1. Workers’ Compensation Lawyers Association MCLE City of Chicago: The Case that Killed Marks v. Acme? February 18, 2009 JRTC Assembly Hall at Chicago, IL 12:00 noon to 1:00 pm 1 Hour General MCLE Credit Richard J. Barr, Jr. (Petitioner) Aukse R. Grigaliunas (Respondent)

2. 48 Hour Rule Section 12 (820 ILCS 305/12) “In all cases where the examination is made by a surgeon engaged by the employer, … it shall be the duty of the surgeon…to deliver to the injured employee or his representative…a statement in writing…exact copy of that furnished to the employer … as soon as practicable but not later than 48 hours before the time the case is set for hearing…in person…or by registered mail…If such surgeon refuses…said surgeon shall not be permitted to testify at the hearing next following said examination.” Ghere(278 Ill.App.3d 840 1996): “There was nothing in Dr. Climaco’s records to put the employer on notice that he had an opinion regarding causal connection which the employer could have requested. Therefore, the Arbitrator was correct in sustaining the employer’s objection to Dr. Climaco’s testimony regarding the above matters.”

3. 50 IL.ADMIN. CODE, Sec. 7030.60 “a) Evidence depositions of any witness may be taken, before hearing, only upon stipulation of the parties or upon order, called a dedimus potestatem in Section 16 of the Act, issued by the Arbitrator or Commissioner to whom the case has been assigned upon application of either party. Evidence depositions of any witness may be taken after the hearing begins, only upon order of the Arbitrator or Commissioner, for good cause shown. e) No dedimus postestatem shall be issued to take the deposition of any medical witnesses: A) where the party applying for the dedimus postestatem has refused or failed to comply with the provisions of Section 12 of the Act, and B) unless he shall have served the other side with a signed report of such medical witness-other than a treating physician-giving his findings and conclusions.”

4. 50 IL.ADMIN. CODE, Sec. 7030.20 “g) Bifurcated hearings are discouraged and will be allowed only for good cause. Examples of good cause include, but are not limited to, where the number of witnesses make it impossible to conclude the hearing in one day or the testimony of a witness must be taken prior to a deposition. All cases, except those which are heard under Section 19(b-1) of the Act, must be concluded within 3 months after the first hearing date or the Arbitrator will close proofs, absent good cause shown, and render a decision.”

5. Marks v. Acme 02 IIC 0892 Petitioner has heart attack while on work-related hunting trip Petitioner relies on Dr. Greenberg; Respondent relies on Dr. Kale (records review, but Section 12 applies; see Weber 97 IIC 2230) Arbitrator Hennessy awards Petitioner TTD and 25% MAW Commission reverses (Stevenson, Dickett- Smart): no causation Circuit Court (White) sets aside: Arbitrator and Commission should not have admitted depoosition of Dr. Kale

6. Marks v. Acme (cont.) On remand, Commission (Kinnaman & Rink; Gilgis dissenting): “The remaining issue is the admissibility of Dr. Kale’s deposition” The Arbitrator erred in admitting Kale’s deposition “Petitioner’s counsel received Dr. Kale’s report at the end of Dr. Greenberg’s deposition on August 6, 1998 but six weeks before Dr. Kale’s deposition was taken in September 1998” Petitioner’s counsel objected to the admission of Kale’s deposition at Arbitration citing Ghere and violation of the 48 hour rule in Section 12 Petitioner argues that Dr. Greenberg’s deposition is commencement of trial as to 48 hour rule/Ghere

7. Marks v. Acme (cont.) “The Circuit Court found that Dr. Kale’s deposition testimony is barred pursuant to Section 12 of the Act…Based on the above, and the record taken as a whole, the Commission finds that Dr. Kale’s deposition testimony is barred pursuant to Section 12 of the Act. The Commission notes that Section 12 requires the report of examining physicians such as Dr. Kale be tendered 48 hours prior to trial or hearing. In this case, Respondent not only failed to produce the report within the requisite 48 hours, but produced the report after the deposition of Petitioner’s treating (?sic) physician Dr. Greenberg was concluded. The Commission finds that the evidence deposition of Dr. Greenberg meets the definition of ‘trial or hearing’ under Section 12 as it is a critical time for the revelation and exploration of opinion testimony in these matters. As a result, withholding opinions at that juncture sets up the element of surprise prohibited by Section 12. Further, the Commission finds the fact that Dr. Kale formed his opinions based on his review of other physician’s reports as opposed to his own physical examination of Petitioner has no bearing on Respondent’s duty to produce the report under Section 12. Accordingly, the Commission finds that Dr. Kale’s testimony is barred from the record in this case.”

