WCLA MCLE 4-19-11

1. WCLA MCLE 4-19-11 • A Tale of Two Rules: The Deposition Rule & The 48-Hour Rule; Getting Evidence In or Keeping It Out • Tuesday April 19, 2011 from 12:00 pm to 1:00 pm • James R. Thompson Center Auditorium, Chicago, IL • 1 Hour General MCLE Credit

2. Quick ReminderInjured Workers’ Benefit Fund • 820 ILCS 305/4(d): “An eligible claimant is an injured worker who has within the previous fiscal year obtained a final award for benefits from the Commission against the employer and the Injured Workers’ Benefit Fund and has notified the Commission within 90 days of receipt of such award.” • IC44 6/08: INJURED WORKERS’ BENEFIT FUND:REQUEST FOR BENEFITS AND AFFIDAVIT

3. Deposition Rule50 IL Admin Code Sec. 7030.60 (2008) • Section 7030.60 Depositions • 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. Except as provided in subsection (f) below, such application shall be in writing and shall contain… (specific information itemized by the rule)… • b) The time for taking depositions pursuant to the issuance of the dedimus potestatem shall be on a date set not less than ten (10) days after the issuance of such dedimus…. • d) Except as provided in subsection (f) below, notice of the issuance of the dedimus potestatem shall be given in sufficient time so that the receipt of such copy of the dedimus potestatem shall not be less than ten (10) days before the date set for the taking of the deposition. … • f) Exceptions • 1) Provided, however, where it is shown that by complying with the time requirements prescribed herein, the party seeking the dedimus may be deprived of the evidence sought to be obtained by the deposition, that the Arbitrator or Commissioner to whom a case has been assigned for hearing may, in his discretion: A) on notice and hearing before trial waive or reduce such requirements, or B) permit a party to present an oral application of a dedimus potestatem immediately before or during trial and, after due consideration of such application and any objections thereto that may be orally raised by the opposite party, rule upon the application. 2) Where a dedimus potestatem is issued upon such oral application, the hearing officer shall allow the parties reasonable time to complete the deposition and submit the transcript thereof before closing proofs in the case.

4. Paul Bole v. Osgood Industries05WC42185; 09IWCC429 • DA 4-12-04, service tech injures leg • 2-21-08 Arbitration hearing: Respondent objects to narrative report of treating doctor; objection sustained; Arbitrator allows Petitioner to take deposition, “(Petitioner) has a right to take a deposition.” • 4-9-08: “(N)o recourse but to take deposition” • 6-8-10: Proofs closed; deposition admitted over Respondent’s objection • Arbitrator makes award to Petitioner based on treater’s deposition; Commision affirms, with dissent about dep (failed to establish “good cause”); Cir.Ct. confirms

5. Osgood Industries v. IWCCNo. 1-09-3310WC, filed 3-31-11 (Rule 23 Order) • Respondent argues that Arbitrator erred by allowing “late” dep “without articulating good cause” • Petitioner argues that sub(f) allows exception without “good cause” • “Thus, read as a whole, … sub(f) was created as an exception to only the three above timing and notice requirements” and not to the good cause requirement • Additionally, “sub(f) is not triggered unless the proponent of the evidence makes a showing that compliance with the time and notice requirements would deprive him of evidence, and the claimant made no such showing here.” • Our review of the record reveals no showing of good cause; by allowing a deposition to proceed after the start of the hearing without a showing of good cause, the Arbitrator erred; REMANDED FOR NEW DECISION • Dissent: abuse of discretion; reasonable person could see good cause

6. 48-Hour Rule820 ILCS 305/12 • “In 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 tothe employee, or his representative as soon as practicable but not later than 48hours before the time the case is set for hearing. Such delivery shall be made in person either to the employee or his representative, or by registered mail to either, and the receipt of either shall be proof of such delivery. 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.”

7. William Mulligan v. Rand McNally95WC15352; 08IWCC466 • DA 2-23-94 VP falls down stairs • 2-99 IME Dr. Hopkinson • 4-20-04 1st Arbitration hearing • 7-15-04 Petitioner receives IME Hopkinson report • 8-17-04 Dedimus by Respondent to take IME Hopkinson deposition allowed (“no finding of good cause”) • 9-24-04 Record review by IME Dr. Kornbaltt; “report furnished to Petitioner” • 7-27-05 2nd Arbitration hearing; IME Dr. Kornblatt called live; objection overruled • 7-31-06 3rd Arbitration hearing; IME Dr. Hopkinson’s dep admitted over Petitioner’s objection

8. Mulligan v. IWCCNo.1-09-2507WC, filed 3-28-11 • The claimant raises several issues on appeal, including that the Commission‘s admission of the testimony of Dr. Kornblatt and Dr. Hopkinson violated section 12 of the Act (820 ILCS 305/12 (West 2008)). • DR. KORNBLATT • 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. • We now give the term "hearing" 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 ispresented on the first day of the arbitration hearing. City of Chicago, 387 Ill. App.3d 276 (2008). • We further note that our holding shouldiscourage the unfortunate practice of continuing an arbitration hearing for the presentationf evidence on multiple days over a period of months or, as in this case, a period of years.

9. Mulligan v. IWCCNo.1-09-2507WC, filed 3-28-11 • Dr. Hopkinson • Likewise, the Commission improperly allowed the admission of the evidence deposition of Dr. Hopkinson over the claimant's section 12 objection. • We conclude that Dr. Hopkinson's 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 addition, Dr. Hopkinson's testimony should have been excluded because the employer failed to show "good cause" for taking his evidence deposition after the start of the arbitration hearing. Section 7030.60… • Further, we cannot find that the admission…was harmless error. • For 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