ndelivered the judgment of the court, with opinion.\nPresiding Justice McCullough and Justices Hudson and Hoffman concurred in the judgment and opinion.\nJustice Holdridge specially concurred, with opinion.\nOPINION\nThe central issue in this appeal concerns the requirement in section 12 of the Illinois Workers\u2019 Compensation Act (820 ILCS 305/12 (West 2008)) (the Act) that the proponent of medical testimony furnish a report of the medical expert to the other party at least \u201c48 hours before the time the case is set for hearing.\u201d This appeal is brought by the claimant, William Mulligan, from an order of the circuit court which confirmed a decision of the Illinois Workers\u2019 Compensation Commission (the Commission), awarding the claimant 12 weeks of temporary total disability (TTD) benefits and permanent partial disability (PPD) benefits to the extent of 50% of the person as a whole as a result of a work-related accident. On appeal, the claimant argues, among other issues, that the Commission improperly admitted the medical testimony of two witnesses over his objection in violation of section 12 of the Act. We agree with the claimant and reverse the judgment of the circuit court, vacate the decision of the Commission, and remand the matter to the Commission for further proceedings.\nBACKGROUND\nThe claimant, who worked as the vice president of sales and marketing for the employer, Rand McNally, suffered two work-related accidents, one in February 1994, and one in May 1994. On March 21, 1995, the claimant filed a separate application for adjustment of claim for each of these 1994 accidents. The arbitrator conducted a consolidated hearing on the claimant\u2019s claims on three different days, spanning a period of over two years: April 20, 2004, July 27, 2005, and July 31, 2006. At the arbitration hearing, it was undisputed that the claimant suffered from significant degenerative conditions in his neck and right knee prior to the 1994 accidents at issue. The parties disputed whether the claimant\u2019s accidents aggravated his preexisting neck and knee conditions.\nThe claimant had a number of surgical procedures on his right knee prior to the 1994 work accidents, including a total right knee replacement in January 1988. In March 1991, the claimant had surgery on his neck which included a \u201ccervical hemilaminectomy at C4/5 and C5/6\u201d and a \u201cforaminotomy at C4/5 and C5/6.\u201d The claimant testified that after his knee replacement in January 1988, his knee was pain free and he was \u201cable to do just about anything.\u201d In June 1993, however, the claimant experienced sudden pain and swelling in his right knee. The claimant saw Dr. Sonnenberg, and he found \u201ca 2+effusion of the right knee\u201d and that the claimant had tenderness \u201cover the base of the patellar tendon where it inserts into the anterior tibial tubercle.\u201d Dr. Sonnenberg noted in his June 18, 1993, report that the claimant did a lot of golfing and swimming and that he encouraged \u201cswimming over golfing until the effusion goes down.\u201d Dr. Sonnenberg stated in his report that an X-ray of the claimant\u2019s right knee did not reveal any loosening and that the knee looked \u201cvery good.\u201d\nThe first work-related accident involved in this appeal occurred on February 23, 1994. On that day, the claimant was headed to the employer\u2019s Nashville, Tennessee, facility with a coworker, and they were walking in the parking lot of the Chicago Midway Airport to catch their flight. There was approximately 8 inches of snow on the ground that day. As the claimant walked through the parking lot, carrying his overnight bag and briefcase, his feet slipped on the snow and he fell. He testified that his right knee got caught under his body, twisted, and hyperflexed. He testified that he also struck his neck during the fall, but the only pain at the time was in his knee. He could not walk, but his coworker helped him into the terminal, where they got a wheelchair to get him to his flight. The next day he had to get another wheelchair in Nashville, and on the third day after the accident, he was able to walk with a limp.\nThe claimant testified that his right knee hurt and was swollen for a week. The claimant\u2019s neck hurt after the accident, but not to the extent of his knee. A week or two after the accident, however, his neck started hurting more than his knee. The claimant did not miss any work as a result of the February 1994 fall. Although he testified that he was treated by a chiropractor, he did not produce any medical records for treatment following that accident.\nThe second accident occurred on May 31, 1994. In describing the second accident, the claimant testified that it occurred when he was coming down the stairs in front of the employer\u2019s headquarters as a coworker briefed him on a possible acquisition of a company in California. The claimant was heading to the airport for a flight to Los Angeles, California, and was running late. The stairs in front of the employer\u2019s headquarters were \u201cshiny marble,\u201d and the claimant slipped and fell backward on the stairs because they were \u201cslippery.\u201d The fall rendered the claimant unconscious for 10 to 15 minutes. He testified that he again hyperflexed his right knee during the fall. Paramedics transported the claimant to the emergency room at St. Francis Hospital. He missed his flight to Los Angeles and did not complete the business trip.\nThe emergency room records show that the claimant reported that he hit the right side of his neck and his right knee. X-rays of the right knee at the emergency room revealed the prior total knee replacement, but did not reveal anything wrong with the prosthetic. X-rays of the claimant\u2019s cervical spine revealed anterior osteophytes formation at C5, C6, and C7, and degenerative changes at the C5 and C6 discs.\nAt the arbitration hearing, the claimant presented evidence that his neck conditions worsened shortly after the May 1994 accident. He sought treatment by a chiropractor in June 1994, hoping that adjust-merits to his neck and shoulders would reheve the pain he experienced in his neck and head, which had increased after the May 1994 accident. By December 1994, the claimant continued to have an acceleration of headaches, neck pain that radiated into his right shoulder, and persistent numbness of his right thumb, index finger, and middle finger.