Illinois Official Reports 

Appellate Court

Hunt v. Herrod, 2019 IL App (3d) 170808

Appellate Court 

Caption

THANE HUNT, Plaintiff-Appellant, v. MAURIO HERROD,

Defendant (The City of Peoria, Intervenor-Appellee).

District & No. Third District

Docket No. 3-17-0808

Filed

Rehearing denied

February 15, 2019

April 10, 2019

Decision Under 

Review

Appeal from the Circuit Court of Peoria County, No. 11-L-246; the 

Hon. Stephen A. Kouri and the Hon. Michael P. McCuskey, Judges, 

presiding.

Judgment Reversed and remanded.

Counsel on

Appeal

Jeff Green, of Peoria, for appellant.

John G. Dundas, of Hasselberg Grebe Snodgrass Urban & Wentworth, 

of Peoria, for appellee.

Panel JUSTICE O’BRIEN delivered the judgment of the court, with 

opinion.

Justices Carter and Wright concurred in the judgment and opinion.
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 OPINION 

¶ 1 While on duty as a police officer for the City of Peoria (Peoria), plaintiff, Thane Hunt, was 

injured in a car accident caused by defendant, Maurio Herrod. Hunt suffered another injury to 

his back in January 2010 while at a police training. Hunt filed a lawsuit against Herrod, Peoria 

intervened, and Hunt and Herrod settled their action for $75,000. Peoria asserted a workers’ 

compensation lien of $125,899.50 on the settlement. The trial court determined that Peoria was 

entitled to 10% of the lien amount and awarded it a lien of $12,589.95. On reconsideration, the 

trial court determined that Peoria was entitled to the entire lien amount. Hunt appealed. We 

reverse. 

¶ 2 FACTS 

¶ 3 On September 27, 2009, plaintiff, Hunt, was rear-ended by defendant, Herrod, while Hunt 

was working as a police officer for intervenor, Peoria. Hunt injured his back in the accident, 

sought medical treatment, and participated in physical therapy. He was released for full-duty 

work on December 3, 2009. On January 25, 2010, Hunt participated in a training exercise. That 

evening he experienced back pain and sought medical attention. He had emergency surgery on 

January 29, 2010, which did not yield a positive outcome. 

¶ 4 Hunt filed a workers’ compensation claim for the training incident but did not initially file 

a claim for the car accident. He filed for a line-of-duty pension with the police pension board, 

alleging an inability to work due to injuries from the September 2009 and January 2010 

incidents. The board determined that Hunt could not return to full-duty police work and was 

entitled to a disability pension but denied his request for a line-of-duty pension. The board 

found that Hunt’s condition was not caused by any work-related injury, specifically finding 

that he failed to prove his low back condition was caused, aggravated, or accelerated by either 

the September or January incidents. 

¶ 5 Hunt filed a personal injury action against Herrod. Peoria intervened, asserting a 

$125,899.50 lien on any recovery to which Hunt was entitled. Hunt and Herrod settled their 

action for $75,000, and Herrod is not involved in this appeal. Hunt filed a motion to adjudicate 

Peoria’s lien, seeking a reduction of the lien to $0 based on Peoria’s refusal to respond to 

Hunt’s discovery requests and Peoria’s lack of evidence linking the lien to the car accident 

payments. Peoria responded to Herrod’s discovery requests, producing payment logs from 

Peoria’s third-party administrator, which allocated payments of $5325.36 to the September 27, 

2009, accident and $119,880.13 to the January 25, 2010, incident. The logs were admitted into 

evidence. The logs also indicated each injury was given a different claim number. 

¶ 6 A hearing took place on Hunt’s motion to adjudicate the lien on June 21, 2016. Peoria 

argued that the workers’ compensation statute did not require the lienholder to prove any 

causation, the only proof necessary was that compensation was paid. The trial court rejected 

the argument and stated that Peoria was required to provide a “common nexus” between the 

injury and the settlement and to prove the lien amount and that the lien was related to Hunt’s 

workers’ compensation injury. 

¶ 7 Ed Hopkins, senior human resource specialist for Peoria, testified. He was responsible for 

the city’s risk management, safety, workers’ compensation, and liability programs. He 

determined whether to accept a workers’ compensation claim. He was involved in managing 
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Hunt’s claim. Hopkins accepted Hunt’s claim for the September 2009 accident. He received a 

notice of claim for the January 2010 injury, but he did not authorize any workers’ 

compensation payment for that claim. Hopkins prepared a document in preparation of trial 

showing that Peoria paid $125,899.50 in medical bills for Hunt. The document did not include 

an injury date or claim number. He also explained the third-party administrator payment logs 

that indicated two different claims for Hunt’s injuries and two separate payout totals: $5325.36 

for the car accident and $119,880.13 for the training injury. 

