RG Construction Services v. The Illinois Workers' Compensation Commission

2014 IL App (1st) 132137WC
FILED: December 31, 2014
NO. 1-13-2137WC
IN THE APPELLATE COURT
OF ILLINOIS
FIRST DISTRICT
WORKERS' COMPENSATION COMMISSION DIVISION
RG CONSTRUCTION SERVICES, ) Appeal from
) Circuit Court of
Plaintiff-Appellant,
) Cook County
v. ) No. 12L51429
THE ILLINOIS WORKERS' COMPENSATION )
COMMISSION et al. (Alfredo Martinez, ) Honorable
Appellee). ) Robert Lopez-Cepero,
) Judge Presiding.
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.
OPINION
¶1 On June 12, 2009, claimant, Alfredo Martinez, filed an application for adjustment
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 ex-
penses 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
2014 IL App (1st) 132137WC
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) modi-
fied 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 pur-
suant to Thomas v. Industrial Comm'n, 78 Ill. 2d 327, 399 N.E.2d 1322 (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 Commis-
sion's finding that claimant's left knee condition of ill-being was causally connected to his De-
cember 2008 work accident was against the manifest weight of the evidence; (3) the Commis-
sion'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.
¶4 I. BACKGROUND
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¶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, or-
thopedic 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 fol-
lows:
"We had a long discussion about this before we went on the
record here. We talked about it. I offered the compromise of al-
lowing [the employer's counsel] to—I thought at that time it was
just Dr. Silver's deposition, but now we have 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) re-
quest for immediate hearing, I had requested that [the employer]
pay for the deposition ***. [The employer's counsel] *** has indi-
cated 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
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an individual who has properly filed a motion for immediate hear-
ing. 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 im-
pinged, 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 un-
derwent an x-ray of the right knee and was diagnosed with a knee contusion and shoulder pain.
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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 (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 possi-
bly 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 en-
couraged him to increase his activity level progressively but continued claimant's modified activ-
ity 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
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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 experi-
enced 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 ob-
jections 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.
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2014 IL App (1st) 132137WC
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 possible chondral lesion of the
patellofemoral joint."
Dr. Nam's impression was "[r]ight knee possible medial meniscus tear with possible chondral
lesion of the patellofemoral joint." He discussed his findings with claimant, whom he noted was
"still having persistent pain despite physical therapy." Claimant and Dr. Nam discussed
nonoperative management but elected to proceed with surgery. Dr. Nam recommended "a right
knee arthroscopy, possible partial medial meniscectomy, and possible chondroplasty/abrasion
arthroplasty." Further, he continued claimant's work restrictions.
¶ 15 The exhibit containing Dr. Nam's medical records also contains a letter dated Oc-
tober 5, 2009, which was authored by Dr. Nam and directed to "To Whom It May Concern." In
the letter, Dr. Nam summarized his contact with claimant and additionally stated as follows:
"To a reasonable degree of medical and surgical certainty, alt-
hough I did not treat nor see [claimant] from January 27, 2009[,]
up until June 13, 2009, given that [claimant] was suffering from
the same magnitude of pain involving his right knee secondary to
his injury from December 2008, I do feel that [claimant] would
have not been able to work in a full duty capacity at that time."
¶ 16 On November 24, 2009, claimant began seeing Dr. Silver, who documented each
one of claimant's visits in the form of a letter directed to the attention of Steven Borgstrom at
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"Employers Claim Services." In the letter dated November 24, 2009, Dr. Silver noted claimant
was injured "when he fell off stilts while doing dry walling [in December 2008,] injuring both
knees." He stated claimant's right knee was "much worse" and "[t]he left one ha[d] recovered."
Dr. Silver noted upon examination that claimant had "patellofemoral crepitation and medial joint
line tenderness." His impression was that claimant had "damaged the articular cartilage of the
patella due to his work injury and ha[d] a loose body in the right knee due to the *** work inju-
ry." Dr. Silver recommended arthroscopic surgery "[b]ecause of claimant's persistent symptoms
of almost one years [sic] time." He stated he believed claimant was temporarily disabled. Dr.
Silver's records show he took claimant off work pending surgery.
