mr johnson was collaterally the stops in her negligence action in her motion for summary judgment against the intervenor state the circuit court held on summary judgment that the that's correct your honor but as we stated in our brief that does not prejudice this johnson because the only distinction between judicial stoppel is that it applies to the parties in the original action against third part different between judicial a stop and collateral estoppel is the identity of the parties and the fact that things have to be taken under oath wasn't really a part of the trial court's determination similarity is the same arguments the only argument on appeal and the only argument that really does applies to quite a list of all is the identity of the issues which is the same for judicial style and for collateral stuff that was the only argument in the trial  where the issues were identical and the only argument on appeal was whether the idea did i say the issues are identical and that was the basis for the trial court's ruling and it's also a mr johnson the the two issues that are identical in both the workers compensation settlement which i will refer to as a finding of the commission because the workers compensation accident it was a proximate cause of the injuries to miss johnson's wrist the worker's compensation decision found that it was and in summary judgment this  compensation decision summary judgment motion was whether the state compensated mr johnson for the injuries to her elbow it's undisputed that those injuries were caused d january fourteenth accidents but miss johnson asserted in her summary judgment motion that the state never compensate so we have to keep in mind the elbow to elbow wrist january fourteenth accident june one accident but those are the two identical issues the workers compensation decision held that the injuries to her settled with her on that basis and that was a specific finding in the workman's worker's compensation settlement which became a final decision of the  the state somehow had a burden of proof against the third party defendants such as the state had a burden of proof to prove that the fence were negligent and that their negligence caused the injuries on january fourteen and that is not an issue it was not an issue in the workers compensation so so therefore johnson argues identity issues astroid but that argument is wrong because its premises faults the section five destroyed because the state's lien is not the and again if you look at the appendix page a one first four paragraphs of five you talk about the states lean in the last paragraph talks about and if the employee does not see the third parties then the state goes through those are two separate are stage johnson second argument on page fourteen of her brief is that the states lean is somehow quote akin close quote to an employer suing a third party joint tortfeasor for contribution so johnson argues in that case the state still have a burden of proof against the third party defendants and so the identity of issues  destroyed because those issues about third party defendants aren't issues in the workers compensation so that argument again that our premise of bad argument is false also the state filing accident but she didn't say all of the risk injury was due to the piling accident but there was some that was attributable to the the january snow absolutely i did not tell you that there's a disputed issue of fact tried courtney's to determine how much of a risk injury was as a result of the snowplow accident in january how much of it was as a result of the june filing accident of course in the lane accordingly and it's done right then and that for the reason that even a particular owners were for it because i'm actually not familiar with that station pleadings assuming that that's correct the trial court cannot look behind the findings of the workers compensation so which was a decision of the industrial commission and it found that all of her wrist injuries the industrial commission found that all of her wrist injuries faced on mr johnson's allegations they they couldn't apportion if you because she's collateral you stopped to make to make out are not the the workers compensation settlement contract does not say that one hundred percent of the wrist injury was as a result of the snowplough absent yes assembly asserts that it cause an injury and have more than one cause for that strip what is it about the workers compensation settlement contract that operates as a final adjudication that one hundred per thought this is the state would still be entitled to the entire amount of the settlement even because of what you're saying because the state as you call in our grief make the argument that the damages don't have to match up page thirteen which summarizes what we argued in our opening that because the damages don't have to be the same the state is entitle to recover all of its lien against fourteenth accident in the negligence summary judgment decision the state will still be entitled to collect the entire sum of if any portion is attributable what our position really is that the circuit court could not go behind the of the of the industrials and then finally miss johnson argues the state had a duty to examine the medical records and middles medical records contained facts that were contrary to the workers compensation decision that everything was attributable to january fourteenth and that therefore ms johnson is so unfair as johnson but to the extent that those records are contrary contain facts that are contrary to the settlement decision the settlement of the workers compensation decision specifically provide that issues exist between the really doesn't have a duty to protect mrs johnson against her own you know negligence or misrepresentations and what she represented to me that's real commission she represented that all of her injuries to her wrist at the time of the time that they had settled and i think that's another answer your question at the time of the date of the settlement all are injuries to or wrist that compensated by the state as if there was a separate worker's comp claim filed for the two thousand and nine filing if you know if there had been we wouldn't be and it's a the record does not disclose and nobody in the attorney general's office you look at the language of section five b which is really what this i believe this issue is a vote on and counsel touched on that he drew a distinction between the first paragraph of section five b of the worker's compensation act and the last paragraph as giving different rights to an employer and i think that's an inaccurate interpretation of section five b section five b is titled it applies to third party liability so whatever damages can be recovered by either an employer or an employee due to the negligence of a third party their rights are the same under section five b whether the employer files the suit within the last three months of the statute of limitations or whether the employee files the lawsuit within the two year statute of limitations which applied in this case and which is what happened here so the fact that and i don't know that it's