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 in Best. 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 in Best 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.
