Illinois Official Reports

Appellate Court

RG Construction Services v. Illinois Workers’ Compensation Comm’n,

2014 IL App (1st) 132137WC

Appellate Court 

Caption

RG CONSTRUCTION SERVICES, Plaintiff-Appellant, v. THE 

ILLINOIS WORKERS’ COMPENSATION COMMISSION et al.

(Alfredo Martinez, Appellee).

District & No. First District, Workers’ Compensation Commission Division

Docket No. 1-13-2137WC

Filed

Rehearing denied

December 31, 2014

February 3, 2015

Decision Under 

Review

Appeal from the Circuit Court of Cook County, No. 12-L-51429; the 

Hon. Robert Lopez-Cepero, Judge, presiding.

Judgment Affirmed and remanded.

Counsel on

Appeal

Julie A. Garrison, of Maciorowski, Sackmann, & Ulrich, of Chicago, 

for appellant.

Richard Aleksy, of Law Offices of Corti and Aleksy, of Chicago, for 

appellee.
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Panel JUSTICE HARRIS delivered the judgment of the court, with opinion.

Presiding Justice Holdridge and Justices Hoffman, Hudson, and 

Stewart concurred in the judgment and opinion.

OPINION

¶ 1 On June 12, 2009, claimant, Alfredo Martinez, filed an application for adjustment of claim 

pursuant to the Workers’ Compensation Act (Act) (820 ILCS 305/1 to 30 (West 2008)), 

seeking benefits from the employer, RG Construction Services, for alleged work-related 

injuries to both knees. Following a hearing, the arbitrator determined claimant sustained 

injuries arising out of and in the course of his employment on December 15, 2008, to only his 

right knee and awarded him (1) 1074/7 weeks’ temporary total disability (TTD) benefits and (2) 

medical expenses associated with claimant’s right knee/leg condition. Additionally, the 

arbitrator rejected the employer’s contention that its fourteenth amendment (U.S. Const., 

amend. XIV) due process rights were violated by the admission of medical records that 

contained the medical opinions of two of claimant’s treating physicians.

¶ 2 On review, the Illinois Workers’ Compensation Commission (Commission) modified the 

arbitrator’s award, finding claimant injured both knees at work on December 15, 2008, and the 

current condition of ill-being in claimant’s left knee was also causally connected to his work 

accident. The Commission determined claimant was entitled to (1) prospective medical 

expenses for the left knee arthroscopic surgery recommended by one of claimant’s doctors, (2) 

an additional 173/7 weeks’ TTD benefits, and (3) outstanding medical expenses related to both 

his left and right knees. Although in agreement with the arbitrator’s rejection of the employer’s 

due process argument, the Commission further addressed the issue, finding no due process 

violation and stating claimant’s medical records were properly admitted at arbitration pursuant 

to section 16 of the Act (820 ILCS 305/16 (West 2008)). The Commission otherwise affirmed 

and adopted the arbitrator’s decision. It also remanded the matter to the arbitrator for further 

proceedings pursuant to Thomas v. Industrial Comm’n, 78 Ill. 2d 327, 399 N.E.2d 1322 (1980).

¶ 3 On judicial review, the circuit court of Cook County confirmed the Commission’s 

decision. The employer appeals, arguing (1) it was denied its due process right to 

cross-examine witnesses and present rebuttal evidence by the admission into evidence of 

claimant’s medical records, which contained the opinions of two of claimant’s treating 

physicians; (2) the Commission’s finding that claimant’s left knee condition of ill-being was 

causally connected to his December 2008 work accident was against the manifest weight of the 

evidence; (3) the Commission’s TTD award was against the manifest weight of the evidence; 

and (4) the Commission’s award of medical expenses was against the manifest weight of the 

evidence. We affirm.

¶ 4 I. BACKGROUND

¶ 5 On October 18, 2011, an arbitration hearing was conducted in the matter. Prior to the 

presentation of evidence, the employer asked that the matter not proceed with a hearing on that 

day. It asserted that, pursuant to the fourteenth amendment to the U.S. Constitution (U.S. 

Const., amend. XIV), it was entitled to cross-examine two of claimant’s treating physicians, 
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orthopedic specialists Dr. Ellis Nam and Dr. Ronald Silver, with respect to opinions contained 

in their medical records, which claimant wanted to have admitted into evidence.

¶ 6 With respect to the employer’s due process argument, the arbitrator stated as follows:

“We had a long discussion about this before we went on the record here. We talked 

about it. I offered the compromise of allowing [the employer’s counsel] to–I thought at 

that time it was just Dr. Silver’s deposition, but now we have Dr. Nam’s and Dr. 

Silver’s. But I would be willing to allow a continuance here, but I had asked since it 

was at the [employer’s] request and given that [claimant] is here and they have also 

rights and they also have fully conformed with the Statute with respect to the Section 

19(b) request for immediate hearing, I had requested that [the employer] pay for the 

deposition ***. [The employer’s counsel] *** has indicated he didn’t feel it’s his 

obligation to pay for the deposition of the treating witness.

It’s my opinion we have certain provisions under the Act, this is an administrative 

agency, it’s supposed to be simple and summary proceedings. This is the second setting 

for this case for an individual who has properly filed a motion for immediate hearing. I 

offered the opportunity to take this deposition, but I felt it only fair that the [employer] 

pay for it since I think under the Act the only thing that [claimant] needs to do is have a 

certified record or have these records via subpoena which I understand [he has] adhered

to those requirements.”

