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                                Appellate Court                        Date: 2019.06.13
                                                                       08:11:02 -05'00'




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



Appellate Court    THANE HUNT, Plaintiff-Appellant, v. MAURIO HERROD,
Caption            Defendant (The City of Peoria, Intervenor-Appellee).



District & No.     Third District
                   Docket No. 3-17-0808



Filed              February 15, 2019
Rehearing denied   April 10, 2019



Decision Under     Appeal from the Circuit Court of Peoria County, No. 11-L-246; the
Review             Hon. Stephen A. Kouri and the Hon. Michael P. McCuskey, Judges,
                   presiding.



Judgment           Reversed and remanded.


Counsel on         Jeff Green, of Peoria, for appellant.
Appeal
                   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.
                                              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.


                                                    -5-
¶ 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.




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