¶ 17 On August 10, 2010, claimant was examined by Dr. Charles Bush-Joseph at the
request of both parties. Claimant reported falling on December 15, 2008, while wearing stilts
and "suffering injuries to his back, both knees, [and] left shoulder and arm region." Dr. Bush-
Joseph noted: "Apparently all symptoms have resolved except for residual pain of the right knee.
He clearly, on repeated questioning stated that he had no residual symptoms of his back, left
knee[,] or left arm and shoulder." Following an examination and review of claimant's medial
records and previous diagnostic tests, Dr. Bush-Joseph's impression was "[r]esidual
patellofemoral contusion, possible chondral injury with possible medial meniscal tear, right
knee." He opined claimant suffered a work-related injury to his right knee in December 2008
with residual symptoms that warranted further treatment. Dr. Bush-Joseph found "[i]njuries to
[claimant's] left shoulder and left knee ha[d] resolved with no residual." He further believed,
"given the length and duration of symptoms," diagnostic arthroscopy was warranted. Finally, he
stated as follows:
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2014 IL App (1st) 132137WC
"I believe that based on the initial reports of Dr. *** Cohen and
current physical examination findings, [claimant] was most likely
able to work on a full-duty basis with only limitations of kneeling
in the interval. Certainly, his current examination would allow
such work tolerance."
¶ 18 On November 13, 2010, approximately one year after their first meeting, Dr. Sil-
ver performed surgery on claimant's right knee in the form of an arthroscopic partial lateral
meniscectomy and arthroscopic debridement. Surgical records reflect claimant's postoperative
diagnoses were a "[t]orn lateral meniscus" and "[a]rticular cartilage fragmentation of the
patellofemoral joint and medial femoral condyle." On November 23, 2010, Dr. Silver prescribed
claimant physical therapy three times a week for 12 to 16 weeks. He also restricted claimant
from working.
¶ 19 After his surgery, claimant underwent physical therapy and continued to follow
up with Dr. Silver. He testified he also began to notice pain in his left knee. An initial physical
therapy evaluation report, dated November 30, 2010, shows claimant provided a history of his
work accident, stating "he was at work on stilts when he fell, landing directly on both knees." In
addition to right knee symptoms, claimant complained "of left knee pain which he relate[d] to
overuse since the time of injury."
¶ 20 In a letter directed to Borgstrom and dated December 21, 2010, Dr. Silver noted
claimant "continue[d] to improve with regard to his right knee after arthroscopic surgery." How-
ever, he stated claimant's left knee was "deteriorating with medial joint line pain and peripatellar
pain." Dr. Silver noted claimant also injured his left knee as a result of his December 2008, work
accident and recommended an MRI of the left knee. He recommended claimant continue with
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physical therapy for his right knee and limited him "to sedentary work only."
¶ 21 On January 6, 2011, claimant underwent an MRI of his left knee, which revealed
as follows:
"1. A small joint effusion.
2. Large horizontal tear involving the midbody and posterior horn
of the medial meniscus.
3. Intact lateral meniscus, collateral and cruciate ligaments."
In a letter to Borgstrom dated January 22, 2011, Dr. Silver stated claimant's right knee continued
to improve and his left knee MRI demonstrated what appeared to be a torn meniscus. He rec-
ommended left knee arthroscopic surgery once claimant's right knee had recovered. Dr. Silver
continued claimant's work restrictions.
¶ 22 On January 25, 2011, Dr. Silver authored a letter to Borgstrom's attention, stating
claimant's MRI demonstrated a large tear of the medial meniscus, which was "due to his work
injury of [December 2008]." He further stated as follows:
"As you know [claimant] injured both of his knees at that
time. The right one was initially mores [sic] severely painful and
underwent arthroscopic surgery and slowly the left knee pain has
persisted to the point where he can no longer tolerate it. He will
require arthroscopic surgery of his left knee."
On February 22, 2011, Dr. Silver authored a letter directed to Borgstrom's attention. He reiterat-
ed claimant's need for left knee surgery and stated claimant was limited to sedentary work with
occasional walking and standing.