The arbitrator noted the employer declined his offer and he would allow the matter to proceed. 

He further stated he did not believe the employer’s fourteenth amendment rights were being 

impinged, noting the employer would have the ability to provide rebuttal evidence in the form 

of reports from its examining physicians.

¶ 7 The matter next proceeded with the arbitration hearing and the record reflects the parties 

agreed claimant sustained accidental injuries that arose out of and in the course of his 

employment on December 15, 2008. Claimant, who testified with the aid of an interpreter, 

stated he worked for the employer as a drywall finisher. On the date of his accident, he was 

performing his work on stilts, which were affixed to his feet and lifted him approximately four 

feet off the ground. While on the stilts, claimant stepped on a pipe or piece of trash and slipped 

and fell. He testified he struck the ground with both of his knees and his right shoulder.

¶ 8 Claimant testified he reported his accident and, the following day, the employer sent him to 

Concentra Medical Center (Concentra). Medical records reflect claimant was seen at 

Concentra on December 16, 2008. He reported falling at work from a height of five feet, 

“hit[ting] his knees,” and “hurt[ing] [his] right shoulder and right knee.” Records note claimant 

described mild pain in his shoulders but that his prominent pain was in his right knee. He 

underwent an X-ray of the right knee and was diagnosed with a knee contusion and shoulder 

pain. Claimant was given ibuprofen and modified activity restrictions of no prolonged standing 

or walking longer than tolerated, no climbing stairs or ladders, no squatting, and no kneeling. 

He returned to work for the employer in a light-duty capacity. Claimant continued to follow up 

at Concentra and, pursuant to recommendation, underwent physical therapy.

¶ 9 On December 22, 2008, Concentra records reflect claimant was progressing with therapy 

and reported “resolution of symptoms and restoration of pre-injury status.” On January 2, 

2009, records show claimant reported improvement but that he had “persiste[nt] pain of the 

medial side of the knee which [was] worse and severe with crossing [his] leg and walking.” 

Claimant described his pain as moderate and aching and stated it radiated to his right thigh. He 
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was again assessed as having a knee contusion and given modified activity restrictions of no 

prolonged standing or walking for longer than tolerated. A magnetic resonance imaging (MRI) 

was recommended. On January 20, 2009, an MRI was performed on claimant’s right knee, 

which showed “[s]oft tissue edema at the infrapatellar fat pad with suggestion of calcification 

or possibly foreign body at the inferomedial aspect of the infrapatellar fat pad.”

¶ 10 At a follow-up appointment on January 27, 2009, claimant reported his symptoms were the 

same and denied any knee pain or problem prior to his work accident. His doctor encouraged 

him to increase his activity level progressively but continued claimant’s modified activity 

restrictions. He also referred claimant to an orthopedic surgeon.

¶ 11 On February 11, 2009, claimant returned to Concentra and saw Dr. James Cohen. Dr. 

Cohen recorded claimant’s accident history as walking on stilts at work and falling “directly 

onto both knees.” He noted claimant reported pain “at the anterior aspect of his knees” and that 

claimant had recently been laid off by the employer. Dr. Cohen examined both of claimant’s 

knees and reviewed his X-ray and MRI, the latter of which he found to be “essentially normal 

except for some edema in the patellar tendon fat pad area.” His impression was that claimant 

“had a contusion to both knees and *** some mild chondromalacia patella.” Dr. Cohen 

released claimant to return to full-duty work and recommended ibuprofen. Claimant testified 

he did not return to work because he had been laid off. He described his condition at that time, 

stating both of his knees “were hurting *** a lot.” He asserted he could not go up stairs because 

he experienced too much pain and his knees hurt more at night.

¶ 12 Claimant testified he did not seek medical treatment again until June 13, 2009, when he 

began seeing Dr. Nam. Then, beginning November 24, 2009, he sought treatment from Dr. 

Silver. At arbitration, claimant sought to admit exhibits containing both doctors’ medical 

records. The record reflects the employer objected, raising the same arguments it raised at the 

outset of the arbitration hearing regarding its inability to cross-examine either doctor with 

respect to medical opinions contained within those records. The arbitrator overruled the 

employer’s objections and the doctors’ medical records were admitted into evidence.

¶ 13 Dr. Nam’s records reflect he saw claimant on June 13, 2009, for a chief complaint of right 

knee pain. Claimant reported he fell onto his right knee at work in December 2008, and 

experienced persistent pain on a daily basis. Dr. Nam noted that, although he did not have the 

report from claimant’s January 2009 MRI and the MRI was poor in quality, he did feel 

claimant had “evidence of abnormal medial meniscus.” His impression was “[r]ight knee rule 

out medial meniscus tear.” Dr. Nam stated claimant needed a better imaging study. He 

recommended an MRI arthrogram of claimant’s right knee. Dr. Nam also determined claimant 

was unable to work “until further notice.” On August 15, 2009, claimant underwent an MRI 

arthrogram.

¶ 14 On August 22, 2009, claimant returned to Dr. Nam, who noted claimant continued to have 

persistent pain in his right knee “with some catching and giving away symptoms.” Dr. Nam 

stated he reviewed claimant’s August 2009 MRI and noted as follows:

“As I pointed out to [claimant], he does have abnormal appearance of the medial 

meniscus and I am not sure if this represents a true medial meniscus tear. He also has 

some abnormal appearance of patellofemoral joint representing a possible chondral 

lesion of the patellofemoral joint.”

