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RG Constr. Servs. v. The Illinois Workers' Compensation Commission

Court of Appeals of Illinois, First District, Workers' Compensation Commission Division

December 31, 2014


Page 924

Appeal from Circuit Court of Cook County. No. 12L51429. Honorable Robert Lopez-Cepero, Judge Presiding.

FOR APPELLANT(s): Julie A, Garrison, Maciorowski, Sackmann, & Ulrich, Chicago, IL.

FOR APPELLEE(s): Law Offices of Corti and Aleksy, Chicago, IL.

JUSTICE HARRIS delivered the judgment of the court, with opinion. Presiding Justice Holdridge and Justices Hoffman, Hudson, and Stewart concurred in the judgment and opinion.


Page 925


[¶1] On June 12, 2009, claimant, Alfredo Martinez, filed an application for adjustment

Page 926

of claim pursuant to the Workers' Compensation Act (Act)(820 ILCS 305/1 to 30 (West 2008)), seeking benefits from the employer, RG Construction Services, for alleged work-related injuries to both knees. Following a hearing, the arbitrator determined claimant sustained injuries arising out of and in the course of his employment on December 15, 2008, to only his right knee and awarded him (1) 107-4/7 weeks' temporary total disability (TTD) benefits and (2) medical expenses associated with claimant's right knee/leg condition. Additionally, the arbitrator rejected the employer's contention that its fourteenth amendment (U.S. Const., amend. XIV) due process rights were violated by the admission of medical records that contained the medical opinions of two of claimant's treating physicians.

[¶2] On review, the Illinois Workers' Compensation Commission (Commission) modified the arbitrator's award, finding claimant injured both knees at work on December 15, 2008, and the current condition of ill-being in claimant's left knee was also causally connected to his work accident. The Commission determined claimant was entitled to (1) prospective medical expenses for the left knee arthroscopic surgery recommended by one of claimant's doctors, (2) an additional 17-3/7 weeks' TTD benefits, and (3) outstanding medical expenses related to both his left and right knees. Although in agreement with the arbitrator's rejection of the employer's due process argument, the Commission further addressed the issue, finding no due process violation and stating claimant's medical records were properly admitted at arbitration pursuant to section 16 of the Act (820 ILCS 305/16 (West 2008)). The Commission otherwise affirmed and adopted the arbitrator's decision. It also remanded the matter to the arbitrator for further proceedings pursuant to Thomas v. Industrial Common, 78 Ill.2d 327, 399 N.E.2d 1322, 35 Ill.Dec. 794 (1980).

[¶3] On judicial review, the circuit court of Cook County confirmed the Commission's decision. The employer appeals, arguing (1) it was denied its due process right to cross-examine witnesses and present rebuttal evidence by the admission into evidence of claimant's medical records, which contained the opinions of two of claimant's treating physicians; (2) the Commission's finding that claimant's left knee condition of ill-being was causally connected to his December 2008 work accident was against the manifest weight of the evidence; (3) the Commission's TTD award was against the manifest weight of the evidence; and (4) the Commission's award of medical expenses was against the manifest weight of the evidence. We affirm.


[¶5] On October 18, 2011, an arbitration hearing was conducted in the matter. Prior to the presentation of evidence, the employer asked that the matter not proceed with a hearing on that day. It asserted that, pursuant to the fourteenth amendment to the U.S. Constitution (U.S. Const., amend. XIV), it was entitled to cross-examine two of claimant's treating physicians, orthopedic specialists Dr. Ellis Nam and Dr. Ronald Silver, with respect to opinions contained in their medical records, which claimant wanted to have admitted into evidence.

[¶6] With respect to the employer's due process argument, the arbitrator stated as follows:

" We had a long discussion about this before we went on the record here. We talked about it. I offered the compromise of allowing [the employer's counsel] to--I thought at that time it was just Dr. Silver's deposition, but now we have

Page 927

Dr. Nam's and Dr. Silver's. But I would be willing to allow a continuance here, but I had asked since it was at the [employer's] request and given that [claimant] is here and they have also rights and they also have fully conformed with the Statute with respect to the Section 19(b) request for immediate hearing, I had requested that [the employer] pay for the deposition ***. [The employer's counsel] *** has indicated he didn't feel it's his obligation to pay for the deposition of the treating witness.
It's my opinion we have certain provisions under the Act, this is an administrative agency, it's supposed to be simple and summary proceedings. This is the second setting for this case for an individual who has properly filed a motion for immediate hearing. I offered the opportunity to take this deposition, but I felt it only fair that the [employer] pay for it since I think under the Act the only thing that [claimant] needs to do is have a certified record or have these records via subpoena which I understand [he has] adhered to those requirements."

The arbitrator noted the employer declined his offer and he would allow the matter to proceed. He further stated he did not believe the employer's fourteenth amendment rights were being impinged, noting the employer would have the ability to provide rebuttal evidence in the form of reports from its examining physicians.