¶ 23 Claimant continued to follow up with Dr. Silver while awaiting approval for sur-
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2014 IL App (1st) 132137WC
gery. Dr. Silver continuously noted improvement in claimant's right knee. He also recommend-
ed continued physical therapy for claimant's right knee, surgery for claimant's left knee, and that
claimant remain off work. In a letter dated March 24, 2011, Dr. Silver stated claimant was tem-
porarily disabled "[b]ecause of the tearing situation with regard to his left knee." Further, he
consistently reiterated his belief that claimant's left knee condition was connected to his Decem-
ber 2008, work accident. On October 6, 2011, Dr. Silver authored a final letter directed to
Borgstrom, stating as follows:
"We are still awaiting approval for [claimant's] arthroscopic
surgery of his left knee related to his work injury of December ***
2008[,] when he injured both knees causing torn medial meniscus
in the left knee. Lacking appropriate arthroscopic surgery he will
be permanently disabled."
¶ 24 On June 23, 2011, claimant was evaluated by Dr. Troy Karlsson at the employer's
request. The employer submitted Dr. Karlsson's report, dated June 28, 2011, into evidence at
arbitration. That report shows claimant provided a history of falling on stilts at work and "land-
ing onto both knees, more so on the right than the left." Claimant reported having some pain in
his left knee initially but that his left knee pain "got much worse after [his] right knee surgery
when he favored that leg somewhat." He stated physical therapy made his left knee worse. Dr.
Karlsson's report states claimant reported "no problems with the right knee at present" but that he
complained of swelling in his left knee and pain "around the kneecap as well as medially."
Claimant asserted his pain increased with walking or physical therapy.
¶ 25 Dr. Karlsson diagnosed claimant with right knee osteoarthritis, lateral meniscal
tear, and chondral fissuring. He determined claimant's left knee had a medial meniscal tear that
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2014 IL App (1st) 132137WC
was degenerative in nature. Dr. Karlsson opined that "at least a portion" of claimant's right knee
problems were caused by his work accident and his right knee arthroscopic surgery was also "re-
lated to the occurrence of December 15, 2008." However, he did not believe the condition of ill-
being in claimant's left knee "to be in any way related to that single fall." In particular, Dr.
Karlsson noted claimant initially complained only of symptoms in his right knee and made no
left knee complaints. Additionally, he noted claimant expressly denied experiencing any symp-
toms in his left knee to Dr. Bush-Joseph in August 2010. Dr. Karlsson found there was "simply
too wide a period of symptom-free times with the left knee and normal exams of the left knee to
relate it to" claimant's work accident. Rather, he opined claimant likely had "a degenerative tear
of the medial meniscus in his left knee, unrelated to his action of December 15, 2008."
¶ 26 Dr. Karlsson further opined claimant was at maximum medical improvement
(MMI) and could return to regular-duty work. He stated he would not recommend any re-
strictions for claimant whatsoever "other than times he may need off following arthroscopy of
the left knee which is unrelated to the work injury."
¶ 27 Claimant testified that after Dr. Nam restricted him from working in June 2009,
no doctor released him to return to work and he had not returned to work in any capacity. He
was also continuing to wait for authorization for the left knee surgery recommended by Dr. Sil-
ver. Claimant testified he felt a lot of pain in his left knee, especially when ascending a staircase.
¶ 28 On December 28, 2011, the arbitrator issued his decision in the matter. He de-
termined claimant sustained accidental injuries to his right knee that arose out of and in the
course of his employment on December 15, 2008. However, relying on Dr. Karlsson's opinions,
the arbitrator determined the condition of ill-being in claimant's left knee was not causally related
his work accident. He found claimant entitled to medical expenses "relating solely to the right
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2014 IL App (1st) 132137WC
knee condition." The arbitrator also awarded claimant 107-4/7 weeks' TTD benefits, finding
claimant was temporarily totally disabled from February 5 to February 11, 2009, and from June
13, 2009, when he first saw Dr. Nam, "through June 28, 2011, or the date Dr. Karlsson found
[claimant] had reached MMI with respect to his work[-]related right knee injury." Finally, the
arbitrator's decision addressed the employer's due process argument, finding its rights had not
been violated or abridged.