Dr. Nam’s impression was “[r]ight knee possible medial meniscus tear with possible chondral 

lesion of the patellofemoral joint.” He discussed his findings with claimant, whom he noted 
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was “still having persistent pain despite physical therapy.” Claimant and Dr. Nam discussed 

nonoperative management but elected to proceed with surgery. Dr. Nam recommended “a 

right knee arthroscopy, possible partial medial meniscectomy, and possible 

chondroplasty/abrasion arthroplasty.” Further, he continued claimant’s work restrictions.

¶ 15 The exhibit containing Dr. Nam’s medical records also contains a letter dated October 5, 

2009, which was authored by Dr. Nam and directed to “To Whom It May Concern.” In the 

letter, Dr. Nam summarized his contact with claimant and additionally stated as follows:

“To a reasonable degree of medical and surgical certainty, although I did not treat nor 

see [claimant] from January 27, 2009[,] up until June 13, 2009, given that [claimant] 

was suffering from the same magnitude of pain involving his right knee secondary to 

his injury from December 2008, I do feel that [claimant] would have not been able to 

work in a full duty capacity at that time.”

¶ 16 On November 24, 2009, claimant began seeing Dr. Silver, who documented each one of 

claimant’s visits in the form of a letter directed to the attention of Steven Borgstrom at 

“Employers Claim Services.” In the letter dated November 24, 2009, Dr. Silver noted claimant 

was injured “when he fell off stilts while doing dry walling [in December 2008,] injuring both 

knees.” He stated claimant’s right knee was “much worse” and “[t]he left one ha[d] 

recovered.” Dr. Silver noted upon examination that claimant had “patellofemoral crepitation 

and medial joint line tenderness.” His impression was that claimant had “damaged the articular 

cartilage of the patella due to his work injury and ha[d] a loose body in the right knee due to the 

*** work injury.” Dr. Silver recommended arthroscopic surgery “[b]ecause of claimant’s 

persistent symptoms of almost one years [sic] time.” He stated he believed claimant was 

temporarily disabled. Dr. Silver’s records show he took claimant off work pending surgery.

¶ 17 On August 10, 2010, claimant was examined by Dr. Charles Bush-Joseph at the request of 

both parties. Claimant reported falling on December 15, 2008, while wearing stilts and 

“suffering injuries to his back, both knees, [and] left shoulder and arm region.” Dr. 

Bush-Joseph noted: “Apparently all symptoms have resolved except for residual pain of the 

right knee. He clearly, on repeated questioning stated that he had no residual symptoms of his 

back, left knee[,] or left arm and shoulder.” Following an examination and review of 

claimant’s medical records and previous diagnostic tests, Dr. Bush-Joseph’s impression was 

“[r]esidual patellofemoral contusion, possible chondral injury with possible medial meniscal 

tear, right knee.” He opined claimant suffered a work-related injury to his right knee in 

December 2008 with residual symptoms that warranted further treatment. Dr. Bush-Joseph 

found “[i]njuries to [claimant’s] left shoulder and left knee ha[d] resolved with no residual.” 

He further believed, “given the length and duration of symptoms,” diagnostic arthroscopy was 

warranted. Finally, he stated as follows:

“I believe that based on the initial reports of Dr. *** Cohen and current physical 

examination findings, [claimant] was most likely able to work on a full-duty basis with 

only limitations of kneeling in the interval. Certainly, his current examination would 

allow such work tolerance.”

¶ 18 On November 13, 2010, approximately one year after their first meeting, Dr. Silver 

performed surgery on claimant’s right knee in the form of an arthroscopic partial lateral 

meniscectomy and arthroscopic debridement. Surgical records reflect claimant’s postoperative 

diagnoses were a “[t]orn lateral meniscus” and “[a]rticular cartilage fragmentation of the 

patellofemoral joint and medial femoral condyle.” On November 23, 2010, Dr. Silver 
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prescribed claimant physical therapy three times a week for 12 to 16 weeks. He also restricted 

claimant from working.

¶ 19 After his surgery, claimant underwent physical therapy and continued to follow up with Dr. 

Silver. He testified he also began to notice pain in his left knee. An initial physical therapy 

evaluation report, dated November 30, 2010, shows claimant provided a history of his work 

accident, stating “he was at work on stilts when he fell, landing directly on both knees.” In 

addition to right knee symptoms, claimant complained “of left knee pain which he relate[d] to 

overuse since the time of injury.”

¶ 20 In a letter directed to Borgstrom and dated December 21, 2010, Dr. Silver noted claimant 

“continue[d] to improve with regard to his right knee after arthroscopic surgery.” However, he 

stated claimant’s left knee was “deteriorating with medial joint line pain and peripatellar pain.” 

Dr. Silver noted claimant also injured his left knee as a result of his December 2008, work 

accident and recommended an MRI of the left knee. He recommended claimant continue with 

physical therapy for his right knee and limited him “to sedentary work only.”

¶ 21 On January 6, 2011, claimant underwent an MRI of his left knee, which revealed as 

follows:

“1. A small joint effusion.

2. Large horizontal tear involving the midbody and posterior horn of the medial 

meniscus.

3. Intact lateral meniscus, collateral and cruciate ligaments.”

In a letter to Borgstrom dated January 22, 2011, Dr. Silver stated claimant’s right knee 

continued to improve and his left knee MRI demonstrated what appeared to be a torn meniscus. 