\nIn April 1995, the claimant saw a neurologist, Dr. Jerva. According to Dr. Jerva\u2019s records, after the 1994 accidents the claimant suffered from numbness and tingling in his right arm and from \u201ccervical radiculopathy and occipital headaches.\u201d Dr. Jerva wrote in his April 5, 1995 report: \u201cSymptoms began increasing in December, 1994, and continued to accelerate until such time as it has become unbearable and intractable.\u201d The claimant\u2019s pain in the \u201coccipital region and upper cervical region [was] severe with radiation into the right shoulder.\u201d Dr. Jerva concluded that the claimant\u2019s neck condition was \u201cclearly\u201d cervical degenerative osteoarthritis \u201cwith a C6 radiculopathy and an associated cerebral concussion with loss of consciousness for ten minutes or more.\u201d\nDr. Jerva\u2019s records from 1996 state that the claimant had \u201cpersistent tingling and numbness in the C5 and C6 distribution\u201d and that the claimant complained mainly of headaches and numbness in his right thumb, index, and middle finger. In addition, the records state that the claimant had a \u201c[r]adicular component extending up the right extremity to the middle arm\u201d and had \u201c[e]xquisite tenderness overlying the right greater occipital nerve.\u201d\nAfter the May 31, 1994, accident, the claimant did not seek any medical attention with respect to his right knee until he saw Dr. Sonnenberg in June 1996. Dr. Sonnenberg wrote in his notes dated June 26, 1996, that the claimant had been doing well with his knee replacement, except for occasional swelling, but he was concerned about possible wear of the claimant\u2019s knee prosthesis.\nThe claimant saw Dr. Reinhart in August 1996 concerning his right knee pain and swelling. Dr. Reinhart noted that the claimant had effusion and tenderness in his knee area and that X-rays \u201cdemonstrated what appeared] to be metal on metal contact\u201d in the knee prosthesis. The X-rays of the prosthesis showed \u201c[significant medial tilting of the tibial tray.\u201d Dr. Reinhart suspected that the claimant\u2019s knee problems \u201crelated to wear from his original prosthesis.\u201d He did not know whether the conditions were a recent occurrence or had been \u201ca chronic or progressive condition since no previous x-rays were available.\u201d Dr. Reinhart recommended a \u201cMight total knee revision.\u201d\nLater in 1996, the claimant saw Dr. Sweeney, who suspected a possible infection in the knee joint. Cultures from around the knee, however, returned negative, which indicated that there was no infection. On February 25, 1997, Dr. Sweeney replaced the claimant\u2019s entire knee prosthetic. After the surgery, the claimant had to wear a knee brace to hold the new knee prosthetic in place while he walked. The brace reached the top of his right thigh and extended underneath his foot. He also walked with the assistance of a cane. He could walk only 100 to 150 yards at a time before the muscles and tendons in his knee got hot and sore, and he had to rest.\nWith respect to the claimant\u2019s neck pain, on October 8, 1998, Dr. Cerullo and Dr. Geisler performed a \u201cC3 through C7 laminectomy.\u201d The claimant testified that, after the surgery, the back of his neck would become tight during the day which caused headaches. On a normal day, he could last two or three hours before he had to put his head down. When his neck got tight, he had to lay his head down for 45 minutes to an hour, and then he would feel better for another hour or two. In addition, he testified that if he could not lie down and take the weight off his neck, he had to take five to eight hydrocodone pills throughout the day. He did not take any hydrocodone pills on the days he could lie down frequently and take the weight off his neck. In March 2006, he started wearing a morphine patch that emitted pain medicine into his bloodstream. Pain injections in the claimant\u2019s shoulder and neck were successful for only a week or two.\nThe claimant testified that he had to hold his cane in his left hand because he suffered from carpal tunnel syndrome in his right arm. At times, he suffered numbness or pain from his right shoulder down to his hand. He could not grasp anything forcefully with his right hand because of pain. At times, he could not open and close his right hand. The claimant testified that, at the time of the arbitration hearing, he spent his days watching television, reading the newspaper, and talking on the telephone. He laid down every two or three hours. He testified that he could not do anything around the house, such as mowing the lawn or gardening, because of pain in his neck and shoulders. On an ordinary day, he did not have much pain in his right knee because he did not walk much. If he tried to walk anywhere, however, his knee would start to hurt after walking approximately 100 yards. He testified that the pain in his neck was getting worse. The claimant also testified that at times, both hands felt paralyzed and he was unable to completely close his hands.\nOn the issues of causation and the nature and extent of his disability, the claimant presented the evidence deposition testimony of Dr. Gates. Dr. Gates testified that he examined the claimant in 2003, and also reviewed his medical records. Dr. Gates found that the claimant\u2019s 1997 right knee revision was unstable. He observed that the claimant had to use a cane, wear a brace, and walk with a painful and unstable gait. Dr. Gates could see that the lower leg shifted sideways when the claimant walked because his ligaments were stretched out, damaged, and not functioning properly. The claimant still had fluid or swelling in his right knee and had moderate to significant tenderness over the knee. Because of the knee instability, Dr. Gates did not believe that the claimant could perform any type of employment that involved walking. Dr. Gates felt that there was a causal connection between the claimant\u2019s two 1994 accidents and the claimant\u2019s knee and neck conditions. With respect to the knee injury, he testified that both accidents were \u201cclassical for causing loosening of the prosthesis.