a part of the record i didn't make it an argument but the complaint was filed about two months before the stage limitations expired here so the state had an opportunity to file its own action but to create a stink ssion is is inaccurate because whether the state filed its own action or has a lien against the plaintiffs the employee's cause of action it is derivative to the employee's claim anything the employer does is premised on the negligence of the third parties in the underlying wasit and so the burden of proof that the employee has to prove proximate cause in the civil lawsuit is the same burden of proof that the employer would have had to prove had the employer had the employee not filed her own action and this was just the state of illinois seeking reimbursement from mr wind reiner and in his employer in the civil case this then we'd be analyzing there wouldn't be an argument about proximate cause having to be proven and that's an important argument here it does defeat collateral estoppel because collateral stoppel is premised on the fact that the employee and the employer are on opposite sides in a new litigation in this case and that's just not true this is not there are no claims filed against the employer simply an argument as to implication of its lien under assumed a fair interpretation of section five b of the worker's compensation act one of the arguments counsel made earlier was talking about case law that says a lien can apply when damages are different and i know the case law that says in the industrial commission there's no distinction for pain and suffering so that club or attorney are trying to be clever tried to distinguish pain and suffering in a case years ago by saying the lien want to test it and the court said no you can't make that distinction about damages that's not what this case is about the distinction here are two different injuries that different types of damages from one injury that occurred in january two thousand and nine we have state had filed its own section under fire its own action under section five b neither of us could prove that the defendants in the civil action were proximate cause of the right hand wrist injur syndrome i'm saying that correctly because we could not prove proximate cause and in full confessional mode before this panel when i filed the civil cause of action i thought it was all connected to that case until we took the deposition of dr newcomer the medical expert who said no no you're wrong this june this is a wrist injury an injury from which the surgery and the temporary total disability the bulk of the  worker's comp settlement was not related to the january two thousand and nine incident at all it was related to this complaint she made about lifting doing a lot of lifting f work the day before which is right there in june with that is correct but part of the argument that's being made against my client in this appeal is that she's getting some type of a double recovery which is not the case in trying to prove the case in the civil arena going through the depositions after the deposition of dr new cumber newcomer defense counsel rightfully said well we'll talk settlement with you but we won't consider the injury which now dr newcomer was from june first two thousand and nine and it's unrelated to this january two thousand and nine incident so now we've got two separate injuries defined by a physician i don't have the ability as an attorney to establish medical proximate cause and neither does my client but a lot of the arguments being made in this appeal suggest that we have that ability right right ok unless it's negotiated with the employer the twist here is that there's a second injury a circuit and a further twist that that instead of first entry disputed issue of material back here there's been a an admission what's called the workers compensation settlement contracts signed by the claimant suggesting that there were right wrist injuries included in that january after them so to a certain extent that should be treated as an admission therefore disputed issue of turtle fact exists it stays in the trial or what does the trial court do in terms of a portion of the a portion of the personal injury subtle to the five the section five b reimbursement i was the tribe or through that i don't think the trial court can and i would respectfully state your honor that the reason why is i don't think an admission in my understanding i'm not an expert worker the workers compensation system the industrial commission i don't profess to be  i'm trying cases in preparing cases for trial and civil lawsuits where i represent plaintiffs they're not allowed to ever provide testimony as to medical proximate cause the law in illinois  cited in the briefs because it's a point that i didn't anticipate i think counsel mentioned that in his argument that you would raise this my argument is that my client does not have the capability and i not recognized under illinois law to be able to be qualified to make an admission as to medical proximate cause only a medical doctor can do that in a civil case and when we got to that in this case there are no apportionment issues because dr newcomer put a wall up and said no june one two thousand and nine going forward not related i didn't have a medical expert to refute that so there's no i don't believe there's any issue of fact in dispute well weren't the medical wasn't there medical treatment predating june one relative to the right wrist there wasn't and that's part of the core quirkiness of this case is that what we could all agree on the medical treatment right after this elbow injury in january was paid for by her health insurance and the state has never stepped up to pay those bills which we don't dispute are connected so were we faced in the civil court separately from the health insurers now we can probably all sleep well at night worrying about whether a health insurer gets their lean money back but needless to say from if we just look at it from a chronological standpoint than the health insurer would be first in line i know that they're not first in line under section five years of worker's comp act but these are bills that should have been paid by the state and weren't are they mistakes made by both sides i suppose did people miss this yes i guess reimbursement pursuant to section if that were an issue i would agree with you but there was no wrist injury complaints until after this incident and work of lifting files in june of two thousand and nine and i understand that fate she was here arguing before she right before me james green was the defense attorney in the civil case i saw him coming up as he was going down head had been an issue had the medical records shown  complaints before the before that june incident complained of the doctor newcomer that would have been a different issue altogether and if james greene on behalf of his insurance client would have said i will all we're only going to settle for the elbow injury and nothing else and that's what this twenty seven thousand dollars is for and i would have attached an affidavit item izing or clearly identifying to the trial court what they were