He recommended left knee arthroscopic surgery once claimant’s right knee had recovered. Dr. 

Silver continued claimant’s work restrictions.

¶ 22 On January 25, 2011, Dr. Silver authored a letter to Borgstrom’s attention, stating 

claimant’s MRI demonstrated a large tear of the medial meniscus, which was “due to his work 

injury of [December 2008].” He further stated as follows:

“As you know [claimant] injured both of his knees at that time. The right one was 

initially mores [sic] severely painful and underwent arthroscopic surgery and slowly 

the left knee pain has persisted to the point where he can no longer tolerate it. He will 

require arthroscopic surgery of his left knee.”

On February 22, 2011, Dr. Silver authored a letter directed to Borgstrom’s attention. He 

reiterated claimant’s need for left knee surgery and stated claimant was limited to sedentary 

work with occasional walking and standing.

¶ 23 Claimant continued to follow up with Dr. Silver while awaiting approval for surgery. Dr. 

Silver continuously noted improvement in claimant’s right knee. He also recommended 

continued physical therapy for claimant’s right knee, surgery for claimant’s left knee, and that 

claimant remain off work. In a letter dated March 24, 2011, Dr. Silver stated claimant was 

temporarily disabled “[b]ecause of the tearing situation with regard to his left knee.” Further, 

he consistently reiterated his belief that claimant’s left knee condition was connected to his 

December 2008, work accident. On October 6, 2011, Dr. Silver authored a final letter directed 

to Borgstrom, stating as follows:

“We are still awaiting approval for [claimant’s] arthroscopic surgery of his left 

knee related to his work injury of December *** 2008[,] when he injured both knees 
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causing torn medial meniscus in the left knee. Lacking appropriate arthroscopic 

surgery he will be permanently disabled.” 

¶ 24 On June 23, 2011, claimant was evaluated by Dr. Troy Karlsson at the employer’s request. 

The employer submitted Dr. Karlsson’s report, dated June 28, 2011, into evidence at 

arbitration. That report shows claimant provided a history of falling on stilts at work and 

“landing onto both knees, more so on the right than the left.” Claimant reported having some 

pain in his left knee initially but that his left knee pain “got much worse after [his] right knee 

surgery when he favored that leg somewhat.” He stated physical therapy made his left knee 

worse. Dr. Karlsson’s report states claimant reported “no problems with the right knee at 

present” but that he complained of swelling in his left knee and pain “around the kneecap as 

well as medially.” Claimant asserted his pain increased with walking or physical therapy.

¶ 25 Dr. Karlsson diagnosed claimant with right knee osteoarthritis, lateral meniscal tear, and 

chondral fissuring. He determined claimant’s left knee had a medial meniscal tear that was 

degenerative in nature. Dr. Karlsson opined that “at least a portion” of claimant’s right knee 

problems were caused by his work accident and his right knee arthroscopic surgery was also 

“related to the occurrence of December 15, 2008.” However, he did not believe the condition 

of ill-being in claimant’s left knee “to be in any way related to that single fall.” In particular, 

Dr. Karlsson noted claimant initially complained only of symptoms in his right knee and made 

no left knee complaints. Additionally, he noted claimant expressly denied experiencing any 

symptoms in his left knee to Dr. Bush-Joseph in August 2010. Dr. Karlsson found there was 

“simply too wide a period of symptom-free times with the left knee and normal exams of the 

left knee to relate it to” claimant’s work accident. Rather, he opined claimant likely had “a 

degenerative tear of the medial meniscus in his left knee, unrelated to his action of December 

15, 2008.”

¶ 26 Dr. Karlsson further opined claimant was at maximum medical improvement (MMI) and 

could return to regular-duty work. He stated he would not recommend any restrictions for 

claimant whatsoever “other than times he may need off following arthroscopy of the left knee 

which is unrelated to the work injury.”

¶ 27 Claimant testified that after Dr. Nam restricted him from working in June 2009, no doctor 

released him to return to work and he had not returned to work in any capacity. He was also 

continuing to wait for authorization for the left knee surgery recommended by Dr. Silver. 

Claimant testified he felt a lot of pain in his left knee, especially when ascending a staircase.

¶ 28 On December 28, 2011, the arbitrator issued his decision in the matter. He determined 

claimant sustained accidental injuries to his right knee that arose out of and in the course of his 

employment on December 15, 2008. However, relying on Dr. Karlsson’s opinions, the 

arbitrator determined the condition of ill-being in claimant’s left knee was not causally related

to his work accident. He found claimant entitled to medical expenses “relating solely to the 

right knee condition.” The arbitrator also awarded claimant 1074/7 weeks’ TTD benefits, 

finding claimant was temporarily totally disabled from February 5 to February 11, 2009, and 

from June 13, 2009, when he first saw Dr. Nam, “through June 28, 2011, or the date Dr. 

Karlsson found [claimant] had reached MMI with respect to his work[-]related right knee 

injury.” Finally, the arbitrator’s decision addressed the employer’s due process argument, 

finding its rights had not been violated or abridged.

