Synopsis: The “buried” IL WC IME report… what happens at trial?

Editor’s comment: While Respondents may technically keep an IME report from the trial record on hearsay grounds, doing so often places the defense posture on tenuous ground.

In Kelly Stork v. Adventist Bolingbrook Hospital, 19 WC 27240, 21 IWCC 0032 (2021) Petitioner worked for Respondent as an Obstetrics Technician, assisting doctors during child birth. At the time of accident, Petitioner was holding a woman’s leg during childbirth and alleged she injured her back and hip.

Respondent obtained two IME’s. However, there was a strong suspicion these were less than supportive to the defense, since it was actually Petitioner’s counsel arguing for admission based on rules of evidence regarding admission of medical “treatment” records and as an “admission of a party opponent” by Respondent Hospital.

Respondent actually objected to admission of their own IME on hearsay grounds. The Arbitrator correctly sustained the objection and did not admit the reports into evidence. IME reports without foundation are not the same as certified treatment records which would otherwise be admitted. Also, IME reports are not technically considered “admission” of Respondent via any agency theory.

We feel the Arbitrator made the correct evidentiary ruling but nevertheless commented at trial that she could infer the rejected reports were in Petitioner’s favor. The Commission affirmed the underlying ruling but noted that no such inference as to the IME report conclusions should be made by the Arbitrator.

Our Takeaway: While true IME reports are not admissible without appropriate foundation testimony, and those opinions are not considered “admissions” by Respondent, the IL WC Commission is unlikely to rule in favor of Respondent under such circumstances where the medical opinions are clearly being withheld from consideration. Only where there may be independent grounds for denial such as an accident dispute, witnesses, surveillance, etc., should such a tactic be considered.


Synopsis: Good to see!! Utilization Review analysis given proper respect by the IL WC Commission.


Editor’s comment: In Avila v. Authentic Brands of Illinois 29 ILWCLB 207 (2021), the IL WC Commission affirmed the effectiveness of Utilization Review as mechanism to place burden on Petitioner for “reasonable” need for care.

It appears Petitioner suffered an undisputed slip and fall while working as a cook for Respondent. His hand, arm and hip injuries involved and were treated with a variety of conservative measures and Respondent obtained four (4) separate Utilization Review opinions which non-certified aspects of care.

Upon hearing the claim, the IL WC Arbitrator summarily… actually in a brief footnote only… dismissed the value of the UR reports and found all care reasonable and necessary.

On Review, the IL WC Commission found the Arbitrator misstated the legal standard and to have failed to properly consider the Utilization Review opinions.

The IL WC Commission cited Section 8.7 of the Act, noting that once UR is invoked by Respondent, it is the medical provider that should make a reasonable effort to provide data to support the recommended medical care.

Also, Petitioner has the burden of proof to establish the reasonableness and necessity of requested care. Therefore, without explanation or support/rebuttal to the UR findings, Petitioner has not met their evidentiary burden.

Our Takeaway: In our view, Utilization Review of questionable medical care remains a valuable claims tool, supported by national and international treatment guidelines, to rebut, block and deny treatment which may be excessive or outright unnecessary. In our view, it is most useful for excessive or unnecessary therapies, DME (durable medical equipment) or other “unorthodox care.” The IL WC Act indicates UR that is properly utilized has “presumptive effect.”

Please also note: Use of UR alone to deny surgery may be insufficient, as the opinion of a treating doctor who examined Petitioner may often be given more weight.

Synopsis: Please don’t hit me!… it may not be covered by IL WC insurance!


Editor’s comment:  As our world appears to grow more violent, claims involving violence may become more common. This current case gives us insight into the IL WC Commission rationale.

In Higueros v. La Villa Banquets, 17 WC 9838, 20 IWCC 0769 Petitioner was a restaurant bus boy who observed an argument in the restaurant parking lot while taking garbage to the dumpster. A man was striking a woman, so the gentleman-Petitioner struck up a conversation with the man during which he told the thug he could not fight/strike others while on the property, that he should leave as the police were coming. As no good deed goes unpunished, the thug turned on Petitioner and struck him in the face with an object.

The IL WC Commission found Petitioner was actually “in the course of” employment, as he was dumping garbage at the time, and rendering aid to the victim of such disturbance does not necessarily remove a worker from the course of employment.

However, the IL WC Commission found Petitioner did not meet the “arising out of” element necessary to impart compensability. Although Petitioner argued he worked as a bus boy until late at night, and he was exposed to a greater risk of responding to altercations involving intoxicated patrons, the Commission found this insufficient to prove “increased risk” and Petitioner did not present evidence as to potential increased crime rates in the area surrounding the bar. The IL WC Commission found it significant that there had never been an incident like this on the Respondent’s premises. There was no obligation to assist patrons either, based on Petitioner’s job description. Benefits were denied.

One wonders if a bouncer would have had better odds at arguing such a confrontation “arises out of” his employment, particularly if the altercation began inside the bar/restaurant.


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Getting Ahead and Staying Ahead of Workers’ Compensation in Illinois

Member Rate: $309

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Early Bird Rate: Save $50 when you register 10 days

prior to the event

Two Dates/Locations:

Wednesday, May 18, 2022

9:00 am – 4:00 pm

NIU Center

Room 250

1120 E. Diehl Road

Naperville, IL 60563


Wednesday, June 15, 2022

9:00am – 4:00pm

Illinois Chamber of Commerce

215 E. Adams St.

Springfield, IL 62701

Continuing Education Credits Offered

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Attorneys from Keefe, Campbell, Biery & Associates will start with the basics of Workers’ Compensation in Illinois, including benefits, the Workers’ Compensation Commission, and handling a claim of injury from the beginning to end.

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You will receive suggestions on pushing your claim targets, using real time examples. Keeping in touch with your workers and how to drive claim closure are key, so these will also be discussed.

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