green to settle that they were denying proximate cause for the right wrist injury i mean i can tell you it's not a part of the record but that's why this was a smaller settlement because they were after dr newcomer's deposition they said well well paid for that we just won't if it wasn't an injury caused by us which goes back to section five b a lien applies only to injuries caused by the negligence of a third party but the evidence in the case developed not in the i understand with the settlement patrick the missions but once we did the discovery in the civil case a wall went up at june first two thousand and nine saying your case doesn't go any further that's what dr newcomer said and so weak we could not prove any longer that the right wrist or hand injury was caused by the negligence of the third party which is what's required under five b so head to head to june first they've been listed separately in that worker's compensation settlement agreement which it could have been it could have been identified as two separate injuries i was in a party to that i'm not of workers compensation attorney but that's my understanding that you can list two separate dates of injury in the settlement agreement we wouldn't be here and there be no dispute part of the argument here is suggesting that melanie johnson's getting an unfair double recovery when you say you wouldn't be here when you so you wouldn't be here you would probably still be in the trial court trying to force in the right wrist from the right although in terms of the five easily if that well we would be the same issue it would if counsel for the insurance company defended my case and we won't pay for that and that became an issue with the state even with all dates on that settlement agreement in the industrial commission and i go back to the f a david of james green i would have had that affidavit saying after following the deposition testimony of dr newcomer we we agreed to settle only for the injuries related to our incident before june two thousand the only thing that would have hurt having the two accident based on the workers compensation settlement on track would be the lateral stop ard which i don't think applies because this is not this is not a separate cause of action between the employer and the employee it's a cause of action against a negligent third party tortfeasor i think that councils attempt to distinguish the first paragraph section five b from the last paragraph of section five b it has now been recognized in the in any case law on illinois and i don't think it's a fair argument to me it's all the same this entire section b applies to negligence of a third party tort fees we're all bound by the limitations reply brief in the east and the circuit court i acknowledge that some bills were paid by the state so there they do have a lien for some of the bills before june first two thousand and nine the argument i made and that was my initial mistake was because of health plans paid paid the bills up to from january two thousand and nine to the middle of april two thousand nine when this state never reimburse them for that i still have that lien in the case that might go away depending on this court's ruling and never be reimbursed but that's if this court were to rule in favor of melanie johnson which i would s that they would that's an issue that is not in dispute and whatever bills were paid by the state would be reimbursed to them i don't dispute that lien now if the if this court had to send it back down to the circuit court to clarify that issue or for i think that would be something that the state and melanie johnson would be able to resolve relatively quickly and you know this court's ruling i can't speak for grounds like don't don't  reimburse those and that was insufficient to resolve the case without you know what i think that the argument that section five b is a kinda contribution it just goes back to the third party liability issue we cannot neither the employer or the employee can succeed on recovering the workers compensation payments unless it's for an injury that somebody else is negligence because neither of us have cited a case and we wouldn't be here if there was a case directly on point that answered all these questions clearly but i do think that the purpose of section five b has been met in is there's no prejudice to the state by what the lower court did it's a fair ruling it makes sense it's logical there's no double recovery for melanie johnson if the lower courts finding is reverse then there will be a double recovery to the state the state will benefit from however you want to call it the fact that neither melanie johnson's attorney in the industrial commission or the state's attorney in the industrial commission chose to delve a little further into the medical records to determine what truly was caused by the january incident but isn't that what sent me you don't know discovery yes but they did they have access to the medical records and if they had leads to an issue you can take the testimony of the treating physician you can hire an expert still so there could have been more that could be done here but when you look at the actual numbers  you know everybody has to do things on an economy of scale and be reasonable that's why perhaps the it didn't happen but to then try to hold that against melanie johnson later on when a third party toward fees or finally answers those questions and say says we won't pay you for the hand or the wrist and the state still to say well that's all of our money to the detriment of melanie johnson and in all honesty less of my concern to the detriment of the health yes thank you for i am mister try and clear away the fix here i think it's important to remember the basic facts based on this johnson's representations of the state paid thirty five thousand dollars for an accident that occurred january fourteenth for injuries to her  and her arm includes her wrist and her elbow they paid her thirty five thousand dollars if she has a recovery against the snowball operator for anything that happened to her on january fourteenth the state has a lien for thirty five thousand dollars and under thousand dollars for injury to arm and wrist in an accident that occurred on january fourteenth and regardless there was a second accident in june one when mr johnson recovered twenty eight thousand dollars from the third parties the january fourteenth accident the state would be entitled to thirty five thousand dollars isn't the answer that you wouldn't be able to argue collateral estoppel and this would be in the trial court or the trial court to determine the five  recovery i don't think so because i think the even the settlement of the settlement unless the settlement agreement made specific findings of fact apportioning the damages if you want to get off the table unless the settlement injuries or damages between those two the state would still be entitled to collect it's entirely mild what it paid thirty five thousand dollars against any recovery for any  not limited to the amount of third party recovery or the type of damages recovered i stubbed my toe january fourteenth june one i break my arm