¶ 29 Both parties sought review of the arbitrator’s decision with the Commission, which issued 

its decision in the matter on October 18, 2012. The Commission modified the arbitrator’s 
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decision to find the current condition of ill-being in claimant’s left knee was causally 

connected to the work injury he sustained on December 15, 2008, and claimant was entitled to 

prospective medical expenses in the form of the arthroscopic left knee surgery recommended 

by Dr. Silver. It found claimant “sustained injuries to both knees” when he fell at work in 

December 2008. The Commission noted claimant’s right knee arthroscopy, which had been 

recommended by two of claimant’s treating physicians, was not authorized “for almost two 

years from the date of accident” and following “an agreed third opinion by Dr. Bush-Joseph” 

that “was favorable to [claimant].” It stated it also relied “on the credible record and the 

opinion of Dr. Silver that [claimant’s] left knee injury from December 15, 2008[,] progressed 

with the overuse of his left leg over several years of right knee impairment, and that he now 

requires the left knee surgical treatment recommended by Dr. Silver.”

¶ 30 As stated, the Commission awarded claimant an additional 173/7 weeks’ TTD, 

“representing the time period [of] June 30, 2011 through October 18, 2011, during which time 

[claimant] remained temporarily totally disabled per Dr. Silver.” Further, it stated as follows:

“While we are in agreement with the decision of the Arbitrator on this issue, we 

further address [the employer’s] constitutional argument. We find no violation [of the 

employer’s] Fourteenth Amendment right to due process. The Arbitrator offered to 

continue the hearing if [the employer] elected to obtain the depositions of the Drs. Nam 

and Silver, but [the employer] declined. The treatment records were therefore properly 

admitted pursuant to Section 16 of the Act [(820 ILCS 305/16 (West 2008))].”

One commissioner issued a concurring opinion, stating as follows:

“I agree with the majority result; however, I do not agree that [the employer] is required 

to take depositions of [claimant’s] witnesses at its own expense in order to protect its 

right to cross[-]examine these witnesses on opinions that go beyond treatment. The 

records should have been admitted only for those purposes permissible under Section 

16 of the Act. I, nevertheless, concur in the result because the Commission could reach 

the same result without reliance on the objectionable opinions in the records of Drs. 

Silver and Nam.”

¶ 31 On June 13, 2013, the circuit court confirmed the Commission’s decision. This appeal 

followed.

¶ 32 II. ANALYSIS

¶ 33 On appeal, the employer first argues the Commission erred in finding its due process rights 

had not been violated. It notes the medical records of Dr. Nam and Dr. Silver were admitted 

into evidence at arbitration and argues those records improperly included the doctors’ opinions 

with respect to claimant’s ability to work and causation. The employer contends allowing such 

medical opinions into evidence, when the doctors rendering the opinions had not first been 

subject to cross-examination, constituted a due process violation.

¶ 34 “Due process includes the right to present evidence and argument in one’s own behalf, a 

right to cross-examine adverse witnesses, and impartiality in rulings upon the evidence that is 

offered.” W.B. Olson, Inc. v. Illinois Workers’ Compensation Comm’n, 2012 IL App (1st) 

113129WC, ¶ 49, 981 N.E.2d 25. In the context of administrative proceedings, “[d]ue process 

of law requires that all parties *** have an opportunity to cross-examine witnesses and to offer 

evidence in rebuttal.” Freeman United Coal Mining Co. v. Industrial Comm’n, 297 Ill. App. 3d 
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662, 667, 697 N.E.2d 934, 937 (1998) (citing Paoletti v. Industrial Comm’n, 279 Ill. App. 3d 

988, 998, 665 N.E.2d 507, 513 (1996)). “[A] party claiming that a due process violation has 

occurred must establish that it was prejudiced by the alleged violation [citation].” All American 

Title Agency, LLC v. Department of Financial & Professional Regulation, 2013 IL App (1st) 

113400, ¶ 36, 994 N.E.2d 636.

¶ 35 Additionally, “[e]xcept when the Act provides otherwise, the Illinois rules of evidence 

govern proceedings before the Commission or an arbitrator.” National Wrecking Co. v. 

Industrial Comm’n, 352 Ill. App. 3d 561, 566, 816 N.E.2d 722, 726 (2004). “Evidentiary 

rulings made during a workers’ compensation proceeding will not be disturbed on review 

absent an abuse of discretion.” National Wrecking, 352 Ill. App. 3d at 566, 816 N.E.2d at 726.

¶ 36 To support its position in this case, the employer relies heavily on Paoletti, 279 Ill. App. 3d 

at 999, 665 N.E.2d at 514, wherein this court determined the Commission committed 

reversible error by refusing to allow the claimant to present rebuttal evidence to a video 

surveillance tape. Although we agree with the propositions set forth in Paoletti regarding due 

process and the holding in that case, we find neither that case nor the other cases cited by the 

employer speak to the precise issues presented here. Initially, we note the record shows the 

employer was permitted to cross-examine the only witness to testify at arbitration–claimant. 

Neither Dr. Nam nor Dr. Silver was called as a witness at arbitration. Rather, the doctors’ 

medical records were admitted into evidence. The record further reflects the employer had the 

opportunity to present evidence to rebut claimant’s case and the employer does not assert 

otherwise.