\u201d In his report dated July 11, 2003, Dr. Gates wrote that the two accidents that occurred in 1994 were \u201cresponsible for the subsequent surgeries and revision in 1997.\u201d\nThe claimant also presented the evidence deposition testimony of Dr. Chmell. Dr. Chmell is an orthopedic surgeon who examined the claimant and reviewed his medical records in January 2004. Dr. Chmell testified that the claimant\u2019s right knee suffered from \u201cgross instability *** in all planes.\u201d The right knee also \u201cdemonstrated crepitus, clicking, and popping\u201d as it was \u201cranged.\u201d\nDr. Chmell\u2019s diagnosis of the claimant included \u201ctraumatic loosening\u201d of the claimant\u2019s right knee prosthesis, \u201ctraumatic aggravation\u201d of the degenerative condition of the claimant\u2019s cervical spine, aggravation of degenerative disc disease of his lumbar spine, aggravation of osteoarthritis in the claimant\u2019s left knee, aggravation of bilateral carpal tunnel syndrome, and aggravation of bilateral cubital tunnel syndrome. The claimant suffered from \u201cdouble pinch syndrome,\u201d which was a nerve that was pinched at the claimant\u2019s wrists and also at the base of his neck. Dr. Chmell believed that these conditions were related to both of the accidents the claimant had on February 23, 1994, and on May 31, 1994. Dr. Chmell stated in his report that the claimant sustained injuries to his right knee and cervical spine as a result of the 1994 accidents and that the injuries resulted in multiple surgeries to the right knee and surgery to the cervical spine. He further stated that the claimant\u2019s knee injury hampered the claimant\u2019s ability to stand and walk, causing aggravation of underlying low back and left knee conditions.\nDr. Chmell testified that the claimant was fully and permanently disabled as a result of his conditions. According to Dr. Chmell, the condition of the claimant\u2019s right knee precludes him from doing any meaningful walking or standing for job purposes. In addition, Dr. Chmell believed that the claimant was limited in his ability to work from a sitting position because of the condition of his upper extremities. Specifically, the condition of the claimant\u2019s cervical spine and upper extremities caused him pain, limited motion, limited strength, and limited sensation in his upper extremities. Dr. Chmell opined that the claimant could not \u201cmeaningfully use his upper extremities for a job.\u201d The claimant\u2019s lower back also precluded the claimant from sitting for prolonged periods, and his use of hydrocodone for his pain interfered with his ability to think and concentrate. Dr. Chmell concluded that all of the claimant\u2019s conditions together prevented the claimant from being \u201cin a workable position to accomplish anything on a regular daily basis.\u201d\nThe employer presented the live testimony of Dr. Kornblatt and the evidence deposition testimony of Dr. Hopkinson on the issue of whether the 1994 accidents caused the claimant\u2019s right knee conditions. The claimant objected to the testimony of these doctors, arguing that the employer had not timely furnished him copies of the doctors\u2019 medical reports as required by section 12 of the Act (820 ILCS 305/12 (West 2008)).\nAs noted above, the arbitrator conducted a consolidated hearing on the claimant\u2019s claims on April 20, 2004, July 27, 2005, and July 31, 2006. The claimant testified at the beginning of the hearing on April 20, 2004. The hearing did not conclude on April 20, 2004, and the proofs remained open at the conclusion of the proceedings that day. The parties appeared before the arbitrator on August 17, 2004, on the employer\u2019s motion for a dedimus potestatem to take the evidence deposition of its independent medical examiner, Dr. Hopkinson. Counsel for the employer noted that the motion was brought pursuant to Commission Rule 7030.60. Dr. Hopkinson had examined the claimant in February 1999, but for reasons not stated in the record, the employer had not taken an evidence deposition of Dr. Hopkinson prior to the start of the hearing on April 20, 2004.\nIn his objection to the employer\u2019s motion for a dedimus potestatem, the claimant\u2019s attorney stated that he had never received Dr. Hopkinson\u2019s report until he received a letter from the employer\u2019s counsel dated July 15, 2004. The letter included a copy of Dr. Hopkinson\u2019s report and a statement that the employer would be relying on the report at trial. The claimant\u2019s attorney objected to the late request for an evidence deposition on the basis that section 12 of the Act required the report to be provided to the claimant no later than 48 hours before the commencement of the hearing on April 20, 2004. Because the employer had not furnished the doctor\u2019s report until July 2004, the claimant argued that the doctor\u2019s testimony should be excluded under section 12. Counsel for the employer stated his belief that a copy of the report had been sent to the claimant\u2019s attorney at the time the report was created, but offered no proof of that claim. He offered no explanation for failing to schedule the deposition before the arbitration hearing. Instead, he argued that the claimant would \u201csuffer no prejudicial effect\u201d if he was allowed to proceed with the deposition.\nThe arbitrator overruled the claimant\u2019s objection to the employer\u2019s request for an evidence deposition of Dr. Hopkinson. In doing so, the arbitrator simply noted that \u201cthe examination of the doctor has not started\u201d and that the parties \u201chave not completed the hearing.\u201d No finding was made that the employer had shown good cause for taking the deposition after the arbitration hearing had commenced. The parties subsequently took Dr. Hopkinson\u2019s evidence deposition on November 4, 2004.\nIn addition to obtaining Dr. Hopkinson\u2019s evidence deposition after the start of the hearing on April 20, 2004, the employer also retained a new medical expert, Dr. Kornblatt, to conduct a review of the claimant\u2019s medical records and render opinions concerning the claimant\u2019s knee conditions. On September 24, 2004, Dr. Kornblatt prepared a report that set out his findings and opinions based on his document review, and that report was then furnished to the claimant.