Most Workers’ Compensation practitioners and claims handlers from Illinois are aware of the fact that the Illinois Workers’ Compensation Act (IWCA) requires the Respondent to provide all of the reports from an IME expert more than 48 hours before the deposition of that IME expert or a trial, but it is a lesser known fact that Petitioners and their attorneys also have a duty to provide all of the treating records more than 48 before a trial.
The last paragraph of Section 12 of the IWCA states that, “in all cases where the examination is made by a surgeon engaged by the injured employee…it shall be the duty of the surgeon making the examination at the instance of the employee, to deliver to the employer, or his representative, a statement in writing of the condition and extent of the injury…said copy to be furnished the employer, or his representative, as soon as practicable but not more than 48 hours before the time the case is set for hearing… If such surgeon refuses to furnish the employer with such statement to the same extent as that furnished the employee, said surgeon shall not be permitted to testify at the hearing next following said examination.”
The language in section 12 states that the surgeon must themselves be providing the records to the Respondent, however, in practice it is the Petitioner that would realistically be supplying the records. In a similar fashion, it is usually the Respondent that supplies the reports from an IME expert more than 48 hours prior to the deposition.
It is also important to note that while the language used in that paragraph of section 12 states that the Petitioner’s treating surgeon shall not be permitted to testify at the next hearing after an examination, the Commission has interpreted this to also mean that such a surgeon’s treating records would also not be admissible in these circumstances.
In Connie Love, Petitioner v. Rgis Inventory, Respondent, 15 IL. W.C. 013194 (Ill. Indus. Com’n Apr. 8, 2016), that is exactly what the Commission ruled. The Petitioner attempted to admit records into evidence that were not disclosed to the Respondent more than 48 hours prior to trial. Respondent objected to same and that Arbitrator allowed the records into evidence, but was then overruled by the Commission on this issue. The Commission cited Section 12 and referred to the Respondent’s citations of Ghere v. Indus. Comm’n, 278 Ill. App. 3d 840, 663 N.E.2d 1046 (4th Dist. 1996) and Mulligan v. Illinois Workers’ Comp. Comm’n, 408 Ill. App. 3d 205, 946 N.E.2d 421 (1st Dist. 2011). Factually, the Commission also noted that it did not matter that Respondent was “fully aware” of who the Petitioner’s treating physicians were and noted that the “Petitioner was seen on the eve of the commencement of the arbitration hearing…”
Interpreting Section 12 to require that Petitioners must provide treating records prior to a deposition or hearing is also supported by the famous Appellate Court case, Ghere v. Indus. Comm’n, 278 Ill. App. 3d 840, 845, 663 N.E.2d 1046, 1050 (4th Dist. 1996), in which the Court stated, “We believe the purpose of section 12 would be frustrated if we read section 12 to only apply to examining physicians. It seems to us from the language of section 12 that the purpose of having the employee’s physician send a copy of his records to the employer no later than 48 hours prior to the arbitration hearing is to prevent the employee from springing surprise medical testimony on the employer. Cf., Cook v. Optimum/Ideal Managers Inc., 130 Ill.App.3d 180, 188, 84 Ill.Dec. 933, 939, 473 N.E.2d 334, 340 (1984). With this purpose in mind, we see no justification in limiting section 12 of the Act to examining doctors and we now so hold.”
It is crucial to protect the rights of Respondents in any trial setting, and keep in mind that Petitioners are not allowed to surprise the Respondent with records that are not provided until the time of hearing. For more practice tips and pointers, stay tuned to the I&F blog!
Thanks to attorney Michael Bantz for the summary of this very important element of the practice. Michael works out of the Champaign office of Inman and Fitzgibbons and can be reached at email@example.com.