¶ 37 The Commission found the employer’s due process rights were not violated and the 

treatment records of Dr. Nam and Dr. Silver were properly admitted pursuant to section 16 of 

the Act (820 ILCS 305/16 (West 2008)). We agree. The Act provides:

“The records, reports, and bills kept by a treating hospital, treating physician, or 

other treating healthcare provider that renders treatment to the employee as a result of 

accidental injuries in question, certified to as true and correct by the hospital, 

physician, or other healthcare provider or by designated agents of the hospital, 

physician, or other healthcare provider, showing the medical and surgical treatment 

given an injured employee by such hospital, physician, or other healthcare provider, 

shall be admissible without any further proof as evidence of the medical and surgical 

matters stated therein, but shall not be conclusive proof of such matters. There shall be 

a rebuttable presumption that any such records, reports, and bills received in response 

to Commission subpoena are certified to be true and correct. This paragraph does not 

restrict, limit, or prevent the admissibility of records, reports, or bills that are otherwise 

admissible. This provision does not apply to reports prepared by treating providers for 

use in litigation.” (Emphasis added.) 820 ILCS 305/16 (West 2008).

Thus, pursuant to section 16, the records and reports of a claimant’s treating physician, which 

are certified as true and correct, are admissible “as evidence of the medical and surgical 

matters” contained within the records or reports. 820 ILCS 305/16 (West 2008).

¶ 38 Here, both Dr. Nam and Dr. Silver were claimant’s treating physicians. Additionally, on 

appeal, the employer agrees their records were “subpoenaed and certified pursuant to section 

16” of the Act. The employer does assert that “[i]t is undeniable that the doctors’ records 

contain opinions beyond medical and surgical matters admissible pursuant to Section 16.” 

However, it cites no authority for this statement other than section 16 itself. After reviewing 
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the statutory language, we find no indication that the legislature intended to exclude a treating 

doctor’s opinion, which was offered during the course of the doctor’s treatment of the 

employee and memorialized in the doctor’s treating records, from the phrase “medical and 

surgical matters.”

¶ 39 It stands to reason that the records and reports of a treating physician are likely to contain 

medical opinions relating to a variety of aspects in the care, treatment, and evaluation of the 

employee. As a result, we are not persuaded by the employer’s position that the simple 

inclusion of medical opinions within a treating physician’s records is sufficient to exclude 

them from admission pursuant to section 16. Further, although the employer criticizes the 

arbitrator’s comment that Commission proceedings should be “simple and summary,” we note 

section 16 of the Act actually contains that explicit phrase. That section provides that “[t]he 

process and procedure before the Commission shall be as simple and summary as reasonably 

may be.” 820 ILCS 305/16 (West 2008). The provisions of section 16 at issue in this appeal 

assist in accomplishing that goal by easing the foundational requirements for the admission of 

a treating physician’s records. Shafer v. Illinois Workers’ Compensation Comm’n, 2011 IL 

App (4th) 100505WC, ¶ 50, 976 N.E.2d 1 (stating the 2005 amendments to section 16 were 

meant “to ease the foundational requirements for the admission of medical bills and records”).

¶ 40 We note section 16 does not apply to reports prepared by a treating medical provider for 

use in litigation. 820 ILCS 305/16 (West 2008). In a single sentence in its opening brief, the 

employer concludes that some of the opinions in the records of Dr. Nam and Dr. Silver were 

contained within “reports appearing to be prepared in the aid of litigation.” However, the 

employer offers no basis or argument to support its conclusion, nor does it identify or cite to 

the offending “reports.” “The ‘failure to properly develop an argument and support it with 

citation to relevant authority results in forfeiture of that argument.’ ” Compass Group v. 

Illinois Workers’ Compensation Comm’n, 2014 IL App (2d) 121283WC, ¶ 33 (quoting Ramos 

v. Kewanee Hospital, 2013 IL App (3d) 120001, ¶ 37, 992 N.E.2d 103); Ill. S. Ct. R. 341(h)(7) 

(eff. July 1, 2008) (providing that points not argued in an appellant’s brief are waived). We 

find any arguments by the employer that portions of Dr. Nam’s and Dr. Silver’s records were 

prepared in anticipation of litigation have been forfeited due to the employer’s failure to 

present any reasoned argument to support such a position.

¶ 41 Despite the employer’s forfeiture, we note Dr. Nam’s letter, dated October 5, 2009, and 

addressed to “To Whom It May Concern,” is the most suspect document for having been 

prepared in anticipation of litigation. In the letter, Dr. Nam provided an opinion that does not 

appear to have been relevant or necessary to his treatment of claimant as it concerned 

claimant’s inability to work from January to June 2009, a period of time immediately prior to 

when his own treatment and evaluation of claimant began. However, to the extent the 

Commission committed error by allowing the letter into evidence, we find no reversible error 

occurred. The record fails to reflect that either the arbitrator or the Commission relied on this 

particular opinion of Dr. Nam. In fact, although Dr. Nam opined claimant was unable to work 

from January to June 2009, and claimant was off work for much of that time, he was not 

awarded TTD benefits for that time period except for a short period in February 2009, when he 

was under work restrictions at Concentra and had been laid off by the employer. Thus, as Dr. 

Nam’s opinion in his October 5, 2009, letter was not relied upon by the Commission, the 

employer did not suffer prejudice and any error was harmless.
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¶ 42 Finally, we note that in the context of hearsay objections to medical records the supreme 

court has held that “under certain circumstances the probability of accuracy and 

trustworthiness [of a document] may serve as a substitute for cross-examination under oath.”