¶ 29 Both parties sought review of the arbitrator's decision with the Commission,
which issued its decision in the matter on October 18, 2012. The Commission modified the arbi-
trator's decision to find the current condition of ill-being in claimant's left knee was causally
connected to the work injury he sustained on December 15, 2008, and claimant was entitled to
prospective medical expenses in the form of the arthroscopic left knee surgery recommended by
Dr. Silver. It found claimant "sustained injuries to both knees" when he fell at work in Decem-
ber 2008. The Commission noted claimant's right knee arthroscopy, which had been recom-
mended by two of claimant's treating physicians, was not authorized "for almost two years from
the date of accident" and following "an agreed third opinion by Dr. Bush-Joseph" that "was fa-
vorable to [claimant]." It stated it also relied "on the credible record and the opinion of Dr. Sil-
ver that [claimant's] left knee injury from December 15, 2008[,] progressed with the overuse of
his left leg over several years of right knee impairment, and that he now requires the left knee
surgical treatment recommended by Dr. Silver."
¶ 30 As stated, the Commission awarded claimant an additional 17-3/7 weeks' TTD,
"representing the time period [of] June 30, 2011 through October 18, 2011, during which time
[claimant] remained temporarily totally disabled per Dr. Silver." Further, it stated as follows:
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2014 IL App (1st) 132137WC
"While we are in agreement with the decision of the Arbi-
trator on this issue, we further address [the employer's] constitu-
tional argument. We find no violation [of the employer's] Four-
teenth Amendment right to due process. The Arbitrator offered to
continue the hearing if [the employer] elected to obtain the deposi-
tions of the Drs. Nam and Silver, but [the employer] declined. The
treatment records were therefore properly admitted pursuant to
Section 16 of the Act [(820 ILCS 305/16 (West 2008))]."
One Commissioner issued a concurring opinion, stating as follows:
"I agree with the majority result; however, I do not agree that [the
employer] is required to take depositions of [claimant's] witnesses
at its own expense in order to protect its right to cross[-]examine
these witnesses on opinions that go beyond treatment. The records
should have been admitted only for those purposes permissible un-
der Section 16 of the Act. I, nevertheless, concur in the result be-
cause the Commission could reach the same result without reliance
on the objectionable opinions in the records of Drs. Silver and
Nam."
¶ 31 On June 13, 2013, the circuit court confirmed the Commission's decision. This
appeal followed.
¶ 32 II. ANALYSIS
¶ 33 On appeal, the employer first argues the Commission erred in finding its due pro-
cess rights had not been violated. It notes the medical records of Dr. Nam and Dr. Silver were
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admitted into evidence at arbitration and argues those records improperly included the doctors'
opinions with respect to claimant's ability to work and causation. The employer contends allow-
ing such medical opinions into evidence, when the doctors rendering the opinions had not first
been subject to cross-examination, constituted a due process violation.
¶ 34 "Due process includes the right to present evidence and argument in one's own
behalf, a right to cross-examine adverse witnesses, and impartiality in rulings upon the evidence
that is offered." W.B. Olson, Inc. v. Illinois Workers' Compensation Comm'n, 2012 IL App (1st)
113129WC, ¶ 49, 981 N.E.2d 25. In the context of administrative proceedings, "[d]ue process of
law requires that all parties *** have an opportunity to cross-examine witnesses and to offer evi-
dence in rebuttal." Freeman United Coal Mining Co. v. Industrial Comm'n, 297 Ill. App. 3d 662,
667, 697 N.E.2d 934, 937 (1998) (citing Paoletti v. Industrial Comm'n, 279 Ill.App.3d 988, 998,
665 N.E.2d 507, 513 (1996)). "[A] party claiming that a due process violation has occurred must
establish that it was prejudiced by the alleged violation." All American Title Agency, LLC v. De-
partment of Financial & Professional Regulation, 2013 IL App (1st) 113400, ¶ 36, 994 N.E.2d
636.
¶ 35 Additionally, "[e]xcept when the Act provides otherwise, the Illinois rules of evi-
dence govern proceedings before the Commission or an arbitrator." National Wrecking Co. v.
Industrial Comm'n, 352 Ill. App. 3d 561, 566, 816 N.E.2d 722, 726 (2004). "Evidentiary rulings
made during a workers' compensation proceeding will not be disturbed on review absent an
abuse of discretion." National Wrecking, 352 Ill. App. 3d at 566, 816 N.E.2d at 726.
