The Illinois Appellate Court Fuled Ex Parte Communications Between Injured Worker’s Health Care Provider And Employer Or Its Legal Representative Were Prohibited By Public Policy And Existing Case Law

In response to a certified question, the Appellate Court of Illinois held that ex parte communications between an injured worker’s health care provided and employer or its legal representative were prohibited by operation of the doctrine enunciated in Petrillo v. Syntex Laboratories and the public policy against such communications described in Best v. Taylor Machine Works.

Claimant alleged she injured her left wrist due to repetitive trauma at work. During litigation, defendant sent a letter to claimant’s doctor, along with a copy of a videotape of the work site, a job description and another doctor’s report indicating claimant’s injuries were not work-related. In the letter, defendant advised the doctor of the employer’s theory of defense and asked the doctor if the evidence provided changed his original position that work caused claimant’s injury. Following this communication, the doctor issued a “clarified”opinion finding no causal connection between claimant’s injury and her work.

At hearing, claimant argued against admission of the videotape, the job description and the doctor’s clarified opinion. The arbitrator agreed, finding defendant violated Petrillo in communicating with the doctor without claimant’s permission. In a decision summarized at 7 ILWCLB 1035, the Commission ruled defendant violated Petrillo in communicating with the doctor. However, it vacated and remanded the arbitrator’s decision, holding the arbitrator should have allowed the videotape and job description.

On remand, the arbitrator again excluded the new job description and the doctor’s revised opinion, but admitted the videotape. The Commission affirmed.

The Circuit Court of McHenry County

certified the questions of ex parte conferences between an injured worker’ health care provided and the employer or its legal representative are prohibited by: 1) operation of the doctrine enunciated in Petrillo; 2) the right to privacy found in the Illinois Constitution; 3_ Section 8-802 of the Illinois Rules of Evidence; 4) Administrative Rule 7110.70 of the Illinois Industrial Commission; 5) the common law physician-patient privilege; or 6) the public policy against such communications described in

Best v. Taylor Machine Works.

The Appellate Court of Illinois-2nd District held that ex parte communications between an injured worker’s health care provider and the employer or their legal representative are prohibited by operation of the doctrine enunciated in Petrillo and the public policy against such communications as described inBest. Accordingly, the court answered subparts 1 and 6 of the certified questions in the affirmative. The court found it unnecessary to answer the remaining subparts of the questions, but noted that the prohibition against ex part communication articulated in Petrillo and ratified in Best is deeply rooted in both the common-law physician-patient privilege and the right to privacy found in the Illinois Constitution. The Court further noted that the Workers’ Compensation Act and the rules of the Commission provide sufficient methods for an employer to obtain timely information necessary for the fair and efficient resolution of claims and provide adequate and sufficient means for gathering necessary medical information while still honoring the sanctity of the physician-patient relationship.

In a specially concurring opinion, Presiding Justice McCullough noted the discovery rules discussed inBest and Petrillo did not apply in Workers’ Compensation cases. The justice explained that provisions of Section 8(a) do not allow the employer appropriate methods to determine merits of the claim, its nature and its extent. The justice further noted the admissibility of evidence is subject at all times to the discretion of the rulings of the Commission.

Dear valued clients:

Our office is aware of the Covid 19 situation and is taking measures to keep our staff safe during these difficult times. For the immediate future, we will not be meeting in person with any of our clients. However, all of our clients can reach us by telephone, email at chicagolegalnet@yahoo.com or by facsimile at 630-451-9477. Our office remains open and we will continue our work as usual. We feel this is best for everyone concerned.

If you have recently suffered an injury from a work related accident and would like to retain our services, the entire process can be done by telephone, electronic and/or regular mail. We have operators available 24 hours a day, seven days a week. Please feel free to contact us anytime at 312-661-0450 and speak with one of our experienced and knowledgeable attorneys. Once this is has passed, we will gladly meet with you in person to answer any questions or address any concerns you may have.

Thank you for your patience and consideration. Be safe and stay healthy!

Regards

Donald Fohrman
Donald W. Fohrman & Associates, Ltd.