Dely in obtaining examination topples request for continuance
In denying benefits, the Illinois Workers' Compensation Commission held that the employee failed to demonstrate good cause for a cointuance to obtain an independent medical examination.
Case name: Neal v. Rockford Memorial Hospital, 17 ILWCLB 91 (Ill.W.C.Comm.2009).
Neal alleged she suffered a repetitive trauma injury to her hands and wrists due to her cleaning duties for her employer. The arbitrator denied benefits. In affirming, the Illinois Workers' Compensation Commission clarified the issue regarding Neal's request for a continuance. The arbitrator heard the claim on May 15, 2008. Before any evidence was taken, Neal's attorney requested a continuance to obtain an IME. The employer's attorney objected because Neal's former attorney had represented, prior to the March 23, 2007, deposition of the employer's Section 12 examiner, that he did not intend to have Neal examined. Relying on Marks v. ACME Industries, in which the Commission held that the "hearing" referred to in Section 12 commences with the deposition of a treating doctor, the arbitrator denied Neal's request.
On review, Neal pointed out that the Illinois Appellate Court, in City of Chicago v. IWCC, recently found Marks to be inconsistent with the underlying purpose of Section 12. Neal argued that the procedural status of her claim was identical to that in City of Chicago and that the Arbitrator erred as a matter of law in foreclosing her right to obtain an examination. Neal also argued that she established good cause for a continuance, as she retained a new attorney after the depostion of the employer's Section 12 examiner and that her new attorney did not have adequate time prior to trial to determine the need for, and schedule, an examination.
Although Neal correctly identified Marks as no longer valid precent, the Illinois Workers' Compensation Commission did not view the status of the claims in City of Chicago as indentical to that of the instant claims. In City of Chicago, the controversey involved a Section 12 examination report that was obtained after a treating physician's deposition but tendered to the claimant's attorney several months before trial. The Chicago court held that the Commission erred in excluding the report as a matter of law. However, in this case, Neal's attorney did not ask for time to obtain an examination until the day of trial. The Commission concluded that the attorney had adequate time to obtain an examination prior to trial. Accordingly, Neal failed to demonstrate good cause for a continuance.
