Objections to Evidence Pursuant to the 48 Hour Rule
GHERE and MARKS – What Do They Mean and Why Should I Care?
By John Kamin
Several evidentiary issues concerning the admission of medical evidence are peculiar to workers’ compensation cases. The “48 hour rule” is found in Section 12 of the Work Comp Act which addresses independent medical examinations. The Act provides that if a party obtains an IME, the doctor is to provide the opposing party a statement in writing of the condition and extent of injury identical to the report that he provides the party who retained him as soon as practicable but no later than 48 hours before the time the case is set for hearing. (820 ILCS 305/12). The purpose of this provision is to avoid a circumstance where an attorney surprises the opponent with new medical evidence at the time of trial. A parties objection to the admission of a report that is tendered within 48 hours should be sustained.
The “48 hour rule” was extended to reports of treating physicians in Ghere v. Industrial Commission, 278 IllApp. 3d 840, 663 NE2d 1046, 215 Ill.Dec. 532 (4th Dist., 1996). In Ghere, the worker had suffered a fatal heart attack. The petitioner’s attorney offered deposition testimony from a cardiologist in an effort to establish that the heart attack was precipitated by the employment activity. The employer also offered deposition testimony from an expert indicating there was no connection between the employee’s death and his work activities. At trial, the petitioner’s attorney called another treating ER doctor to testify. He had seen the deceased worker on several occasions over a 10 year period prior to his death but had never treated him for any heart problems. The petitioner’s attorney attempted to illicit testimony from the ER doctor concerning the cause of the heart attack. The employer objected asserting that the physician’s opinions had not been disclosed to it 48 hours before the hearing. The Appellate Court agreed finding that the 48 hour rule should be applied to treating physicians. Otherwise, the employee would be allowed to inappropriately spring surprise medical testimony on the employer. The Court further noted that although the employer had the ER doctor’s medical records prior to trial, there was nothing in those records concerning petitioner’s heart problems or any opinion regarding whether the heart attack may have been related to work. Consequently, there was nothing to put the employer on notice that the doctor would have an opinion concerning these issues.
As a practical matter, physicians typically testify by way of evidence deposition and are not called to testify live at arbitration. The Ghere decision has now led most attorneys to include boilerplate language in the notice of evidence deposition that the doctor will render opinions concerning the cause of any and all medical conditions referenced in their records, as well as address any other potential issues that may be disputed in the workers’ compensation claim. Presumably, this puts the other party on notice.
The Ghere objection was taken to an extreme in Marks v. Acme Industries, Inc., 02 IIC 892. In Marks, the Arbitrator awarded benefits finding the employee suffered a work-related heart attack. However, the Commission reversed relying in part upon respondent’s expert. On appeal, the Circuit Court reversed the Commission’s decision and found that the Arbitrator and Commission had erred in admitting the respondent’s examining physician’s deposition testimony. In Marks, it was the employer who was charged with improperly springing surprise medical evidence upon the employee’s attorney. The treating cardiologist was deposed by agreement of parties. The cardiologist opined that the petitioner’s heart attack was work related. At the conclusion of the deposition, the employer’s attorney handed to petitioner’s attorney a report prepared by his medical expert witness who concluded that the employee’s heart attack was not related. The employee’s attorney then participated in the employer’s expert’s deposition some 6 weeks after he received the report. However, at arbitration the employee’s attorney objected to the admission of the deposition arguing that pursuant to Ghere, the employer failed to tender their expert’s report within 48 hours of the treating doctor’s deposition. The employee argued that the treating doctor’s deposition was the “commencement of trial” for purposes of applying the “48 hour” rule. The Circuit Court agreed and found that the respondent was barred from offering its expert’s testimony even though petitioner’s attorney had participated in the evidence deposition. The test was not whether the expert’s report was tendered 48 hours before his deposition, but whether it was tendered before testimony had been taken by any witness.
Both Ghere and Marks illustrate that bad facts make bad law. The impact of the Marks decision has been more significant than Ghere. As opposed to relying on these decisions for their intended purpose (defending against surprise medical evidence), both employer’s and employee’s attorneys have used the Marks decision as a “sword” in an effort to foreclose an opponent from developing “new” medical evidence. This may be by way of an IME or deposition of a doctor whose records have yet to be obtained. Fortunately, objections pursuant to both Ghere and Marks may be waived by a party, which is common practice where physicians testimony is needed early in a case regarding issues concerning causal relationship, appropriateness of treatment, etc. A party may require a waiver of Ghere and Marks objections as a condition to conducting a deposition of a treating doctor. The Commission rules provide that depositions may only be taken pursuant to the agreement of the parties. If no agreement is reached, then the party wishing to depose the doctor must file a motion for dedimus potestatem and obtain an order from the Arbitrator setting the deposition. Objections may also be raised to such motions in the event the appropriate medical evidence has yet to be developed.
The practical effect for a claims handler and defense attorney is that your ability to properly develop a defense may be hindered or even lost if the parties agree to proceed with an evidence deposition or without a “Marks”waiver, or worse, if an ex parte deposition takes place pursuant to a dedimus order. In the event such a motion is received in a pending workers’ compensation claim, it is imperative to refer the matter immediately for defense and so an attorney may appropriately respond to the motion. Otherwise, you may be foreclosed from developing your defense.
Originally published in the Fall 2008 edition of Quinn Quarterly.