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WCLA MCLE Is an IME Report Admissible Greaney Its Aftermath

Is An IME Report Admissible?. Section 12 report, not Section 19(c)50 Ill. Adm. Code 7030.70 (a):

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WCLA MCLE Is an IME Report Admissible Greaney Its Aftermath

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    1. WCLA MCLE Is an IME Report Admissible? Greaney & Its Aftermath Richard E. Aleksy Corti, Aleksy & Castaneda & Kevin Reid Garofalo, Schreiber, Hart & Storm May 29, 2008 Chicago, IL

    3. Objections to Admissibility Authenticity Lack of foundation Hearsay: a statement made out of court being offered to show the truth of the matters asserted therein; Cleary & Graham, Handbook of Illinois Evidence, Section 801 But not hearsay if the statement was made by an agent authorized to speak on behalf of a party opponent, and is thus a vicarious admission of the party opponent; Cleary & Graham, Section 802.9

    4. Nollau Nurseries, Inc. 32 Ill.2d 190, 204 N.E.2d 745 (1965) Petitioner “was thereafter referred, by the workmen’s compensation carrier, to a Dr. McCarroll of St. Louis. He reported to that physician, who performed an operation on the leg in October, 1961.” “Over the employer’s objection the claimant was allowed to testify to what Dr. McCarroll told him after the examination, and also over objection the arbitrator admitted into evidence a medical report by that doctor. The testimony and the report were ruled admissible on the ground that the doctor was an agent of the employer, and that they constituted admissions against interest.” “We find no error in this.”

    5. Keystone Steel & Wire Company 42 Ill.2d 273, 246 N.E.2d 228 (1969) Respondent “complains that error was committed by the arbitrator in allowing the Petitioner to introduce in evidence, over its objection, the medical report of Dr. Robert Sutton, who examined the Petitioner at the request of the Respondent. Dr. Sutton did not furnish treatment nor did he testify.” “Having reviewed the report concerned, we are of the opinion that the admission of the report into evidence was proper under this court’s decision in Nollau Nurseries…” “Our statement in Nollau was not limited to treating doctors…We deem that the statement was properly admissible as an admission against interest…” Petitioner had underlined “complete foot drop”

    6. Lagerstrom v. Dupree 185 Ill.App.3d 1020, 542 N.E.2d 73, 134 Ill.Dec.73 (1989) Plaintiff sued WC IME Dr. Dupree for medical malpractice for improper return to work Summary judgment for Dr. Dupree affirmed on the basis of exclusive remedy protection; Section 5(a) of WCA extends to “agents or employees” of employers or insurers “The IL Supreme Court has held that a physician who is retained by a workers’ compensation insurance carrier to examine the fitness of a claimant is deemed an agent of the insurance carrier…” citing Nollau and Keystone

    7. Taylor v. Kohli 162 Ill.2d 91, 642 N.E.2d 467, 204 Ill.Dec. 766 (1994) Plaintiff files medical malpractice case Plaintiff’s expert’s unfavorable deposition testimony read to the jury “Plaintiff argues that an expert witness is not an agent of the party calling him, and therefore cannot make admissions against the calling party’s interest. We agree.” “Since we rule as a matter of law that an expert witness is not per se an agent of the party calling him”…, his statements do not “serve as admissions against that party’s interest.” “We do not believe that the concept of agency necessarily follows…more accurately described as an independent contractor…the control element so crucial to agency is at all times missing.”

    8. Kraft General Foods 287 Ill.App.3d 526, 678 N.E.2d 467, 223 Ill.Dec. 119 (1997) “At claimant’s attorney’s request, Dr. Coe examined the claimant.” “Employer argues that Dr. Coe’s opinion is binding on claimant as an admission against interest.” “While it is true that Nollau Nurseries and its progeny* hold that a doctor hired by a party was that party’s agent and his or her opinions were admissions against interest of that party, the issue in each of these cases was the admissibility of the statements as exceptions to the hearsay rule. None of these cases discuss any binding nature of the statements. For this reason alone, the cases are inapplicable to the instant situation where Dr. Coe’s opinion was admitted without objection.” Cites Taylor v. Kohli, for no control/no agency: “The agency principles and reasoning would apply to the workers’ compensation setting as well.”

    9. *Nollau Nurseries Progeny Keystone Walden v. IIC, S.Ct. 445 N.E.2d 326 (1983) Tee-Pak v. IIC, 490 N.E.2d 170 (1986) Kress Corp. v. IIC, 545 N.E.2d 1046 (1989) Adams v. IIC, 614 N.E.2d 533 (1993)

    10. Greaney v. Industrial Commission 358 Ill.App.3d 1002, 832 N.E.2d 331, 295 Ill.Dec.180(2005) DA 6-15-1998, laborer has back injury treated by Drs. Atkenson, Alvi, Earman, Lorenz & Hung Section 12/IME’s with Dr. Brackett: 2/2/99; 5/4/99; 3/6/01 Over Respondent’s “hearsay, foundation and authenticity objections,” Petitioner introduced Dr. Brackett report of 3/6/01: “65 lb. restriction is appropriate; Petitioner was not magnifying; & might need fusion”

    11. Greaney IWCC finally awards benefits to Petitioner (03 IIC 0864) Circuit Court confirms, Petitioner files appeal and Respondent cross-appeals Respondent “argues that the report of Dr. Brackett was hearsay and should not have been admitted into evidence. Before addressing this argument, we note that while the Respondent objected to the admission of Dr. Brackett’s report at the arbitration hearing on the grounds of hearsay, lack of foundation and authenticity, it only challenges the admission of Dr. Brackett’s report before this court on hearsay grounds.”

    12. Greaney “Relying on Nollau Nurseries, the arbitrator, over Respondent’s objections, admitted Dr. Brackett’s report into evidence as an admission against Respondent’s interest. Citing Taylor v. Kohli, Respondent argues that Dr. Brackett was not its agent and, therefore, the arbitrator and Commission erred in admitting the report for the basis stated. (Citing Taylor & Kraft General Foods). Accordingly, we find that Dr. Brackett was not Respondent’s agent and therefore his report does not constitute an admission against Respondent’s interest...We conclude therefore that the Commission abused its discretion in admitting and considering Dr. Brackett’s report over Respondent’s hearsay objection.”

    13. Greaney’s Aftermath Westin Hotel v. Industrial Commission, 372 Ill. App.3d 527, 865 N.E.2d 342, 310 Ill.Dec. 18 (2007): “In Greaney, we held that a party’s independent medical expert is not per se an agent of the party who hired him and therefore, the expert’s opinions are not admissible as admissions against that party’s interest.” (Admission of Dr. Levin’s report was harmless error.)

    14. IWCC Cases Citing Greaney Jerz v. Monarch, 08 IWCC 0213, Dr. Bernstein’s report kept out Hayes v. SBC, 08 IWCC 0049, Dr. Kevin Walsh’s report kept out Steele v. Danville Metal, 07 IWCC 1399, Dr. Nagle’s report kept out Spilker v. IPC, 06 IWCC 0757, Dr. Orth’s report kept out

    15. Issues After Greaney Are there other ways to get IME reports in? Penalties? Part of treating records? Part of UR report? Does Greaney apply to: Voc Rehab reports? (See Piacenza v. Ugolini, 01 IIC 0448, allowing admission of voc rehab reports under Nollau Nurseries); Nurse case manager reports? UR reports? Does Lagerstrom still apply? Are IME’s liable for malpractice? Does this impose additional obligations on WC lawyers?

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