8. Tipton v. KB Toys 06 IWCC 0610 Arbitrator Mathis allows Dr. Pontaczek’s (IME records review) deposition into evidence, even though Dr. Bonutti (treater) had already been deposed Commission excludes it (Sherman & Rink; Ulrich specially concurring) “As to the admissibility of Dr. Pontaczek’s testimony, the Commission finds that for purposes of the 48 hour requirement of Section 12 of the Workers’ Compensation Act, Dr. Bonutti’s evidence deposition was the ‘commencement of trial’ and thus Dr. Pontaczek’s testimony should not have been admitted” Distinguished from Marks v. Acme, but testimony still excluded; Respondent had no intent to surprise, but “failure to present the report 48 hours prior to commencement of trial necessitates its exclusion.”

9. Sicurella v. Monarch 06 IWCC 0777 Arbitrator Prieto: “The Arbitrator has reviewed the reports and evidence deposition of Dr. Walsh…(who) prepared three reports…Petitioner objected to the third report (prepared after the deposition of Dr. Gireesan)…based on Marks v. Acme…The Arbitrator does not find the Marks case as persuasive…the Arbitrator has therefore reviewed all three reports…However, the Arbitrator does note that the evidence deposition of Dr. Walsh, which was completed ex-parte, addresses issues which were not delineated in the three reports. The Arbitrator pursuant to Ghere will not consider those additional opinions of Dr. Walsh.” Commission (Ulrich, Sherman & Rink): “Petitioner contends that the deposition of Dr. Walsh was improperly admitted into evidence. The Commission agrees, noting that as the ex parte deposition was taken without stipulation of the parties or issuance of a dedimus potestatem, the testimony should have been excluded from the record. See Ill. Admin. Code Title 50, Sec.7030.50 (1996).”

10. Norton v. Nestle’s 08 IWCC 0375 Arbitrator Tobin: “The Petitioner also objected to a supplemental report from Dr. Vender dated October 12, 2006 (RX2) and a job site evaluation dated September 16, 2006 (RX3) on the basis that those documents were not provided to the Petitioner prior to Dr. Borowiecki’s October 17, 2006 evidence deposition … Petitioner relies upon Ghere and Marks v. Acme.” “The Arbitrator does not agree with the Petitioner’s interpretation of a bright line rule which would cut off all additional expert reports. To be reasonable and fair to all parties each case must be evaluated upon its own set of facts and circumstances before a determination of compliance with the spirit of the 48 hour provision in Section 12 can be made.” Arbitrator sustains objection to RX2 and RX3 Commission (Dauphin & Sherman) affirm Commissioner Lamborn dissenting: “I write separately to express my reservations about the validity of the Commission’s decision in Marks v. Acme,” citing Respondent’s “limited precedential value” argument and constitutional argument.

11. Kopack v. Western Remac 08 IWCC 0591 First hearing March 16, 2006 Surveillance tapes thereafter given to the Petitioner by the Respondent Deps taken: for Petitioner, Dr. Freeman 3/06 & Dr. Pitchford 4/06; for Respondent, Dr. Bush-Joseph 5/06 & Dr. Goldberg 11/06 who issued addendum report 4/06 Arbitrator Lammie: “(I)n the instant case there is no surprise…In light of the aforementioned, the Petitioner cannot claim that he was in any way, shape or form surprised by Dr. Goldberg’s testimony regarding his review of the surveillance footage.” Commission affirms (Gore, DeMunno & Basurto): “(T)he Commission makes no findings in regard to the evidentiary issues raised on review. The Commission notes that the totality of the other evidence supports the Decision of the Arbitrator. Accordingly, the evidentiary issues are moot.”