[¶7] The matter next proceeded with the arbitration hearing and the record reflects the parties agreed claimant sustained accidental injuries that arose out of and in the course of his employment on December 15, 2008. Claimant, who testified with the aid of an interpreter, stated he worked for the employer as a drywall finisher. On the date of his accident, he was performing his work on stilts, which were affixed to his feet and lifted him approximately four feet off the ground. While on the stilts, claimant stepped on a pipe or piece of trash and slipped and fell. He testified he struck the ground with both of his knees and his right shoulder.

[¶8] Claimant testified he reported his accident and, the following day, the employer sent him to Concentra Medical Center (Concentra). Medical records reflect claimant was seen at Concentra on December 16, 2008. He reported falling at work from a height of five feet, " hit[ting] his knees," and " hurt[ing] [his] right shoulder and right knee." Records note claimant described mild pain in his shoulders but that his prominent pain was in his right knee. He underwent an x-ray of the right knee and was diagnosed with a knee contusion and shoulder pain. Claimant was given Ibuprofen and modified activity restrictions of no prolonged standing or walking longer than tolerated, no climbing stairs or ladders, no squatting, and no kneeling. He returned to work for the employer in a light-duty capacity. Claimant continued to follow up at Concentra and, pursuant to recommendation, underwent physical therapy.

[¶9] On December 22, 2008, Concentra records reflect claimant was progressing with therapy and reported " resolution of symptoms and restoration of pre-injury status." On January 2, 2009, records show claimant reported improvement but that he had " persiste[nt] pain of the medial side of the knee which [was] worse and severe with crossing [his] leg and walking." Claimant described his pain as moderate and aching and stated it radiated to his right thigh. He was again assessed as having a knee contusion and given modified activity restrictions of no pro-longed standing or walking for longer than tolerated. A magnetic resonance imaging

Page 928

(MRI) was recommended. On January 20, 2009, an MRI was performed on claimant's right knee, which showed " [s]oft tissue edema at the infrapatellar fat pad with suggestion of calcification or possibly foreign body at the inferomedial aspect of the infrapatellar fat pad."

[¶10] At a follow-up appointment on January 27, 2009, claimant reported his symptoms were the same and denied any knee pain or problem prior to his work accident. His doctor encouraged him to increase his activity level progressively but continued claimant's modified activity restrictions. He also referred claimant to an orthopedic surgeon.

[¶11] On February 11, 2009, claimant returned to Concentra and saw Dr. James Cohen. Dr. Cohen recorded claimant's accident history as walking on stilts at work and falling " directly onto both knees." He noted claimant reported pain " at the anterior aspect of his knees" and that claimant had recently been laid off by the employer. Dr. Cohen examined both of claimant's knees and reviewed his x-ray and MRI, the latter of which he found to be " essentially normal except for some edema in the patellar tendon fat pad area." His impression was that claimant " had a contusion to both knees and *** some mild chondromalacia patella." Dr. Cohen released claimant to return to full-duty work and recommended Ibuprofen. Claimant testified he did not return to work because he had been laid off. He described his condition at that time, stating both of his knees " were hurting *** a lot." He asserted he could not go up stairs because he experienced too much pain and his knees hurt more at night.

[¶12] Claimant testified he did not seek medical treatment again until June 13, 2009, when he began seeing Dr. Nam. Then, beginning November 24, 2009, he sought treatment from Dr. Silver. At arbitration, claimant sought to admit exhibits containing both doctors' medical records. The record reflects the employer objected, raising the same arguments it raised at the outset of the arbitration hearing regarding its inability to cross-examine either doctor with respect to medical opinions contained within those records. The arbitrator overruled the employer's objections and the doctors' medical records were admitted into evidence.

[¶13] Dr. Nam's records reflect he saw claimant on June 13, 2009, for a chief complaint of right knee pain. Claimant reported he fell onto his right knee at work in December 2008, and experienced persistent pain on a daily basis. Dr. Nam noted that, although he did not have the report from claimant's January 2009 MRI and the MRI was poor in quality, he did feel claimant had " evidence of abnormal medial meniscus." His impression was " [r]ight knee rule out medial meniscus tear." Dr. Nam stated claimant needed a better imaging study. He recommended an MRI arthrogram of claimant's right knee. Dr. Nam also determined claimant was unable to work " until further notice." On August 15, 2009, claimant underwent an MRI arthrogram.

[¶14] On August 22, 2009, claimant returned to Dr. Nam who noted claimant continued to have persistent pain in his right knee " with some catching and giving away symptoms." Dr. Nam stated he reviewed claimant's August 2009 MRI and noted as follows:

" As I pointed out to [claimant], he does have abnormal appearance of the medial meniscus and I am not sure if this represents a true medial meniscus tear. He also has some abnormal appearance of patellofemoral joint representing a ...

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