¶ 36 To support its position in this case, the employer relies heavily on Paoletti, 279
Ill. App. 3d at 999, 665 N.E.2d at 514, wherein this court determined the Commission committed
reversible error by refusing to allow the claimant to present rebuttal evidence to a video surveil-
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lance tape. Although we agree with the propositions set forth in Paoletti regarding due process
and the holding in that case, we find neither that case, nor the other cases cited by the employer,
speak to the precise issues presented here. Initially, we note the record shows the employer was
permitted to cross-examine the only witness to testify at arbitration—claimant. Neither Dr. Nam
nor Dr. Silver were called as a witness at arbitration. Rather, the doctors' medical records were
admitted into evidence. The record further reflects the employer had the opportunity to present
evidence to rebut claimant's case and the employer does not assert otherwise.
¶ 37 The Commission found the employer's due process rights were not violated and
the treatment records of Dr. Nam and Dr. Silver were properly admitted pursuant to section 16 of
the Act (820 ILCS 305/16 (West 2008)). We agree. The Act provides:
"The records, reports, and bills kept by a treating hospital,
treating physician, or other treating healthcare provider that ren-
ders treatment to the employee as a result of accidental injuries in
question, certified to as true and correct by the hospital, physician,
or other healthcare provider or by designated agents of the hospi-
tal, physician, or other healthcare provider, showing the medical
and surgical treatment given an injured employee by such hospital,
physician, or other healthcare provider, shall be admissible without
any further proof as evidence of the medical and surgical matters
stated therein, but shall not be conclusive proof of such matters.
There shall be a rebuttable presumption that any such records, re-
ports, and bills received in response to Commission subpoena are
certified to be true and correct. This paragraph does not restrict,
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limit, or prevent the admissibility of records, reports, or bills that
are otherwise admissible. This provision does not apply to reports
prepared by treating providers for use in litigation." (Emphasis
added). 820 ILCS 305/16 (West 2008).
Thus, pursuant to section 16, the records and reports of a claimant's treating physician, which are
certified as true and correct, are admissible "as evidence of the medical and surgical matters"
contained within the records or reports. 820 ILCS 305/16 (West 2008).
¶ 38 Here, both Dr. Nam and Dr. Silver were claimant's treating physicians. Addition-
ally, on appeal, the employer agrees their records were "subpoenaed and certified pursuant to
section 16" of the Act. The employer does assert that "[i]t is undeniable that the doctors' records
contain opinions beyond medical and surgical matters admissible pursuant to Section 16." How-
ever, it cites no authority for this statement other than section 16 itself. After reviewing the stat-
utory language, we find no indication that the legislature intended to exclude a treating doctor's
opinion, which was offered during the course of the doctor's treatment of the employee and me-
morialized in the doctor's treating records, from the phrase "medical and surgical matters."
¶ 39 It stands to reason that the records and reports of a treating physician are likely to
contain medical opinions relating to a variety of aspects in the care, treatment, and evaluation of
the employee. As a result, we are not persuaded by the employer's position that the simple inclu-
sion of medical opinions within a treating physician's records is sufficient to exclude it from ad-
mission pursuant to section 16. Further, although the employer criticizes the arbitrator's com-
ment that Commission proceedings should be "simple and summary," we note section 16 of the
Act actually contains that explicit phrase. That section provides that "[t]he process and proce-
dure before the Commission shall be as simple and summary as reasonably may be." 820 ILCS
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305/16 (West 2008). The provisions of section 16 at issue in this appeal assist in accomplishing
that goal by easing the foundational requirements for the admission of a treating physician's rec-
ords. Shafer v. Illinois Workers' Compensation Comm'n, 2011 IL App (4th) 100505WC, ¶ 50,
976 N.E.2d 1 (stating the 2005 amendments to section 16 were meant "to ease the foundational
requirements for the admission of medical bills and records").
¶ 40 We note section 16 does not apply to reports prepared by a treating medical pro-
vider for use in litigation. 820 ILCS 305/16 (West 2008). In a single sentence in its opening
brief, the employer concludes that some of the opinions in the records of Dr. Nam and Dr. Silver
were contained within "reports appearing to be prepared in the aid of litigation." However, the
employer offers no basis or argument to support its conclusion, nor does it identify or cite to the
offending "reports." "The 'failure to properly develop an argument and support it with citation to
relevant authority results in forfeiture of that argument.' " Compass Group v. Illinois Workers'
Compensation Comm'n, 2014 IL App (2d) 121283WC, ¶ 33 (quoting Ramos v. Kewanee Hospi-
tal, 2013 IL App (3d) 120001, ¶ 37, 992 N.E.2d 103); Ill. Sup. Ct. R. 341(h)(7) (eff. July 1,
2008) (providing that points not argued in an appellant's brief are waived). We find any argu-
ments by the employer that portions of Dr. Nam's and Dr. Silver's records were prepared in antic-
ipation of litigation have been forfeited due to the employer's failure to present any reasoned ar-
gument to support such a position.