12. Kirby v. Casey’s General Store 08 IWCC 1036 Arbitrator Tobin sustains Petitioner’s objection to Dr. Soriano’s “supplemental opinions” pursuant to Ghere and Marks IWCC (Rink, Lindsay, Mason) reverses on evidentiary issue, vacates findings and remands to Arbitrator Petitioner should not have been surprised by supplemental opinion (see next slide)

13. Kirby v. Casey’s 08 IWCC 1036 “The facts in the present case are sufficiently different from those in Marks to produce a different result. The major difference is that the report at issue was supplemental, and as such, primarily builds upon the conclusions formed in the initial report. Thus, the element of surprise, which formed the basis for the rationale in Marks, is exactly what is missing in the fact situation presented by the case before us. In his March 3, 2006 report, Dr. Soriano concluded that the Petitioner's accident involved a mere soft tissue strain. This report was given to Petitioner far in advance of Dr. MacGregor's deposition on August 9, 2006. Petitioner submitted to Dr. Soriano's second Section 12 examination on September 12, 2006, and Dr. Soriano had the opportunity to view the results of the surgery performed by Dr. MacGregor on May 19, 2006. Since his March, 2006 report indicated his belief that her injuries were relatively minor; his unfavorable conclusions with respect to the need for, and results of her surgery, were perhaps thoroughly predictable. This is unlike the situation in which an initial Section 12 exam is given following the deposition of Petitioner's treating doctor. In this instance, at the time of Dr. MacGregor's deposition, Petitioner was still treating and issues were pending as to causal connection and temporary total disability benefits. Respondent has a right to address them with a supplemental post-surgery report. The Commission also relies on Homebrite Ace Hardware v. Industrial Commission, 351 Ill. App. 3d 333, 339 (5th Dist. 2004) in which the Court re-examined Ghere and discouraged the presumption that undisclosed opinion testimony constitutes surprise. The Commission is also mindful of the problem faced by a respondent when, as here, the treating doctor is deposed more than six months prior to the Arbitrator's hearing. Thus, Dr. MacGregor was deposed on August 9, 2006, and the Arbitrator's hearing took place on March 13, 2007. Where the deposition of the treating doctor is conducted so many months prior to the Arbitrator's hearing, and where all Section 12 reports from exams subsequent to the deposition are excluded, without the possibility of exception for lack of surprise, the respondent is disadvantaged in its efforts to appropriately defend its legitimate interests. This would not seem to conform to the legislative intent of Section 12. Inasmuch as Dr. Soriano's initial report goes so far to defeat the element of surprise, the avoidance of which is the primary reason for the Marks rule, it seems proper to allow Dr. Soriano's supplemental report to be received in evidence.”Homebrite Ace Hardware v. Industrial Commission, 351 Ill. App. 3d 333, 339 (5th Dist. 2004)

14. Ezra Townsend v. City of Chicago 98 WC 30518 45 year old operating engineer Back injury on April 17, 1998 Prior 19(b) awarded Petitioner TTD through September 19, 2001 Deposition of Petitioner’s treater Dr. Chmell taken May 7, 2004 (by agreement) Respondent’s IME with Dr. Slack on August 26, 2004, report dated September 6, 2004 and tendered to Petitioner on September 20, 2004 First hearing before Arbitrator Reichart February 8, 2005 Arbitrator finds Petitioner to be Perm Total (medical?)

15. Townsend v. City of Chicago 06 IWCC 1176 Arbitrator Reichart: “The deposition of the treating physician, Dr. Samuel Chmell was taken on May 7, 2004. Not only did the Respondent tender the report of Dr. Slack dated September 6, 2004 after that deposition, but the examination itself took place four months thereafter…Therefore, whether there is an actual hearing date set before the Arbitrator is irrelevant to the conclusion reached by the Commission in Marks…Merely because the Petitioner attended the appointment does not waive a later objection to the report of the doctor based on the Commission’s holding in Marks…(T)he ‘commencement of trial’ in this case was when the evidence deposition of Dr. Chmell was taken…(T)he Arbitrator is bound to follow it (Marks) …Therefore, the Petitioner’s objection to the Septemeber 6, 2004 report of Dr. Slack is sustained, and that exhibit is hereby rejected.” Commission (Pigott, DeMunno affirms): “The Commission also affirms the Arbitrator’s rejection of Dr. Slack’s report pursuant to Marks v. Acme…While the Respondent did not deliberately withold the report of its examiner…the 48-hour disclosure rule still governs.” Commissioner Lindsay dissents: “The Respondent here did nothing wrong, unfair, or of a surprising nature.”

