Element of surprise entitles Illinois Workers a continuance
Based on the element of surprise due to the defendant's last-minute refusal to tender the Section 12 examination reports to the claimant, the arbitrator erred in denying the claimant's request for a continuance. Also, the Illinois Workers' Compensation Commission increased the arbitrator's permanent disability award from 10 percent to 50 percent loss of use of the right leg under Section 8(e)12 of the Ilinois Workers' Compensation Act.
Case name: Giunta v. Chicago, City of, 17 ILWCLB 140 (Ill.W.comm. 2009).
The arbitrator awarded Giunta permanent disabilty benefits under Section 8(e)12 for 10 percent loss of use of the right leg. On appeal, the Illinois Workers' Compensation Commission found that the arbitrator erred in denying Giunta's request for a continuance
Section 12 of the Illinois Workers' Compensation Act obligates an employer's examining doctor to tender to the employee, in writing and as soon as practicable, an exact copy of the report the doctor provided to the employer. In this case, Giunta failed to avail himself of all available remedies to obtain the reports of the defendant's Section 12 examiners prior to trial. However, the Commission found that Giunta acted in good faith reliance on the representation of the defendant's attorney that he would provide Giunta's attorney with a copy of any report generated as a result of the examination. The defendant's attorney informed Giunta on the date of the trial of the defendant's refusal to tender the reports. Based on this element of surprise, the arbitrator should have granted Giunta's request for a continuance so that he could obtain the medical reports and determine whether he should present the doctor's testimony or allow the arbitrator to close proofs without considering the doctor's findings and opinions. However, pursuant to Giunta's interest of bringing the case to a conclusion and avoiding further delay, the Commission declined to remand the case to the arbitrator and instead issued a decision based on the evidence presented.
The Illinois Workers' Compensation Commission went on to modify the arbitrator's disability award, increasing the permanent disability to 50 percent loss of use of the right leg, with a credit due the defendant for the 25 percent loss of use caused by a previous injury. After the second accident, Giunta was restricted to walking no more than 15 blocks. Giunta testified that hisknee feels worse not than it did prior to the second accident.