\nWhen the parties appeared at the arbitration hearing on July 27, 2005, the employer called Dr. Kornblatt as a witness. The claimant objected to his testimony, arguing that section 12 required that the employer furnish him a copy of Dr. Kornblatt\u2019s report at least 48 hours prior to the start of the April 20, 2004, hearing. The claimant\u2019s attorney argued that section 12 bars the testimony of a new examining physician retained by the employer after the arbitration hearing has commenced, the claimant has testified, and the depositions of the claimant\u2019s physician witnesses have been taken. The arbitrator overruled the claimant\u2019s objection and again ruled that the 48-hour requirement in section 12 applied to the day of the hearing on which the doctor testified, not to the first day of the hearing on April 20, 2004. The arbitrator, therefore, allowed Dr. Kornblatt to testify on July 27, 2005, over the claimant\u2019s objection.\nDr. Kornblatt testified that he never examined the claimant, but he was requested to perform a review of the claimant\u2019s medical records and offer opinions concerning the claimant\u2019s conditions based on the records. Dr. Kornblatt testified that, in his opinion, the claimant \u201chad an ongoing early failure of his right total knee replacement, beginning with his problem in 1993.\u201d To a reasonable degree of medical and surgical certainty, he believed that the claimant\u2019s \u201cprosthesis would have failed whether or not the claimant had actually sustained [the 1994 accidents].\u201d He testified: \u201cI think it is certainly possible that those injuries may have aggravated the underlying failure that was in place, but I don\u2019t think that the end result would have been any different had he not sustained the injury.\u201d In addition, Dr. Kornblatt testified that, \u201c[biased on the time between the injury and [the claimant] seeking further medical care,\u201d it was likely that the 1994 accidents aggravated the claimant\u2019s knee condition only temporarily.\nDr. Kornblatt agreed that the type of falls that the claimant sustained could loosen or cause damage to the claimant\u2019s prosthesis. However, Dr. Kornblatt noted that in 1993, Dr. Sonnenberg found a 2+ effusion. Dr. Kornblatt explained that \u201c[a] knee that\u2019s five years out doing well does not have an effusion in the absence of injury, and there was no injury\u201d in 1993. Dr. Kornblatt also testified that he believed that if a fall had caused the polyethylene in the claimant\u2019s prosthesis to loosen, he would have expected the polyethylene to have cracked, and he did not think that the claimant could have gone on with his normal activities for several months before seeing a physician for further care.\nDr. Kornblatt testified: \u201cI believe that this is just the ongoing microscopic wear that has happened historically with this type of prosthesis.\u201d He believed that the prosthesis was failing before the claimant\u2019s accidents and that the accidents caused only a temporary aggravation. He testified that if the accidents increased the speed of the wear of the prosthesis, they did so only minimally.\nThe parties appeared before the arbitrator again on July 31, 2006, to complete the proofs on the claimant\u2019s claims. At that hearing, the employer offered the November 4, 2004, evidence deposition of Dr. Hopkinson. The claimant renewed his section 12 objection, and the arbitrator admitted Dr. Hopkinson\u2019s deposition over the claimant\u2019s objection.\nDr. Hopkinson testified at the evidence deposition that he performed an independent medical examination of the claimant\u2019s right knee on February 2, 1999. The claimant complained at that time of constant knee pain and complained that rest and narcotic medications did not seem to alleviate the pain. Dr. Hopkinson noted that the claimant wore a long leg brace and walked with a cane.\nDr. Hopkinson testified that he believed that the second knee replacement that was conducted in February 1997 was required because of \u201cprogressive osteolysis from rapid failure of [the claimant\u2019s] original right knee replacement surgery.\u201d He testified that \u201cat the present time\u201d knee prosthesis components were expected to last 10 to 15 years of normal use, but prostheses used during the time when the claimant received his first knee replacement \u201chave polyethylene inserts that are not of the same quality and durability as the ones that are now.\u201d Dr. Hopkinson also felt that the claimant \u201cwould be extremely limited in his work-related capacity due to the constant soft tissue pain in his knee and that he would have extreme limitations and could not work or stand more than 20 minutes or lift greater than 20 pounds.\u201d Dr. Hopkinson felt that the claimant\u2019s knee conditions \u201cwould be permanent and that he would be limited at best to a sedentary lifestyle or sedentary activities.\u201d Dr. Hopkinson explained that, from a surgeon\u2019s perspective, there was nothing more that could be done with the claimant\u2019s knee conditions except pain modalities and therapy with bracing.\nWith respect to the claimant\u2019s 1994 accidents, he testified that they were the kind of accidents that could have caused or led to a premature failure of the claimant\u2019s knee prosthesis, but it was hard for him to say that conclusively. He did not think the accidents were the sole cause of the failure of the claimant\u2019s prosthesis because the claimant \u201calso had the process of osteolysis,\u201d but he stated that the accidents could have been a contributing factor. Dr. Hopkinson offered no opinion about the claimant\u2019s spine.\nAt the conclusion of the consolidated arbitration hearing, the arbitrator rendered separate decisions for each of the 1994 accidents. The arbitrator found that the claimant injured his right knee, neck, and back when he fell on February 23, 1994, at the airport. The arbitrator, however, concluded as follows: \u201cBased upon the testimony and the evidence submitted, the [claimant] failed to prove that he sustained an accident on February 23, 1994, arising out of and in the course of his employment with the [employer] and that his current condition of ill-being is causally connected to an injury on February 23, 1994.