¶ 41 Despite the employer's forfeiture, we note Dr. Nam's letter, dated October 5,
2009, and addressed to "To Whom It May Concern," is the most suspect document for having
been prepared in anticipation of litigation. In the letter, Dr. Nam provided an opinion that does
not appear to have been relevant or necessary to his treatment of claimant as it concerned claim-
ant's inability to work from January to June 2009, a period of time immediately prior to when his
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own treatment and evaluation of claimant began. However, to the extent the Commission com-
mitted error by allowing the letter into evidence, we find no reversible error occurred. The rec-
ord fails to reflect that either the arbitrator or the Commission relied on this particular opinion of
Dr. Nam. In fact, although Dr. Nam opined claimant was unable to work from January to June
2009, and claimant was off work for much of that time, he was not awarded TTD benefits for
that time period except for a short period in February 2009, when he was under work restrictions
at Concentra and had been laid off by the employer. Thus, as Dr. Nam's opinion in his October
5, 2009, letter was not relied upon by the Commission, the employer did not suffer prejudice and
any error was harmless.
¶ 42 Finally, we note that in the context of hearsay objections to medical records the
supreme court has held that "under certain circumstances the probability of accuracy and trust-
worthiness [of a document] may serve as a substitute for cross-examination under oath." United
Electric Coal Co. v. Industrial Comm'n, 93 Ill. 2d 415, 420, 444 N.E.2d 115, 117 (1982). In
United Electric, 93 Ill. 2d at 417-18, 444 N.E.2d at 116, the employer objected to two exhibits
the employee offered into evidence, each of which contained a physician's audiogram and a letter
from the physician to the employee's attorney, containing the physician's opinions as to the na-
ture and cause of the employee's condition. The exhibits were admitted into evidence over the
employer's objections. United Electric, 93 Ill. 2d at 418, 444 N.E.2d at 116. On review, the em-
ployer asserted the exhibits contained hearsay and "should not have been admitted because [the
employer] had no opportunity to subject [the physician] to cross-examination concerning the
statements contained in the reports and because [the physician's] statements were not made under
oath." United Electric, 93 Ill. 2d at 420, 444 N.E.2d at 117. In rejecting the employer's conten-
tions, the supreme court stated as follows:
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2014 IL App (1st) 132137WC
"The reports and audiograms at issue here were based on examina-
tions performed upon [the employee] by a specialist to whom he
had been referred by his family physician for evaluation and treat-
ment. There is no challenge to their authenticity. Moreover, the
audiograms were examined by [the employer's] medical witness,
whose evaluation of them, to some extent, formed the basis for his
opinion concerning the cause of [the employee's] condition. Under
the circumstances we believe the information contained in the
challenged exhibits was trustworthy and conclude that the arbitra-
tor did not err in admitting the exhibits into evidence." United
Electric, 93 Ill. 2d at 420-21, 444 N.E.2d at 117-18.
¶ 43 Here, although the employer did not object to claimant's exhibits on hearsay
grounds, we nevertheless find United Electric instructive. In particular, it stands for the proposi-
tion that the probability of accuracy and trustworthiness of an exhibit may substitute for cross-
examination under oath. Cross-examination of claimant's doctors in this case was exactly what
the employer was seeking. However, like the exhibits in United Electric, claimant's exhibits in
this case included the records of physicians he saw for evaluation and treatment; the authenticity
of the records was not challenged by the employer; and the records were reviewed by the em-
ployer's evaluating physician, Dr. Karlsson. The record reflects the employer had a sufficient
opportunity to rebut claimant's evidence. Under the circumstances presented, we find the em-
ployer failed to show its due process rights were violated and the Commission committed no er-
ror in rejecting the employer's due process argument.
