4-26-2011; Can we get a “mulligan” on this one?

As Larry the Cable Guy says, you can’t write this stuff—the name of the ruling is Mulligan v. IWCC. If you don’t know what a “mulligan’ is; in golf parlance, it is a “do-over” without penalty due to a poor golf stroke. Having read what we consider a somewhat baffling ruling by the Appellate Court, Workers’ Compensation Division, we are wondering if there might be the legal equivalent of about four mulligans out there somewhere for the reasons we outline.

From a purely academic perspective, we feel this ruling criss-crosses all over the WC block. The majority ruling indicates the main dispute is the disclosure requirement in Section 12 of our WC Act. If you aren’t aware of the requirement, when either party gets a Section 12 medical evaluation of a claimant, they have to disclose it 48 hours prior to the “hearing” of the claim or it is potentially inadmissible.

Then let’s review a truly odd set of facts. Claimant asserts he was injured in two separate events waaaaay back in 1994. The Applications for Adjustment of Claim were filed waaaaay back in 1995. If you are wondering how claims from prior to Y2K are still dragging on, please understand our view claimant hired one of the sloooooowest claimant attorneys of all. If you want some idea of how slow this claimant attorney is, please go to any Quincy, Illinois status call and look at the oldest claims. If you look at the March 2011 status call online at http://www.iwcc.il.gov/pdfs/dwnscall/jan-jun/tobi0105.pdf, you will note this attorney has seven of the ten oldest and moldiest claims. The oldest claim is thirteen years old and still pending at arbitration. Numerous Arbitrators have dealt with this attorney and fought and fought to get him to move claims faster with limited success.

Arbitration hearings on these 1994 accidents and 1995 filings started more than ten years after the first claimed event in 2004. The hearings ended two years later in 2006—again, a strikingly slow trial pace which we assure you was not the Arbitrator’s fault. The facts of the claim indicate claimant had a total knee replacement prior to slipping and falling at Chicago’s Midway Airport in 1994 and straining the leg. He did not produce any medical records of care and did not lose any time from work. In the second accidental occurrence, claimant again fell and suffered soft tissue injuries. Again, while he started treating more frequently after the second occurrence, it does not appear he lost time from work. Three years after the occurrence, claimant’s total knee prosthesis was replaced. Four years after these events, claimant’s cervical spine underwent what the decision says is a four-level “laminectomy.” This is somewhat odd from a medical perspective because a laminectomy is a procedure performed in anticipation of a discectomy.

Claimant’s attorney presented two doctors as experts. One doctor felt the accidents caused the knee revision and cervical surgery. The second doctor provided a similar opinion and asserted claimant was totally and permanently disabled from all work.

The defense attorney sought to present two physicians as experts. The first was an IME doctor who examined claimant in 1999. Six months after the first hearing in 2004, the defense attorney requested the right to depose his expert and the Arbitrator conducted a hearing and granted the request. The deposition was then conducted.

There is no question the second expert for Respondent was retained after the first hearing started in 2004. He did not examine claimant at any time—he simply reviewed records and provided an expert medical opinion. The second expert testified in July 2005. Proofs on the claim weren’t closed for another full year!!! At the final hearing, the evidence deposition of the other defense expert was admitted into evidence.

The Arbitrator found the first accident occurred but wasn’t the cause of any permanent problem. As to the second event, the Arbitrator found the cervical condition related and awarded 35% BAW and a limited amount of TTD. The Commission carefully considered the entire record and found the cervical condition related and increased the award to 50% BAW. The Circuit Court confirmed their ruling.

Then the need for the equivalent of a “mulligan” might begin. Our Appellate Court, Workers’ Compensation Division looked at the language of Section 12 which clearly relates to independent medical examinations or what are called by many veteran WC practitioners “Section 12 examinations” and expressly found the “48-hour rule” for disclosure also applies to records reviews by experts which do not involve examination of the patient. With respect to the members of the Court, we completely disagree with that view of the Act and assert a records review is a records review and not an examination of a patient. Expanding the statutory disclosure requirement for examinations to peer-to-peer medical record reviews isn’t something our Act states and therefore it is hard to imagine that is the outcome our legislature intended. But we caution our readers, they are the Appellate Court and like it or not, this is clearly the new rule in this state.