16. City of Chicago v. IWCC 07 L 050054 Cook County Circuit Court Judge Sheldon Gardner, dated September 17, 2007 confirms “Even if the meaning of ‘commencement of trial’ is at controversy, the ‘Board’ has the right and vested power to interpret the language of Section 12 of the Act to decide the meaning of ‘commencement of trial’ and rule as to what evidence will or will not be admitted. As it has been established that the report of Dr. Slack was not given to the Plaintiff (Petitioner) within the 48 hour time limit established by Section 12 of the Act, and it is within the province of the Commission to draw reasonable inferences from the evidence, it was rational to interpret Section 12 to exclude the report of Dr. Slack based on the facts presented in this case.”

17. City of Chicago v. IWCC 1-07-2850WC Unanimous decision(Holdridge, McCullough, Grometer & Donovan; Gordon specially concurring) filed December 23, 2008 reverses “At issue here is whether the Commission erred in excluding the IME report of Dr. Charles Slack, issued on September 6, 2004, because it was not disclosed to the claimant prior to the May 7, 2004 commencement of the treating physician's deposition. The parties dispute the appropriate standard of review. The claimant maintains that the issue involves an evidentiary ruling, which is to be upheld unless it is an abuse of discretion. Homebrite Ace Hardware., 351 Ill. App. 3d 333 (2004). The employer maintains that the appropriate standard of review is de novo, as what is at issue is whether Dr. Slack's report is barred by Section 12 of the Act. We note that resolution of the matter involves a question of statutory construction, the appropriate standard of review is de novo. King v. Industrial Comm'n., 189 Ill. 2d 167 (2000); we therefore review de novo.”Homebrite Ace Hardware., 351 Ill. App. 3d 333 (2004)King v. Industrial Comm'n., 189 Ill. 2d 167 (2000)

18. City of Chicago v. IWCC 1-07-2850WC “Still with no date set for a hearing before an arbitrator, the employer scheduled an independent medical examination (IME) as provided in Section 12 of the Act, with Dr. Slack, which took place on August 26, 2004. We find no indication in the record that the claimant's attorney objected to the IME, and the claimant, in fact, appeared for the IME on August 26, 2004. At that time, Dr. Slack issued a report in conjunction with his examination, dated September 6, 2004. This report was tendered to the claimant's attorney on September 20, 2004. In a letter to claimant's counsel, the employer's counsel asked if claimant would stipulate to the admission of Dr. Slack's report, or whether claimant would wish to depose Dr. Slack. The employer received no response.”

19. City of Chicago v. IWCC 1-07-2850WC “At the outset, we note one important factual distinction between the instant matter and the facts in Marks. In Marks, the employer had the examining physician‘s report in hand prior to the treating physician's deposition, but failed to provide a copy of the report to the claimant until after the conclusion of the treating physician's deposition. Here, Dr. Slack's report did not even exist at the time of Dr. Chmell's deposition. In fact, the claimant participated without objection in Dr. Slack's examination, and Dr. Slack's report was tendered only a few days after the examination and well before the arbitration hearing.” “Given this court's prior determination that the purpose of Section 12 is to prevent surprise medical testimony at the arbitration hearing, the Commission's ruling in Marks that the ‘hearing’ referred to in Section 12 is the treating physician's deposition is completely at odds with this court's statement of the purpose of Section 12. The Commission's decision to exclude Dr. Slack's report was error as a matter of law. We note that had Dr. Slack's report been completed by withheld until after Dr. Chmell's deposition the outcome may have been different. We therefore reverse the circuit court's decision confirming the Commission's decision excluding Dr. Slack's report pursuant to Section 12 of the Act as being error as a matter of law; and remand for further proceedings before the Commission.”

20. Unresolved Issues? What does “surprise” mean? Existence of report? Issues addressed by report? Surveillance/job video used by report? What does “as soon as practicable” mean? If no hearing set yet, does 48 hours before evidence deposition apply? Who goes first with their evidence deposition? Where does it end? How many responses? Aleksy’s Motion to Exclude Witnesses?