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Necessary Doctor Disclosures Under Section 12 of the Illinois Workers’ Compensation Act
In Borst, the Appellate Court made a move to reduce tedious Ghere objections designed to exclude doctor testimony. The Appellate Court’s decision in Borst v. Ill. Workers’ Comp. Comm’n, 2024 IL App (2d) 230124WC-U clarifies what and when an employer’s examining doctor is required to disclose to the petitioner before a hearing under Section 12 of the Act.
The petitioner in Borst alleged that he sustained a repetitive trauma injury to his low back while working for respondent, Dow Chemical. Though claimant had issues with his back leading to a microdiscectomy before his employment, he alleged that his condition worsened due to his regular job tasks of heavy lifting, stooping, and bending.
The petitioner underwent a lumbar fusion with his treating physician. This physician did not offer any opinion on causal connection until a year after treatment. The causation opinion came in response to a letter of solicitation from the petitioner’s attorney.
Petitioner was examined twice by a neurologist at the request of the respondent under §12 of the Act. The neurologist concluded that petitioner had a very extensive degenerative lumbosacral disease that spanned nearly half of his life. After reviewing medical records, claimant’s job description, and videos of the job site, the §12 examiner opined that petitioner suffered no repetitive trauma injury because he had no repetitive job tasks. The neurologist further concluded that petitioner’s work had not affected his degenerative condition.
The case proceeded to trial, and the Arbitrator determined that petitioner sustained an accident that arose out of and in the course of his employment and that his current condition of ill-being was causally related to his employment. On review, a majority of the Commission reversed, finding that petitioner failed to prove accident and causation. The Circuit Court affirmed the findings of the Commission.
At the Appellate court, petitioner argued that the neurologist’s testimony should have been excluded because his opinion was determined in part by his review of videos of claimant’s work duties, and respondent failed to provide petitioner with the videos he reviewed at least 48 hours before the neurologist’s deposition.
Section 12 of the Act states:
“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 the employee, or his representative as soon as practicable but not later than 48 hours before the case is set for hearing. If such surgeon refuses to furnish the employee with such statement to the same extent as that furnished to the employer said surgeon shall not be permitted to testify at the nearing next following said examination.” 820 ILCS 305/12 (West 2012).
Petitioner cited to Ghere v. Industrial Comm’n, 278 Ill. App. 3d 840, 663 N. E.2d 1046, 215 Ill. Dec. 532 (1996), which held that §12 of the Act excluded the opinion of a treating or examining physician who had been disclosed to the opposing party at least 48 hours prior to when the case is scheduled for hearing. Ghere, 278 Ill. App. 3d at 844-46. The Ghere Court found that disclosures are necessary within the 48 hour window to prevent a party from being surprised by opposing medical testimony. Id at 45.
The Appellate Court in Borst interpreted this passage to mean that a doctor is only required to disclose a statement in writing of the condition and extent of the injury; the doctor is not required to provide every item they reviewed to reach their opinion. Thus, the Neurologist was under no obligation to share the videos he reviewed of claimant’s job duties; he was only obligated to share his report. The petitioner did not allege that the Neurologist failed to share his reports with at least 48 hours before the hearing. Therefore, his testimony was properly admitted.
The Court in Borst interpreted the “hearing” referenced in §12 to refer to the Arbitration hearing itself. Any disclosures by the doctor must be made within 48 hours prior to the Arbitration, not the physician’s deposition. Here, claimant makes a losing argument either way.
I believe this holding will serve to save time spent over unnecessary arguments to exclude opinions, arguments which miss the point of the passage in §12. The passage is meant to prevent either party from being ambushed with medical opinions they had no chance to review. The Appellate Court here saves time and resources for both parties by not requiring doctors to disclose every item and detail they reviewed in determining their opinion. Instead, each party can rely on the opinion itself.