\u201d The arbitrator further found that \u201cthe incident on February 23, 1994, is superceded by the incident and resulting injuries on May 31, 1994.\u201d\nThe Commission affirmed and adopted the arbitrator\u2019s decision with respect to the February 23, 1994, accident except that the Commission clarified the arbitrator\u2019s decision as follows: \u201cThe Arbitrator\u2019s finding of no causal connection and denial of benefits was based upon [the claimant\u2019s] failure to prove that this accident is related to [the claimant\u2019s] current condition of ill-being.\u201d The Commission stated that it \u201caffirms and adopts the finding that, while [the claimant] did sustain accidental injuries arising out of and in the course of employment, [the claimant] did not seek any medical care after the accident, did not miss any time from work, and any current condition of ill-being is causally related to [the claimant\u2019s] second accident on May 31, 1994.\u201d\nWith respect to the May 31, 1994, accident, the arbitrator found that the accident arose out of and in the course of his employment and that the condition of the claimant\u2019s neck was causally related to the work accident. The arbitrator stated: \u201cAlthough the [claimant] reported having cervical problems prior to May 31, 1994, when he sought chiropractic care on June 9, 1994, subsequent to his accident, he reported more numbness in his right arm and fingers and increase in the frequency of reoccurrence of neck pain and headaches.\u201d The arbitrator found, however, that the claimant \u201cfailed to prove that his right knee, back, carpal tunnel and cubital tunnel are related to the work injury.\u201d The arbitrator found as follows:\n\u201cThe [claimant] reported falling and striking the back of his neck and a trauma to his right knee at St. Francis Hospital on May 31, 1994. When he sought chiropractic care on the 9th of June, he reported that both feet went up and his neck hit the stairs. The [claimant] did not report that he hyperflexed or twisted his right leg or describe a fall that would have been consistent with a hyperflexion of his right leg. He did not seek any medical care for his knee until June 26, 1996, at which time Dr. Sonnenberg suspected problems with the polyethylene tray and wear debris. The opinion of Dr. Gates [is] not consistent with the evidence and is conjecture.\u201d\nThe arbitrator found that the injuries that the claimant sustained caused permanent partial disability to the extent of 35% loss of use of the person as a whole. The arbitrator awarded temporary total disability (TTD) benefits for the 12 weeks after the claimant\u2019s cervical surgery on October 8, 1998. Although the arbitrator found that necessary medical services had not been provided by the employer, he found that the claimant\u2019s medical expenses for his cervical spine could not \u201cbe determined from the evidence submitted.\u201d The claimant had submitted a lengthy exhibit which included bills for the combined treatment of the claimant\u2019s multiple injuries. The arbitrator ordered that the employer receive credit for any amount paid for the medical bills and ordered the employer to hold the claimant harmless for all medical bills paid by its group health insurance carrier.\nThe Commission, however, modified the arbitrator\u2019s decision concerning the May 31, 1994, accident. The Commission agreed with the arbitrator\u2019s findings that the claimant\u2019s neck conditions were causally connected to the accident and that the claimant\u2019s knee conditions were not causally related. The Commission further found, however, that the claimant\u2019s medical expenses and treatment for carpal tunnel syndrome and cubital tunnel syndrome were causally connected to the accident on May 31, 1994. The Commission stated as follows:\n\u201cAs early as June 2, 1994, [the claimant] was complaining of numbness/tingling in the right arm and hand and those complaints continued. Eventually, [the claimant] began treating for his carpal tunnel symptoms and the October 2003 EMG indicated right-sided carpal tunnel syndrome. Ultimately, as [claimant] testified, it was determined that he did not have carpal tunnel syndrome and, rather, that his arm numbness/tingling, etc, was due to his cervical condition. As such, we find that [the claimant\u2019s] treatment for carpal and cubital tunnel syndrome were reasonable attempts to determine if the symptoms were being caused by something other than the neck.\u201d\nHowever, the Commission implicitly affirmed the arbitrator\u2019s finding that the medical expenses could not \u201cbe determined from the evidence.\u201d\nThe Commission further modified the arbitrator\u2019s decision by finding that the claimant suffered the loss of 50% of the person as a whole as a result of his permanent partial disability. The claimant appealed the Commission\u2019s decisions with respect to both accidents, and in a consolidated proceeding for review, the circuit court confirmed the decisions of the Commission. This appeal followed.\nANALYSIS\nThe claimant raises several issues on appeal, including that the Commission\u2019s admission of the testimony of Dr. Kornblatt and Dr. Hopkinson violated section 12 of the Act (820 ILCS 305/12 (West 2008)). The claimant further argues that, without their testimony, the Commission\u2019s finding that his right knee condition was not causally connected to the 1994 work accidents and the Commission\u2019s decision to deny benefits for permanent total disability (PTD) as a result of the 1994 accidents were against the manifest weight of the evidence.\nSection 12 of the Act requires the claimant to submit to a medical examination by a qualified medical practitioner or surgeon selected by the employer for purposes of determining the nature, extent, and probable duration of the injury received by the claimant. 820 ILCS 305/12 (West 2008). Section 12 further provides as follows:\n\u201cIn all cases where the examination is made by a surgeon engaged by the employer, and the injured employee has no surgeon present at such examination, it shall be the duty of the surgeon making the examination at the instance of the employer to deliver to the injured employee, or his representative, a statement in writing of the condition and extent of the injury to the same extent that said surgeon reports to the employer and the same shall be an exact copy of that furnished to the employer, said copy to be furnished the employee, or his representative as soon as practicable but not later than 48 hours before the time the case is set for hearing. *** If such surgeon refuses to furnish the employee with such statement to the same extent as that furnished the employer said surgeon shall not be permitted to testify at the hearing next following said examination.