United Electric Coal Co. v. Industrial Comm’n, 93 Ill. 2d 415, 420, 444 N.E.2d 115, 117 

(1982). In United Electric, 93 Ill. 2d at 417-18, 444 N.E.2d at 116, the employer objected to 

two exhibits the employee offered into evidence, each of which contained a physician’s 

audiogram and a letter from the physician to the employee’s attorney, containing the 

physician’s opinions as to the nature and cause of the employee’s condition. The exhibits were 

admitted into evidence over the employer’s objections. United Electric, 93 Ill. 2d at 418, 444 

N.E.2d at 116. On review, the employer asserted the exhibits contained hearsay and “should 

not have been admitted because [the employer] had no opportunity to subject [the physician] to 

cross-examination concerning the statements contained in the reports and because [the 

physician’s] statements were not made under oath.” United Electric, 93 Ill. 2d at 420, 444 

N.E.2d at 117. In rejecting the employer’s contentions, the supreme court stated as follows:

“The reports and audiograms at issue here were based on examinations performed upon 

[the employee] by a specialist to whom he had been referred by his family physician for 

evaluation and treatment. There is no challenge to their authenticity. Moreover, the 

audiograms were examined by [the employer’s] medical witness, whose evaluation of 

them, to some extent, formed the basis for his opinion concerning the cause of [the 

employee’s] condition. Under the circumstances we believe the information contained 

in the challenged exhibits was trustworthy and conclude that the arbitrator did not err in 

admitting the exhibits into evidence.” United Electric, 93 Ill. 2d at 420-21, 444 N.E.2d 

at 117-18.

¶ 43 Here, although the employer did not object to claimant’s exhibits on hearsay grounds, we 

nevertheless find United Electric instructive. In particular, it stands for the proposition that the 

probability of accuracy and trustworthiness of an exhibit may substitute for cross-examination 

under oath. Cross-examination of claimant’s doctors in this case was exactly what the 

employer was seeking. However, like the exhibits in United Electric, claimant’s exhibits in 

this case included the records of physicians he saw for evaluation and treatment; the 

authenticity of the records was not challenged by the employer; and the records were reviewed 

by the employer’s evaluating physician, Dr. Karlsson. The record reflects the employer had a 

sufficient opportunity to rebut claimant’s evidence. Under the circumstances presented, we 

find the employer failed to show its due process rights were violated and the Commission 

committed no error in rejecting the employer’s due process argument.

¶ 44 On appeal, the employer next argues the Commission erred in finding claimant’s left knee 

condition of ill-being was causally connected to his December 2008 work accident. It argues 

the evidence overwhelmingly shows claimant injured only his right knee in December 2008. 

The employer points out claimant initially sought and received treatment for only his right 

knee and did not begin making left knee complaints until almost two years later in November 

2010, and the record contains no medical evidence to support claimant’s overuse theory of 

causation with respect to his left knee.

¶ 45 Initially, the employer contends the Commission’s decision, which reversed the 

arbitrator’s finding as to causation and claimant’s left knee injury, should be reviewed using an 

“extra degree of scrutiny.” However, this court has previously declined to apply such a 

standard, even when reviewing the Commission’s rejection of the arbitrator’s credibility 
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determinations. Hosteny v. Illinois Workers’ Compensation Comm’n, 397 Ill. App. 3d 665, 

676, 928 N.E.2d 474, 483 (2009); see also R&D Thiel v. Illinois Workers’ Compensation 

Comm’n, 398 Ill. App. 3d 858, 866, 923 N.E.2d 870, 877 (2010) (recognizing “the 

Commission exercises original jurisdiction and is not bound by an arbitrator’s findings” and 

stating a reviewing court determines “whether the Commission’s credibility findings that are 

contrary to those of the arbitrator are against the manifest weight of the evidence”). We 

similarly decline to apply the extra-degree-of-scrutiny standard in this case.

¶ 46 “Whether a causal connection exists between a claimant’s condition of ill-being and [his] 

work-related accident is a question of fact to be resolved by the Commission, and its resolution 

of the matter will not be disturbed on review unless it is against the manifest weight of the 

evidence.” University of Illinois v. Industrial Comm’n, 365 Ill. App. 3d 906, 913, 851 N.E.2d 

72, 79 (2006). “It is the Commission’s duty to resolve conflicts in the evidence, particularly 

medical opinion evidence.” Land & Lakes Co. v. Industrial Comm’n, 359 Ill. App. 3d 582, 

592, 834 N.E.2d 583, 592 (2005). “The test is whether the evidence is sufficient to support the 

Commission’s finding, not whether this court or any other tribunal might reach an opposite 

conclusion.” Land & Lakes, 359 Ill. App. 3d at 592, 834 N.E.2d at 592. “For the Commission’s 

decision to be against the manifest weight of the evidence, the record must disclose that an 

opposite conclusion clearly was the proper result.” Land & Lakes, 359 Ill. App. 3d at 592, 834 

N.E.2d at 592.

¶ 47 Here, as stated, the Commission determined claimant’s left knee condition of ill-being was 

causally connected to his December 2008 work accident. The record supports that decision, 

showing claimant fell while working on stilts on December 15, 2008, and landed on both of his 

knees. Prior to that date, he had no history of knee problems. Following his accident, claimant 

immediately began receiving treatment for his right knee where the pain was most prominent 

and, ultimately, underwent right knee surgery. He also consistently reported an accident 

history of falling onto both of his knees and, on February 11, 2009, Dr. Cohen diagnosed 

claimant with “a contusion to both knees.” Claimant testified he experienced pain in both 

knees following his lay off from the employer in February 2009. In November 2010, after his 

right knee surgery, claimant’s medical records show he began reporting worsening symptoms 

in his left knee.