¶ 44 On appeal, the employer next argues the Commission erred in finding claimant's
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2014 IL App (1st) 132137WC
left knee condition of ill-being was causally connected to his December 2008 work accident. He
argues the evidence overwhelmingly shows claimant injured only his right knee in December
2008. The employer points out claimant initially sought and received treatment for only his right
knee, did not begin making left knee complaints until almost two years later in November 2010,
and the record contains no medical evidence to support claimant's overuse theory of causation
with respect to his left knee.
¶ 45 Initially, the employer contends the Commission's decision, which reversed the
arbitrator's finding as to causation and claimant's left knee injury, should be reviewed using an
"extra degree of scrutiny." However, this court has previously declined to apply such a standard,
even when reviewing the Commission's rejection of the arbitrator's credibility determinations.
Hosteny v. Illinois Workers' Compensation Comm'n, 397 Ill. App. 3d 665, 676, 928 N.E.2d 474,
483 (2009); see also R & D Thiel v. Workers' Compensation Comm'n, 398 Ill. App. 3d 858, 866,
923 N.E.2d 870, 877 (2010) (recognizing "the Commission exercises original jurisdiction and is
not bound by an arbitrator's findings" and stating a reviewing court determines "whether the
Commission's credibility findings which are contrary to those of the arbitrator are against the
manifest weight of the evidence"). We similarly decline to apply the extra-degree-of-scrutiny
standard in this case.
¶ 46 "Whether a causal connection exists between a claimant's condition of ill-being
and h[is] work related accident is a question of fact to be resolved by the Commission, and its
resolution of the matter will not be disturbed on review unless it is against the manifest weight of
the evidence." University of Illinois v. Industrial Comm'n, 365 Ill. App. 3d 906, 913, 851 N.E.2d
72, 79 (2006). "It is the Commission's duty to resolve conflicts in the evidence, particularly
medical opinion evidence." Land & Lakes Co. v. Industrial Comm'n, 359 Ill. App. 3d 582, 592,
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2014 IL App (1st) 132137WC
834 N.E.2d 583, 592 (2005). "The test is whether the evidence is sufficient to support the Com-
mission's finding, not whether this court or any other tribunal might reach an opposite conclu-
sion." Land & Lakes, 359 Ill. App. 3d at 592, 834 N.E.2d at 592. "For the Commission's deci-
sion to be against the manifest weight of the evidence, the record must disclose that an opposite
conclusion clearly was the proper result." Land & Lakes, 359 Ill. App. 3d at 592, 834 N.E.2d at
592.
¶ 47 Here, as stated, the Commission determined claimant's left knee condition of ill-
being was causally connected to his December 2008 work accident. The record supports that
decision, showing claimant fell while working on stilts on December 15, 2008, and landed on
both of his knees. Prior to that date, he had no history of knee problems. Following his accident,
claimant immediately began receiving treatment for his right knee where the pain was most
prominent and, ultimately, underwent right knee surgery. He also consistently reported an acci-
dent history of falling onto both of his knees and, on February 11, 2009, Dr. Cohen diagnosed
claimant with "a contusion to both knees." Claimant testified he experienced pain in both knees
following his lay off from the employer in February 2009. In November 2010, after his right
knee surgery, claimant's medical records show he began reporting worsening symptoms in his
left knee.
¶ 48 Although the record does not support the Commission's statement that Dr. Silver
opined claimant's left knee "progressed with overuse of his left leg over several years of right
knee impairment," Dr. Silver's records do show he believed claimant's left knee condition was
causally related to his December 2008 accident. As the employer points out, its examining phy-
sician offered an opposing opinion as to causation. However, conflicts in the medical evidence
were for the Commission to resolve. We cannot say an opposite conclusion from that of the
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2014 IL App (1st) 132137WC
Commission was clearly apparent from the record. Its decision as to causation was not against
the manifest weight of the evidence.
¶ 49 The employer next challenges the Commission's TTD award. It argues that be-
cause claimant's left knee condition was not causally related to his work accident claimant was
only entitled to TTD benefits from February 5 to February 10, 2009, and from November 13,
2010, the date of claimant's right knee surgery, to March 24, 2011, when the employer contends
claimant's right knee had recovered from surgery and, per Dr. Silver, claimant remained off work
due to only his left knee condition of ill-being.