\u201d (Emphasis added.) 820 ILCS 305/12 (West 2008).\nOur analysis of the claimant\u2019s objection to the testimony of Dr. Kornblatt and Dr. Hopkinson requires us to construe this language of section 12 of the Act. When resolution of an issue on appeal involves a question of statutory construction, the proper standard of review is de novo. City of Chicago v. Workers\u2019 Compensation Comm\u2019n, 387 Ill. App. 3d 276, 278, 899 N.E.2d 1247, 1248 (2008). The primary goal of statutory interpretation is to ascertain and give effect to the intent of the legislature. Comprehensive Community Solutions, Inc. v. Rockford School District No. 205, 216 Ill. 2d 455, 473, 837 N.E.2d 1, 11 (2005).\nWith respect to Dr. Kornblatt\u2019s testimony, the first issue we must address is whether his testimony, based on a review of medical documents rather than an examination of the claimant, falls within the purview of section 12. In doing so, we note that section 12, on its face, applies to \u201cphysical examinations.\u201d Ghere v. Industrial Comm\u2019n, 278 Ill. App. 3d 840, 663 N.E.2d 1046 (1996), offers us guidance in interpreting the scope of the requirements of section 12.\nIn Ghere, an employer objected to the testimony of a treating physician because his opinions were not furnished to the employer 48 hours before the arbitration hearing pursuant to section 12 of the Act, and the arbitrator sustained that objection. Ghere, 278 Ill. App. 3d at 842, 663 N.E.2d at 1048. On appeal, the claimant contended that section 12 of the Act applies only to examining physicians, not treating physicians. Ghere, 278 Ill. App. 3d at 845, 663 N.E.2d at 1050. The Ghere court disagreed and held that section 12 applies to treating physicians. Ghere, 278 Ill. App. 3d at 845, 663 N.E.2d at 1050. The court reasoned that \u201cthe purpose of section 12 would be frustrated if we read section 12 to only apply to examining physicians.\u201d Ghere, 278 Ill. App. 3d at 845, 663 N.E.2d at 1050. The language of section 12 evidences that its purpose is to prevent a party from springing surprise medical testimony on the other party at the arbitration hearing. Ghere, 278 Ill. App. 3d at 845, 663 N.E.2d at 1050. This purpose is served by having the proponent of medical testimony send a copy of the physician\u2019s records to the other party \u201cno later than 48 hours prior to the arbitration hearing.\u201d Ghere, 278 Ill. App. 3d at 845, 663 N.E.2d at 1050. The Ghere court concluded: \u201cWith this purpose in mind, we see no justification in limiting section 12 of the Act to examining doctors and we now so hold.\u201d Ghere, 278 Ill. App. 3d at 845, 663 N.E.2d at 1050.\nWe apply this same reasoning in the present case with respect to Dr. Kornblatt\u2019s testimony. Dr. Kornblatt formed his opinions, not by examining the claimant, but by examining his medical records. The purpose of section 12 would be frustrated if parties were allowed to spring surprise medical testimony at the arbitration hearing from doctors who form their opinions exclusively through a review of medical records without conducting an examination of the injured employee. Accordingly, we hold that the testimony of a physician that is based upon a review of medical records rather than a physical examination falls within the 48-hour disclosure requirements of section 12.\nHaving determined that Dr. Kornblatt\u2019s testimony falls under the requirements of section 12 of the Act, we must next determine whether the employer complied with the section 12 requirement that the claimant be sent a copy of the doctor\u2019s report no later than 48 hours \u201cbefore the time the case is set for hearing\u201d (820 ILCS 305/12 (West 2008)). This step in our analysis requires us to determine when the case is \u201cset for hearing\u201d for purposes of measuring the 48-hour disclosure requirement. In City of Chicago, we construed this phrase under different circumstances, but our analysis in that case is relevant to construing the statute under the procedural history of the present case.\nIn City of Chicago, prior to the matter being heard by the arbitrator, the parties took the deposition of the claimant\u2019s treating physician in May 2004. City of Chicago, 387 Ill. App. 3d at 277-78, 899 N.E.2d at 1248. The employer subsequently furnished the claimant a report of an independent medical examiner in September 2004. City of Chicago, 387 Ill. App. 3d at 277-78, 899 N.E.2d at 1248. The matter was heard before the arbitrator in February 2005 and May 2005. City of Chicago, 387 Ill. App. 3d at 277-78, 899 N.E.2d at 1248. During the arbitration hearing, an issue arose concerning the admissibility of evidence from the employer\u2019s independent medical examiner under section 12. City of Chicago, 387 Ill. App. 3d at 277-78, 899 N.E.2d at 1248. The arbitrator concluded that the hearing began when the parties took the deposition of the treating physician in May 2004. City of Chicago, 387 Ill. App. 3d at 278, 899 N.E.2d at 1248. Therefore, the arbitrator excluded evidence from the employer\u2019s independent medical examiner based on a determination that the report had not been produced prior to the commencement of the hearing. City of Chicago, 387 Ill. App. 3d at 278, 899 N.E.2d at 1248.\nOn appeal, the City of Chicago court held that the testimony was improperly excluded. City of Chicago, 387 Ill. App. 3d at 280, 899 N.E.2d at 1250. The court held that the term \u201chearing\u201d in section 12 referred to the arbitration hearing, not the treating physician\u2019s deposition. City of Chicago, 387 Ill. App. 3d at 280, 899 N.E.2d at 1250. In his concurring opinion, Justice Gordon noted that the term \u201chearing\u201d is generally defined as being synonymous with the term \u201ctrial.