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Appellate Court Reverses IWCC’s Exclusion of IME Report Based upon Marks Objection

By John F. Kamin

In our last newsletter, we discussed the application of the 48-hour rule in workers’ compensation cases and the extension of same by the Appellate Court in the Ghere and Marks Decisions which used the rule to bar admission of a party’s medical evidence. These Decisions were limited by the Appellate Court in the City of Chicago v. Workers’ Compensation Commission, 2008 WL 5382001 (Ill.App. 1 Dist.). In City of Chicago, the treating physician was deposed on May 7, 2004. After the deposition, the respondent obtained an IME and the doctor authored a report on September 6, 2004. The Arbitrator and Commission barred admission of the IME report relying upon the decision in Marks noting that the commencement of trial was the date of the treating physician’s deposition and that the report had not been tendered more than forty-eight (48) hours in advance of same. The circuit court affirmed this decision.

The Appellate Court reviewed the matter de novo and reversed. The court noted that the petitioner’s attorney did not object to the IME which took place after the deposition of the treating doctor and that the report from the IME doctor was tendered to petitioner’s attorney within two (2) weeks of being issued and several months before the matter was set for hearing. The court noted that there was an important factual distinction between the instant case and the facts in Marks. In Marks the employer had the IME report in hand prior to the treating physician’s deposition but failed to tender a copy of same until after the deposition was completed. In City of Chicago, the IME had not even taken place. The court then analyzed its decisions in Ghere and Marksand was critical of the conclusion that the date of the evidence deposition is the start of the “arbitration hearing”. However, the court also noted that if the IME doctor’s report had been completed but withheld until after the treating doctor’s deposition, the outcome may have been different.

Justice Gordon specially concurred and keyed on the definition of the commencement of the “hearing” as stated in Section 12 of the Act. The IME doctor’s reports must be provided no more than forty-eight (48) hours before the start of a hearing. After reviewing the legislative intent, Justice Gordon concluded that the hearing actually begins when the parties start to present their arguments and evidence to the Arbitrator, not with the taking of an evidence deposition. Justice Gordon also noted that the report was not “testimony” which may be barred by the forty-eight (48) hour rule.

In City of Chicago, the court seems to recognize what is the practical and appropriate sequence of the burden of proof and production of evidence. The petitioner has the burden to prove his case and does so many times by taking the evidence deposition of a treating physician. It may not be evident from the records that the treating physician will provide testimony sufficient to satisfy the petitioner’s burden of proof. In that event, the respondent should be given the opportunity to evaluate the basis of the treating doctor’s testimony and opinions and obtain an IME or necessary medical evidence to rebut same. The City of Chicago decision helps limit the application of theMarks decision. Again the lesson is to promptly produce your IME report to opposing counsel. Further, it is not clear from the record whether a hearsay objection was also made by petitioner to the report.

Originally published in the Spring 2009 edition of Quinn Quarterly.