¶ 8 Hunt testified. He worked for the Peoria Police Department in the traffic division in 2009. 

He was rear-ended while on duty on September 27, 2009. He saw the department doctor, 

participated in physical therapy, and was released for full-duty work in December 2009. In 

total, he missed three days of work and was on light duty for two weeks. He had a magnetic 

resonance imaging (MRI) after the car accident; its results indicated he did not require surgery. 

Only physical therapy was recommended. Hunt had a history of low back pain, injuries, and 

aggravations prior to the motor vehicle accident. He experienced flare-ups of pain and rated his 

usual back pain as a 1 or 2 on a scale of 1 to 10, sometimes a 3. His pain increased after the 

September accident, but he was back to his normal level of discomfort when he returned to 

work in December 2009. At that time, he felt good. He participated in and completed part of 

the training in January 2010 but left early to appear in court. He told the training officers before 

the training that his back pain was at a level of 1 or 2. He did not report an injury during the 

session. When he returned home that evening, he experienced severe pain in his lower back, at 

levels he rated at 6 to 8 out of 10. He also suffered numbness below his waist in his saddle area 

and lost the ability to properly use his right leg. The symptoms were not like any he had ever 

experienced. He sought medical attention, had an MRI, and based on its results, underwent 

emergency back surgery. 

¶ 9 The trial court entered an order on August 10, 2016, finding that the evidence depositions 

of Hunt’s medical expert, Kube, and Peoria’s independent medical examination doctor, Singh, 

used at the pension board hearing were not admissible because the doctors were not 

unavailable. The court also found that Peoria had a $125,899.50 lien and that a “portion of 

expense should be allocated to the accident as an aggravating factor to what is a chronic, 

pre-existing back injury.” The court determined that Peoria was entitled to 10% of its lien 

amount, or $12,589.95.

¶ 10 Peoria moved for reconsideration, or in the alternative, Rule 304(a) language. Ill. S. Ct. R. 

304(a) (eff. Mar. 8, 2016). It argued there were no facts to support the trial court’s allocating of 

funds based on aggravation of a preexisting injury. Hunt responded to the motion to 

reconsider, arguing in the alternative, among other issues, that the trial court should adjudicate 

the lien to $5325.36, the amount documented in the payment logs as compensation for the 

September 2009 injury. On October 26, 2017, the trial court entered an order granting 

reconsideration. It found that because Peoria continued to pay workers’ compensation benefits 

to Hunt after he returned to work in December 2009, Peoria was entitled as a matter of law to 

the entire $75,000 settlement amount to satisfy its lien. Hunt appealed. 

¶ 11 ANALYSIS 

¶ 12 Hunt raises three issues on appeal: whether Peoria was entitled to the entire settlement 

amount, whether the court should have allowed the evidence depositions of his doctors, and 

whether Hunt was collaterally estopped from relitigating the cause of his injury. 
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¶ 13 The first issue we consider is whether the trial court erred in finding Peoria was entitled to 

the entire settlement amount of $75,000 to satisfy its lien. Hunt argues the trial court erred in 

awarding Peoria any amount on its workers’ compensation lien, maintaining that the court 

failed to distinguish which benefits corresponded to which of his two injuries and erred in not 

requiring Peoria to present medical evidence in support of its lien. We agree. 

¶ 14 An employee is limited to compensation under the Workers’ Compensation Act (Act) for 

on-the-job injuries. 820 ILCS 305/5(a) (West 2016). When some person other than the 

employer caused the injury and is legally liable for damages and the employee reaches a 

settlement with the third party, the employer is entitled to amounts paid out for the employee 

under the Act and a lien on the employee’s recovery. 820 ILCS 305/5(b) (West 2016). An 

employer is statutorily provided a lien on the employee’s recovery that equals the amount of 

the workers’ compensation benefits paid or owed. Johnson v. Tikuye, 409 Ill. App. 3d 37, 41 

(2011) (citing In re Estate of Dierkes, 191 Ill. 2d 326, 328 (2000)). 