The second concept we feel might need a “mulligan” is the Appellate Court majority’s new and unprecedented finding the start of any “hearing” cuts off the ability of either party to get further medical evidence even if there is no dispute between the parties “proofs remain open” at the end of a given arbitration hearing. The majority ruling clearly states on page 9 of their decision: “[t]he hearing did not conclude on April 20, 2004, and the proofs remained open at the conclusion of the proceedings that day.” To us, “proofs remained open” should mean additional “proof” of any kind could be offered by either side. Now, seven years after the April 2004 hearing, these parties are supposed to have known proofs weren’t actually open for medical evidence!

Based upon the fact the second expert was retained after the first hearing, the Appellate Court majority struck his opinions from the record. We assert there is nothing in this decision to indicate claimant’s counsel was not fully apprised of his report and didn’t have a full and fair opportunity to cross-examine this witness in front of the Arbitrator to his heart’s content. We assert this is a new and unprecedented evidentiary rule and again, this is being applied seven years after the hearing complained of.

Please note claims such as this take twists and turns. We can foresee an instance in which either side, after a hearing has started and been continued “with proofs open” might want to get updated medical reports or respond to medical evidence offered by the other side. It is also very possible a different attorney might get the claim midway through the litigation and want to change gears from their predecessor(s) and get a top-notch expert or three if settlement discussions broke down. Any change in medical evidence or request for new opinions and experts has to be cleared through the Arbitrator assigned who bears responsibility for fairness to all sides. We find it difficult to imagine the practice of law at the Commission has to be wildly changed with new and unprecedented rules such as this.

The next “mulligan’ could be the majority ruling striking the evidence deposition of the second defense medical expert. This expert testified following the Arbitrator’s ruling on what is called a petition for dedimus potestatem. Basically, the Arbitrator considered the delay in disclosure of this expert’s report and understanding claimant’s counsel had literally months and months to prepare for cross-examination, allowed the deposition to be conducted and the transcript was entered into the record and considered at the time the decision was rendered almost two years later! Following their ruling above, the Appellate Court felt this was violative of the rules because there was no specific finding by the Arbitrator of “good cause shown.’ We assure our readers prior to this ruling, very few Arbitrators might have thought seven years after their failure to specifically outline “good cause shown” in considering a ruling on a dedimus potestatem that failure would cause evidence they felt probative to be stricken. We are fairly confident the minutiae in the last sentence hasn’t been in the statutorily-required annual training of our veteran arbitration staff. We would also bet the vast majority of Illinois arbitrators would assume/presume/expect if they made a ruling on such an evidentiary issue, the concept of “good cause shown” would be implied and not subject to reversal in a situation in which they felt both sides rights were respected.

The final and most amazing “mulligan” is the conclusion by the Appellate Court majority ruling the now-stricken opinion of the second defense expert poisoned the proceedings and required the whole claim to be returned to the Commission for reconsideration without that opinion. We remain amazed, dazed and confused to see such a ruling for a simple and patent reason—expert medical evidence have never been required for the Commission to make a ruling. Longstanding Illinois law says they can draw their own conclusions from the facts and treatment records. The Appellate Court majority says: “the only medical opinion admitted at the hearing that supported the Commission's finding was the testimony of [the second defense expert].” From a purely academic perspective, expert medical opinions are simply that—the physician looks at the medical records and facts and draws a scientific conclusion. In this state, the Workers’ Compensation Commission itself can look at the same medical records and facts and draw its own conclusions! The majority ruling clearly states: “[t]he arbitrator and the Commission found that the claimant's knee conditions were not causally connected to the work accidents, and neither the arbitrator nor the Commission expressly relied on the employer's medical testimony.” From that perspective and with respect to the members of our Appellate Court, we cannot fathom why the Court feels there was a need to provide claimant’s counsel a “mulligan” on the claim for total and permanent disability and send the claim back to the Commission to again review it without an expert medical opinion they could have either accepted or rejected and drawn their own conclusions.

We also note the Appellate Court majority did not feel it necessary to remand the claim for a specific finding in relation to the ruling of the Arbitrator and later the Commission about “good cause shown” in considering the petition for dedimus potestatem. The failure to remand for this reason might cause some criticism as to judicial balance in this ruling. We also feel the failure to remand for that reason might give some observers the impression the Court’s main concern is to implement new and unprecedented evidentiary rules to then have the Commission weigh the claim for total and permanent disability having stripped out all previously admitted evidence for the defense. We will let our readers draw their own conclusions on these academic issues.

The ruling is on the web at: http://www.state.il.us/court/Opinions/WorkersComp/2011/March/1092507WC.pdf

We hope to watch and see what the Commission does when they take a fresh look at this claim at a future time. We appreciate your thoughts and comments. Please do not hesitate to post them on our award-winning blog.