\u201d City of Chicago, 387 Ill. App. 3d at 281-82, 899 N.E.2d at 1251 (Gordon, J., specially concurring) (citing Donovan v. Industrial Comm\u2019n, 125 Ill. App. 3d 445, 449, 465 N.E.2d 1071, 1074 (1984)). \u201cTherefore, given its plain and ordinary meaning, a hearing begins when the parties start to present their arguments and evidence to the arbitrator, not with the taking of an evidence deposition.\u201d City of Chicago, 387 Ill. App. 3d at 281-82, 899 N.E.2d at 1251 (Gordon, J., specially concurring).\nWe now give the term \u201chearing\u201d its plain and ordinary meaning and hold that compliance with section 12 of the Act dictates that the proponent of medical testimony provide the other party with the required medical reports 48 hours before evidence is presented on the first day of the arbitration hearing. This holding is consistent with the purpose of section 12, which is to prevent one party from springing surprise medical testimony on the other party. While circumstances may occur where strict compliance with the requirements of section 12 would result in substantial prejudice, and a showing of good cause would justify relaxing those requirements, this is not such a case. As occurred in this case, one party should not be allowed to retain a new examining physician, over objection, after the arbitration hearing has commenced and the other party has testified and obtained the depositions of his physician witnesses. We note, however, that nothing in the Act would prevent the parties from stipulating to the admission of medical testimony that would not otherwise meet the requirements of section 12. We further note that our holding should discourage the unfortunate practice of continuing an arbitration hearing for the presentation of evidence on multiple days over a period of months or, as in this case, a period of years.\nIn the present case, the parties began presenting evidence to the arbitrator on April 20, 2004. Although the proofs were not completed that day, April 20, 2004, was the day that \u201cthe case was set for hearing\u201d under the requirements of section 12. Therefore, both parties\u2019 physicians were required to furnish their reports to the opposing party at least 48 hours prior to the commencement of the hearing on April 20, 2004. Since Dr. Kornblatt was not even retained to perform a records review until after the arbitration hearing had commenced, his report could not have been timely submitted. His report was not submitted until September 2004, several months after the time the case was set for hearing. Accordingly, pursuant to section 12 of the Act, the Commission should not have allowed Dr. Kornblatt to testify and should have sustained the claimant\u2019s objection to his testimony.\nLikewise, the Commission improperly allowed the admission of the evidence deposition of Dr. Hopkinson over the claimant\u2019s section 12 objection. As noted above, after the arbitration hearing commenced on April 20, 2004, the parties appeared before the arbitrator in August 2004 on the employer\u2019s motion for a dedimus potestatem to take the evidence deposition of Dr. Hopkinson. Dr. Hopkinson examined the claimant and prepared a report in February 1999. The claimant objected to Dr. Hopkinson\u2019s testimony, arguing that he did not receive Dr. Hopkinson\u2019s report until July 2004, well beyond the time the case was set for hearing. The employer\u2019s attorney stated: \u201cIt was our understanding that a report of Dr. Hopkinson was generated and transmitted contemporaneous to the production of the report [to the claimant\u2019s attorney\u2019s] office. A few weeks back I had sent a copy of the report with some deposition dates or an indication to [the claimant\u2019s attorney] that we wanted to secure the deposition of Dr. Hopkinson, and then [the claimant\u2019s attorney] had refused to agree to the deposition of Dr. Hopkinson.\u201d The claimant\u2019s attorney denied that he had ever received Dr. Hopkinson\u2019s report prior to July 2004, and the employer offered no proof that the report had been submitted to the claimant on any earlier date. The arbitrator granted the employer\u2019s motion for a dedimus potestatem over the claimant\u2019s objection, and the parties took the evidence deposition of Dr. Hopkinson on November 4, 2004, which was admitted into evidence over the claimant\u2019s objection.\nWe conclude that Dr. Hopkinson\u2019s testimony was improperly admitted. We hold that when a party objects to the admission of medical testimony on section 12 grounds, the proponent of the medical testimony has the burden to prove compliance with the requirements of section 12 of the Act. In the present case, the employer\u2019s attorney stated that it was his \u201cunderstanding\u201d that Dr. Hopkinson\u2019s report was furnished to the claimant contemporaneously with its production. The only proof, however, that the report was sent to the claimant was a transmittal letter sent in July 2004, indicating that the employer intended to rely on Dr. Hopkinson\u2019s report. The transmittal of the report in July 2004 was untimely under section 12 of the Act. Accordingly, Dr. Hopkinson\u2019s testimony should have been excluded.\nIn addition, Dr. Hopkinson\u2019s testimony should have been excluded because the employer failed to show \u201cgood cause\u201d for taking his evidence deposition after the start of the arbitration hearing. Section 7030.60 of the rules adopted by the Commission governs the timing of evidence depositions in workers\u2019 compensation proceedings. 50 Ill. Adm. Code 7030 (2008). Section 7030.60 provides that \u201c[ejvidence depositions of any witness may be taken after the hearing begins only upon order of the Arbitrator or Commissioner, for good cause shown.\u201d (Emphasis added.) 50 Ill. Adm. Code 7030.60(a). In the present case, the employer\u2019s counsel stated that the motion for a dedimus potestatem was brought pursuant to section 7030.60.\nHowever, our review of the record does not reveal any showing of good cause to allow Dr. Hopkinson\u2019s late evidence deposition after the hearing had begun. As we have already held, the arbitration hearing in this case began on April 20, 2004. By allowing Dr. Hopkinson\u2019s deposition without requiring the employer to show good cause, the arbitrator violated section 7030.60, and the Commission erred in adopting the arbitrator\u2019s ruling on that issue. Since there was no showing of good cause, section 7030.60 mandated that the claimant\u2019s request for a late deposition be denied.