¶ 15 An employer is granted a statutory lien on amounts an employee receives from third-party 

tortfeasor equal to amount of workers’ compensation benefits it paid the employee. Smith v. 

Louis Joliet Shoppingtown L.P., 377 Ill. App. 3d 5, 7 (2007). Employers are provided a right 

under section 5(b) to recover amounts paid for workers’ compensation where the employee 

settles with the third-party tortfeasor, “regardless of whether a lien has been asserted.” Scott v. 

Industrial Comm’n, 184 Ill. 2d 202, 216 (1998). An employer is not required to bring an action 

to protect its lien. Hartford Accident & Indemnity Co. v. D.F. Bast, Inc., 56 Ill. App. 3d 960, 

963 (1977). 

¶ 16 A trial court may hold an evidentiary hearing to adjudicate a lien where there are multiple 

claims that could be attributable to the injured party’s condition in order to decide what amount 

of the workers’ compensation lien attaches to the settlement. Fret v. Tepper, 248 Ill. App. 3d 

320, 328 (1993). At the hearing, the court should determine what amount of the settlement 

should be attributed to each of the incidents. Johnson, 409 Ill. App. 3d at 43. Where the 

employer has paid more compensation than the employee recovered from the third party, the 

employer is entitled to the entire recovery, less fees and costs. Id. at 42. This court reviews 

issues regarding the interpretation of the Act de novo. Evans v. Doherty Construction, Inc., 382 

Ill. App. 3d 115, 119 (2008). 

¶ 17 At the evidentiary hearing here, Peoria presented the testimony of Hopkins, the city’s 

human resources specialist. Hopkins said that he did not approve any workers’ compensation 

payments for the January 2010 injury as the city did not believe there was an injury. He 

authorized payments for the September 2009 accident in the amount of $125,899.50. Peoria 

submitted a payment log that Hopkins said he prepared in advance of the trial and indicated 

payments for Hunt’s workers’ compensation injury totaled $125,899.50. He also explained 

payment logs submitted in discovery to Hunt that were generated by Peoria’s third-party claim 

administrator and indicated two claims with injury dates of September 27, 2009, and January 

25, 2010. Various payments were allocated to each claim. The logs showed $5325.36 for the 

car accident and $119,880.13 for the training injury. 

¶ 18 Hunt argues on appeal, as he did throughout the proceedings, that Peoria was required to 

establish a nexus between the workers’ compensation payments and Hunt’s two injuries. 

Peoria maintained throughout the proceedings that it was not required to demonstrate that the 

workers’ compensation payments were related to either the car accident or the training injury. 

According to Peoria, the fact that it paid $125,899.50 in compensation entitled it to the entirety 
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of Hunt’s $75,000 settlement. The court first found that a portion of Peoria’s lien “should be 

allocated to the accident as an aggravating factor to what is a chronic, pre-existing back 

injury.” The court determined Peoria was entitled to 10% of its lien or $12,589.95. On 

reconsideration, the trial court agreed with Peoria, finding that since Peoria continued to pay 

workers’ compensation benefits, it was entitled to the entire lien as a matter of law. We find 

that both decisions of the trial court were incorrect. 

¶ 19 Fret, 248 Ill. App. 3d 320, is instructive. There, like here, the plaintiff suffered an 

on-the-job injury from a car accident, was treated, and released for full-time duty. He sued the 

at-fault driver in the accident and settled his complaint for $12,000. Id. at 322-23. He suffered 

a second injury, also on the job. Id. at 322. After the plaintiff moved to adjudicate his 

employer’s lien, the trial court determined that the employer was only entitled to recover its 

lien on the injuries that were attributed to the first accident and the third party, as the second 

one was attributable solely to the employer. Id. at 323. The reviewing court reversed and 

remanded for an evidentiary hearing to decide what payments attached to the settlement. Id. at 

328. 

¶ 20 The Fret court noted that an employer’s lien “should extend to only those expenses 

attributable to the medical aggravation of the injury.” Id. at 327. Peoria did not present any 

expert medical evidence connecting its workers’ compensation payments to the car accident 

injury. Neither party presented any medical evidence. There was no medical evidence of an 

aggravation, as the court originally determined. The only testimony regarding Hunt’s medical 

issues was his own. Hunt testified to the chronic nature of his back pain, that he had returned to 

his baseline levels of discomfort when he returned to work in December 2009, and that the 

training injury caused him levels of pain he had not previously experienced. 