¶ 50 "A claimant is temporarily and totally disabled from the time an injury incapaci-
tates him from work until such time as he is as far recovered or restored as the permanent charac-
ter of her injury will permit." Shafer, 2011 IL App (4th) 100505WC, ¶ 45, 976 N.E.2d 1. "The
issues of whether an employee is temporarily totally disabled, as well as the period of such disa-
bility, are questions of fact for the Commission, and its decision will not be disturbed on review
unless it is against the manifest weight of the evidence." Kishwaukee Community Hospital v.
Industrial Comm'n, 356 Ill. App. 3d 915, 925, 828 N.E.2d 283, 293 (2005).
¶ 51 Here, the arbitrator awarded claimant 107-4/7 weeks' TTD benefits, representing
the time periods of (1) February 5, 2009, when claimant was laid off from the employer to Feb-
ruary 11, 2009, when he was released by Dr. Cohen to return to full-duty work and (2) June 13,
2009, when Dr. Nam examined claimant and determined him unable to work to June 28, 2011,
when claimant was evaluated by Dr. Karlsson and found to have reached MMI. After modifying
the arbitrator's decision with respect to causal connection, the Commission awarded claimant an
additional 17-3/7 weeks' TTD benefits, representing the time period of June 30, 2011, through
October 18, 2011, "during which time [claimant] remained temporarily totally disabled per Dr.
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2014 IL App (1st) 132137WC
Silver." The TTD periods awarded by the Commission were supported by the record, which
contains the off-work restrictions of claimant's treating physicians. Additionally, the employer's
main challenge to the Commission's TTD award is based on its contention that the Commission's
causation decision was against the manifest weight of the evidence. As discussed, we disagree
with that contention. We find the Commission's TTD award is supported by the record and not
against the manifest weight of the evidence.
¶ 52 Finally, the employer argues the Commission's award of medical expenses is
against the manifest weight of the evidence. "Whether medical expenses are reasonable and nec-
essary is a question of fact for the Commission, and the Commission's determination will not be
overturned unless it is against the manifest weight of the evidence." Shafer, 2011 IL App (4th)
100505WC, ¶ 51, 976 N.E.2d 1.
¶ 53 First, the employer again bases its challenge to the Commission's medical expens-
es award on the same due process and causation arguments already raised and rejected. For the
same reasons already stated, its arguments fail. Second to the extent the employer argues claim-
ant was required to present the testimony of his treating physicians to establish the reasonable-
ness and necessity of his claimed expenses, we disagree.
¶ 54 In Shafer, 2011 IL App (4th) 100505WC, ¶ 51, 976 N.E.2d 1, this court rejected a
similar argument by an employer. Noting the reasonableness and necessity of medical expenses
was a question of fact for the Commission, we pointed out that the claimant's medical records
documented her injuries, symptoms, "and the medical procedures that her doctors believed were
necessary and appropriate to treat her pain and injuries." Shafer, 2011 IL App (4th) 100505WC,
¶ 51, 976 N.E.2d 1. We then stated as follows:
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2014 IL App (1st) 132137WC
"The employer presented no evidence suggesting that these treat-
ments were not necessary to cure or relieve the effects of [the]
claimant's injury. Nor did it present any evidence showing that
these bills were unreasonable in light of what other healthcare pro-
viders typically charge for the same services in the relevant geo-
graphical area. Thus, we cannot say that the Commission's finding
that the medical treatments performed by the claimant's doctors
and the prospective medical treatments they recommended were
reasonable and necessary was against the manifest weight of the
evidence." Shafer, 2011 IL App (4th) 100505WC, ¶ 51, 976
N.E.2d 1.
¶ 55 The same rationale set forth in Shafer applies here. Claimant's medical records
documented his injuries, symptoms, and treatment. The employer presented no evidence show-
ing the treatments claimant received were unnecessary or that amounts billed were unreasonable.
As a result, the record contained sufficient evidence to support the Commission's award of medi-
cal expenses and its decision was not against the manifest weight of the evidence.
¶ 56 III. CONCLUSION
¶ 57 For the reasons stated, we affirm the circuit court's judgment confirming the
Commission's decision and remand for further proceedings pursuant to Thomas, 78 Ill. 2d 327,
399 N.E.2d 1322.
¶ 58 Affirmed and remanded.
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