\nFurther, we cannot find that the admission of Dr. Kornblatt\u2019s and Dr. Hopkinson\u2019s testimony was harmless error. When erroneously admitted evidence does not prejudice the objecting party, error in its admission is harmless. Greaney v. Industrial Comm\u2019n, 358 Ill. App. 3d 1002, 1013, 832 N.E.2d 331, 342 (2005). In the present case, the parties disputed the issue of whether the claimant\u2019s work-related accidents contributed to the claimant\u2019s conditions of ill-being in his right knee. In addition, the parties disputed the extent of the claimant\u2019s disability as a result of the work-related injuries.\nThe arbitrator and the Commission found that the claimant\u2019s knee conditions were not causally connected to the work accidents, and neither the arbitrator nor the Commission expressly relied on the employer\u2019s medical testimony. However, our review of the record reveals that the only medical opinion admitted at the hearing that supported the Commission\u2019s finding was the testimony of Dr. Kornblatt. In fact, the employer\u2019s attorney conceded at oral argument that Dr. Kornblatt\u2019s testimony was the only medical testimony in the record that supported a finding that the claimant\u2019s knee conditions were not causally connected to the 1994 accidents. The claimant presented medical testimony of two examining physicians who opined that the 1994 accidents aggravated his knee conditions and were causally connected to the conditions of ill-being in his right knee. Accordingly, we cannot uphold the Commission\u2019s decision. We must remand this matter to the Commission for new findings that do not rely on the testimony of Dr. Hopkinson or Dr. Kornblatt.\nCONCLUSION\nFor the foregoing reasons, the judgment of the circuit court of Cook County confirming the decision of the Commission is reversed. We vacate the decision of the Commission and remand the cause to the Commission for further proceedings consistent with the holdings contained herein.\nReversed; Commission decision vacated; cause remanded.", "type": "majority", "author": "JUSTICE STEWART" }, { "text": "JUSTICE HOLDRIDGE,\nspecially concurring:\nI concur. I write separately to note my concurrence only with the majority\u2019s holding that the Commission\u2019s admission of testimony by Drs. Kornblatt and Hopkinson violated section 12 of the Act. 820 ILCS 305/12 (West 2008). When a party objects to the admission of medical testimony on section 12 grounds, the proponent of the medical testimony has the burden to prove compliance with the requirements of section 12 of the Act. The judgment of the court in the instant matter is that the employer failed to meet the specific requirement of section 12 which requires that a report of a physician who will give testimony at the arbitration hearing must be provided to the opposing party at least 48 hours prior to the commencement of the arbitration hearing. Here the record supported the finding that the reports of Drs. Kornblatt and Hopkinson were not provided to the claimant before the hearing commenced on April 20, 2004.\nHaving found that the proposed medical testimony was barred under section 12 of the Act, there is no need for this court to address the \u201cgood cause\u201d provision found in Section 7030.60 of the Commission rules. 50 Ill. Adm. Code 7030.60(a). Section 7030.60 is a general evidentiary provision which provides that \u201c[e]vidence depositions of any witness may be taken after the hearing begins only upon order of the Arbitrator or Commissioner, for good cause shown.\u201d (Emphasis added.) 50 Ill. Adm. Code 7030.60(a). This provision applies to an evidence deposition of any party, and does not specifically address medical testimony. Medical testimony is specifically addressed by section 12 of the Act.\nI would find that section 7030.60 clearly has no application to the instant matter. The \u201cgood cause\u201d provision of section 7030.60 cannot allow an arbitrator or the Commission to excuse noncompliance with section 12 of the Act. See Board of Trustees of the University of Illinois v. Illinois Educational Labor Relations Board, 274 Ill. App. 3d 145, 148 (1995) (an agency rule or regulation which conflicts with a statute is invalid). Simply put, if a party does not comply with section 12 of the Act by providing the physician\u2019s written report at least 48 hours prior to hearing, that physician cannot testify, either in person or by evidence deposition. Neither the arbitrator nor the Commission can excuse noncompliance with section 12 of the Act for \u201cgood cause.\u201d While section 7030.60 of the Commission rules might allow the arbitrator or the Commission to permit the taking of an evidence deposition of an occurrence witness after the hearing has commenced, it cannot allow the taking of an evidence deposition from a physician where the proffering party has failed to provide a report from that physician to the other party prior to the commencement of the hearing. To allow the taking of that physician\u2019s deposition after the hearing had commenced, even for \u201cgood cause\u201d shown, would violate section 12 of the Act.\nI would hold that where, as here, a party has failed to comply with section 12 of the Act, the medical testimony is barred. The Commission may not excuse noncompliance with the Act for \u201cgood cause\u201d pursuant to section 7030.60 of Commission rules. I, therefore, disagree with the portion of the judgment of the court discussing compliance with section 7030.60 of the Commission rules.", "type": "concurrence", "author": "JUSTICE HOLDRIDGE," } ], "attorneys": [ "Thomas R. Lichten, of Thomas R. Lichten, Ltd., of Chicago, for appellant.", "Christopher P Carr, of Garofalo, Schrieber, Hart & Storm, Chtrd., of Chicago, for appellee." ], "corrections": "", "head_matter": "WILLIAM MULLIGAN, Appellant, v. ILLINOIS WORKERS\u2019 COMPENSATION COMMISSION et al., (Rand McNally, Appellee).\nFirst District (Workers\u2019 Compensation Commission Division)\nNo. 1\u201409\u20142507WC\nOpinion filed March 28, 2011.\nRehearing denied April 27, 2011.\nThomas R. Lichten, of Thomas R. Lichten, Ltd., of Chicago, for appellant.\nChristopher P Carr, of Garofalo, Schrieber, Hart & Storm, Chtrd., of Chicago, for appellee." }, "file_name": "0205-01", "first_page_order": 221, "last_page_order": 239 }