¶ 21 Peoria did not present any evidence that connected the payments made for the training 

injury to the settlement. The only witness presented by Peoria was Hopkins, the human 

resource specialist. His testimony did not and could not establish a nexus between the 

payments and Hunt’s injuries. There was not any medical evidence to establish whether there 

were separate injuries or an aggravation of prior injuries. Peoria’s assertion that it denied 

workers’ compensation benefits for the second injury does not establish that injury was 

connected to the car accident. Hunt was cleared to return to work after being medically treated 

for the injuries he sustained in the accident. He testified he had returned to his baseline level of 

discomfort and there is no evidence he was not able to fully perform his duties as a police 

officer after recovering from the injuries he suffered in the car accident. 

¶ 22 Contrary to its assertions, Peoria is not entitled to a lien merely because it paid workers’ 

compensation benefits. Rather, it must establish that the payments it made were connected to 

the injury for which the employee recovered from the third party. The trial court did not have 

that evidence and could not therefore adjudicate Peoria’s lien. We find the trial court erred in 

determining Peoria was entitled to the entire settlement amount without establishing a nexus 

between the payments and the settlement injury. We further find that Peoria has waived any 

argument that its payments were connected to the training injury as it persisted in the trial court 

in arguing that it was not required to prove any nexus. On remand, Peoria should be allowed to 

show what it paid out for the car accident. Those payments end when Hunt is medically cleared 

to return to full duty in December 2009. Peoria cannot, however, argue it is entitled to the 

settlement proceeds for payments it made for the training injury. 
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¶ 23 The next issue is whether the trial court erred in rejecting evidence depositions of doctors 

Kube and Singh, both of whom were deposed for the pension board proceeding. The parties 

agreed that if the deposition of his doctor, Kube, was admitted, Singh’s deposition should also 

be admitted. Hunt argues that Kube’s deposition would have established that his injuries 

resulted from two distinct incidents, the car accident and the training incident. 

¶ 24 Illinois Supreme Court Rule 212(b) (eff. Jan. 1, 2011) allows an evidence deposition of a 

physician or surgeon to be introduced into evidence at trial on the motion of either party, and 

regardless of the deponent’s availability and without prejudicing either party’s right to call him 

as a witness. The need for an affidavit to establish the unavailability of a deponent as required 

under Illinois Supreme Court Rule 222(f)(3) (eff. Jan. 1, 2011) is not necessary when the 

deponent is a physician or surgeon. Zaragoza v. Ebenroth, 331 Ill. App. 3d 139, 143 (2002). 

This court will not reverse the trial court’s decision on the admissibility of evidence absent an 

abuse of discretion. Id. 

¶ 25 The trial court found Kube’s deposition was inadmissible because he was not unavailable 

to testify at trial. As a doctor, his availability is immaterial to the admissibility of his evidence 

deposition and his deposition should have been admitted on Hunt’s motion. Hunt and Peoria 

agreed that if Kube’s deposition was admitted, Singh’s deposition would also be admitted so 

neither evidence deposition was considered by the court. As determined above, the trial court 

could not allocate the workers’ compensation payments between Hunt’s injuries because no 

medical evidence was admitted. The medical testimony in the depositions is necessary for the 

trial court to properly determine to what portion of the lien Peoria was entitled as 

reimbursement for payments it made for the injury Hunt suffered in the car accident. On 

remand, the depositions should be admitted. 

¶ 26 Lastly, we address the issue of collateral estoppel, which Peoria submits as an alternative 

basis to affirm the trial court. Peoria argues that the doctrine bars Hunt from relitigating 

whether he suffered an injury from the January 2010 training as it was determined by the 

pension board that he did not. The trial court rejected the collateral estoppel argument on 

several occasions and Peoria did not appeal or cross-appeal that determination. See Ill. S. Ct. 

R. 303(a)(3) (eff. May 30, 2008) (after appeal filed, any other party may appeal separately or 

file a cross-appeal by filing a notice of appeal). Peoria was not entitled to argue any errors 

regarding collateral estoppel without appealing the issue. Martis v. Grinnell Mutual 

Reinsurance Co., 388 Ill. App. 3d 1017, 1024 (2009) (“[a]ppellees may not argue alleged 

errors unless they timely file a cross-appeal”). We find the issue is not properly before this 

court. 

¶ 27 CONCLUSION 

¶ 28 For the foregoing reasons, the judgment of the circuit court of Peoria County is reversed 

and the cause remanded. 

¶ 29 Reversed and remanded.