June 05, 2011

Record Review Reports Subject to Section 12

June 05, 2011

William Mulligan v. Illinois Workers’ Compensation Commission No. 1-09-2507WC

William Mulligan suffered injuries on separate dates to his right knee and cervical spine which he claimed rendered him totally disabled from working.  His employer disputed this claim based on Mulligan’s long history of multiple knee surgeries, including a total knee replacement, and prior surgery to the cervical spine.  His physicians testified that the injuries aggravated these preexisting conditions.  His employer presented testimony from two physicians over Mulligan’s objection that the reports of these physicians had not been timely furnished him as required by Section 12 of the Act.

One of the employee’s experts examined Mulligan years before the hearing commenced but his testimony had not been taken prior to the initial trial proceedings in July 2004.  After the trial commenced, the employer retained another expert who did not examine Mulligan but rather reviewed his medical records and rendered a causation opinion.  When this expert was called to testify, Mulligan’s attorney objected, claiming that Section 12 bars the testimony of a physician retained by the employer after a hearing commences and a claimant has testified.

The arbitrator permitted the testimony of both doctors and rendered a decision denying the claim for injuries for the first accident, awarding permanent partial disability for the cervical injuries sustained at the time of the second accident, and denying the claim for right knee injuries on the second accident date.

On appeal, Mulligan argued that without the testimony of the employer’s two physicians the Commission could not have denied the claim for right knee injuries and Mulligan’s claim to be totally disabled as a result of his multiple injuries.

The appellate court took up this claim, noting that Section 12 requires a claimant to submit to an examination selected by the employer for purposes of determining the nature, extent and probable duration of the injury.  Section 12 further provides:

In all cases where the examination is made by a surgeon engaged by the employer…it shall be the duty of the surgeon making the examination at the insistence of the employer to deliver to the injured employee, or a representative, a statement in writing of the condition and extent of the injury to the same extent that said surgeon reports to the employer…said copy to be furnished the employee, or his representative as soon as practicable, but not later than 48 hours before the time the case is set for hearing.  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.

The Court construed the meaning of Section 12, whose purpose is to prevent surprise medical testimony at the arbitration hearing.  This purpose is served by having the proponent of medical testimony provide a copy of the required medical report 48 hours prior to the arbitration hearing.  Section 12 also requires that the report be sent no later than 48 hours “before the time the case is set for hearing.”  The term “hearing” is synonymous with the term “trial” which begins when the parties start to present their arguments and evidence to the arbitrator.  Therefore, compliance with Section 12 dictates that the proponent of medical testimony provide the other party with the required medical reports 48 hours before evidence is presented on the first day of the arbitration hearing.  There may be certain circumstances where “substantial prejudice” would result from strict compliance with Section 12, but a showing of good cause can justify relaxing these requirements.

Applying this interpretation to the case at hand, the Court found that the arbitrator and the Commission had improperly permitted the testimony of the examining and record review physicians.  The examining physician’s report was not made available to petitioner or his counsel prior to the initial arbitration hearing, and the record review report was subject to the provisions of Section 12 as well.  While not a report of a physical examination, admissibility of the record review report was subject to Ghere v. Industiral Comm., wherein the testimony of a treating physician was barred when his opinions were not furnished 48 hours prior to trial.  The Ghere court reasoned that “the purpose of Section 12 would be frustrated if we read Section 12 to only apply to examining physicians.”

The court concluded that the testimony of the examining physician and the record review physician were improperly admitted.  The Rules adopted by the Commission governing the timing of evidence depositions, Section 7030.60, provide that “evidence depositions of any witness may be taken after the hearing begins only upon order of the Arbitrator or Commissioner, for good cause shown” (emphasis in original).  There being no good cause shown to allow the evidence depositions of the examining and record reviewing physicians, admission of their testimony was not harmless error.  Since the only medical opinion supporting the Commission’s finding was the testimony of the record review physician, the court remanded the case to the Commission for new findings which did not consider his testimony.

Justice Holdridge, who concurred, felt that there was no need to address the “good cause” provision found in Commission Rules.  While the Rules do provide for taking evidence depositions of any witness for good cause shown, this cannot excuse initial non-compliance with Section 12.  Therefore, Justice Holdredge would have barred the testimony for failure to comply with Section 12 and would not have reached the discussion of “good cause” provided for in the Rules.


It is difficult to discern what “surprise” there could have been in a claim which began in 1994 and the trial which commenced in April 2004.  Nonetheless, the examining physician report must in all cases be provided to claimant’s attorney within 48 hours of the trial or any evidence deposition of the physician.  And, while the record review report was technically not a Section 12 report as there was no “exam,” it was not surprising to see the court apply the Ghere holding: Section 12 has been applied to treating physicians.  Therefore, the extension of Section 12 requirements to a records review report is consistent with the Ghere case.

What remains to be seen is what will constitute “substantial prejudice” permitting relaxation of Section 12 compliance.  Given that the arbitrators, with apparent Commission approval, are extremely reluctant to permit bifurcation of cases, it is not uncommon for an employer to be unfairly surprised by a claimant’s testimony, especially where the employment relationship was severed long before the hearing.  InMulligan there was a ten-year gap between the dates of initial injury and trial, and it is likely there were developments of which the employer was not aware.  This can be inferred from the fact that the arbitrator permitted a continuance for the record review, a rare event.

Since it can be difficult to obtain up to date information before a trial starts, the practice of Wiedner & McAuliffe is to in all cases request copies of proposed exhibits, but even this cannot guarantee a revised version of the accident being attested to at trial which prompts a continuance request.  The Mulligan court does not rule out the prospect for such relief, only that the employer failed to spell out the compelling need for a continuance.