                                         2019 IL App (3d) 170808

                               Opinion filed February 15, 2019
     ____________________________________________________________________________

                                                  IN THE

                                  APPELLATE COURT OF ILLINOIS

                                            THIRD DISTRICT

                                                   2019

     THANE HUNT,                            )     Appeal from the Circuit Court
                                            )     of the 10th Judicial Circuit,
            Plaintiff-Appellant,            )     Peoria County, Illinois
                                            )
            v.                              )
                                            )
     MAURIO HERROD,                         )     Appeal No. 3-17-0808
                                            )     Circuit No. 11-L-246
            Defendant                       )
                                            )     Honorable
     (The City of Peoria,                   )     Stephen A. Kouri,
                                            )     Michael P. McCuskey
            Intervenor-Appellee).           )     Judges, Presiding
     ______________________________________________________________________________

           JUSTICE O’BRIEN delivered the judgment of the court, with opinion.
           Justices Carter and Wright concurred in the judgment and opinion.
     _____________________________________________________________________________

                                                OPINION

¶1          While on duty as a police officer for the City of 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, the City of 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 Thane Hunt was rear-ended by defendant Maurio

     Herrod while Hunt was working as a Peoria police officer for intervenor City of 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.



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     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

     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,



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       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



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       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.

¶ 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)).



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¶ 15             An employer is granted a statutory lien on amounts 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 total

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



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       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 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.



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¶ 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



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       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.

¶ 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



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       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.




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