¶ 48 Although the record does not support the Commission’s statement that Dr. Silver opined 

claimant’s left knee “progressed with overuse of his left leg over several years of right knee 

impairment,” Dr. Silver’s records do show he believed claimant’s left knee condition was 

causally related to his December 2008 accident. As the employer points out, its examining 

physician offered an opposing opinion as to causation. However, conflicts in the medical 

evidence were for the Commission to resolve. We cannot say an opposite conclusion from that 

of the Commission was clearly apparent from the record. Its decision as to causation was not 

against the manifest weight of the evidence.

¶ 49 The employer next challenges the Commission’s TTD award. It argues that because 

claimant’s left knee condition was not causally related to his work accident claimant was only 

entitled to TTD benefits from February 5 to February 10, 2009, and from November 13, 2010, 

the date of claimant’s right knee surgery, to March 24, 2011, when the employer contends 

claimant’s right knee had recovered from surgery and, per Dr. Silver, claimant remained off 

work due to only his left knee condition of ill-being.
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¶ 50 “A claimant is temporarily and totally disabled from the time an injury incapacitates him 

from work until such time as he is as far recovered or restored as the permanent character of her 

injury will permit.” Shafer, 2011 IL App (4th) 100505WC, ¶ 45, 976 N.E.2d 1. “The issues of 

whether an employee is temporarily totally disabled, as well as the period of such disability, 

are questions of fact for the Commission, and its decision will not be disturbed on review 

unless it is against the manifest weight of the evidence.” Kishwaukee Community Hospital v. 

Industrial Comm’n, 356 Ill. App. 3d 915, 925, 828 N.E.2d 283, 293 (2005).

¶ 51 Here, the arbitrator awarded claimant 1074/7 weeks’ TTD benefits, representing the time 

periods of (1) February 5, 2009, when claimant was laid off from the employer to February 11, 

2009, when he was released by Dr. Cohen to return to full-duty work and (2) June 13, 2009, 

when Dr. Nam examined claimant and determined him unable to work to June 28, 2011, when 

claimant was evaluated by Dr. Karlsson and found to have reached MMI. After modifying the 

arbitrator’s decision with respect to causal connection, the Commission awarded claimant an 

additional 173/7 weeks’ TTD benefits, representing the time period of June 30, 2011, through 

October 18, 2011, “during which time [claimant] remained temporarily totally disabled per Dr. 

Silver.” The TTD periods awarded by the Commission were supported by the record, which 

contains the off-work restrictions of claimant’s treating physicians. Additionally, the 

employer’s main challenge to the Commission’s TTD award is based on its contention that the 

Commission’s causation decision was against the manifest weight of the evidence. As 

discussed, we disagree with that contention. We find the Commission’s TTD award is 

supported by the record and not against the manifest weight of the evidence.

¶ 52 Finally, the employer argues the Commission’s award of medical expenses is against the 

manifest weight of the evidence. “Whether medical expenses are reasonable and necessary is a 

question of fact for the Commission, and the Commission’s determination will not be 

overturned unless it is against the manifest weight of the evidence.” Shafer, 2011 IL App (4th) 

100505WC, ¶ 51, 976 N.E.2d 1.

¶ 53 First, the employer again bases its challenge to the Commission’s medical expenses award 

on the same due process and causation arguments already raised and rejected. For the same 

reasons already stated, its arguments fail. Second, to the extent the employer argues claimant 

was required to present the testimony of his treating physicians to establish the reasonableness 

and necessity of his claimed expenses, we disagree.

¶ 54 In Shafer, 2011 IL App (4th) 100505WC, ¶ 51, 976 N.E.2d 1, this court rejected a similar 

argument by an employer. Noting the reasonableness and necessity of medical expenses was a 

question of fact for the Commission, we pointed out that the claimant’s medical records 

documented her injuries, symptoms, “and the medical procedures that her doctors believed 

were necessary and appropriate to treat her pain and injuries.” Shafer, 2011 IL App (4th) 

100505WC, ¶ 51, 976 N.E.2d 1. We then stated as follows:

“The employer presented no evidence suggesting that these treatments were not 

necessary to cure or relieve the effects of [the] claimant’s injury. Nor did it present any 

evidence showing that these bills were unreasonable in light of what other healthcare 

providers typically charge for the same services in the relevant geographical area. 

Thus, we cannot say that the Commission’s finding that the medical treatments 

performed by the claimant’s doctors and the prospective medical treatments they 

recommended were reasonable and necessary was against the manifest weight of the 

evidence.” Shafer, 2011 IL App (4th) 100505WC, ¶ 51, 976 N.E.2d 1.
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¶ 55 The same rationale set forth in Shafer applies here. Claimant’s medical records 

documented his injuries, symptoms, and treatment. The employer presented no evidence 

showing the treatments claimant received were unnecessary or that amounts billed were 

unreasonable. As a result, the record contained sufficient evidence to support the 

Commission’s award of medical expenses and its decision was not against the manifest weight 

of the evidence.

¶ 56 III. CONCLUSION

¶ 57 For the reasons stated, we affirm the circuit court’s judgment confirming the 

Commission’s decision and remand for further proceedings pursuant to Thomas, 78 Ill. 2d 327, 

399 N.E.2d 1322.

¶ 58 Affirmed and remanded.