Medical Doctors giving improper vocational Opinions?

Far too often we see medical doctors, who are qualified in their own right, are opining on injured workers vocational abilities. Thankfully, however, the Workers' Compensation Act ("the Act") has foreseen these misguided opinions and ensured that only vocational rehabilitation counselors who have the appropriate "certifications" are allowed to give such opinions. Thats not to say medical doctors cannot become certified, but they must in-fact become certified. The case summary below details out how this specific section of the Act operates when a medical doctor gives an improper vocational opinion.

Recently, the Illinois Appellate Court in the Third District of the Workers’ Compensation Commission Division (“Appellate Court”) reversed the judgment of a circuit court finding that the Illinois Workers’ Compensation Commission (“Commission”) improperly relied on an unqualified medical expert’s vocational opinion. See Monterey Mushrooms, Inc. v. Ill. Workers’ Comp. Comm’n, 2021 IL App (3d) 190754WC-U. The Appellate Court held that the circuit court abused its discretion when it relied on this improper vocational opinion and as such, warranted a remand to reconsider the case without the opinion. Id., ¶ 73.

In Monterey Mushrooms, Inc., the claimant was a forty-four year-old mushroom harvesting picker who, while harvesting mushrooms, climbed upon a mushroom rack and “fell approximately five feet onto her buttock, back and head.” Id., ¶ 36. The arbitrator found that claimant’s current condition was causally related to her work accident and awarded her PTD benefits along with additional amounts of TTD benefits and medical expenses, which the Commission unanimously affirmed. Id., ¶ 61. The circuit court went on to confirm the Commission’s decision. Id. In response, Respondent argued on appeal that the “Commission erred by (1) considering the vocational opinions of a medical expert, (2) awarding claimant PTD benefits, (3) finding that claimant’s current condition of ill-being was caused by the October 11, 2009, work accident, (4) awarding claimant additional TTD benefits, and (5) imposing penalties and attorney fees.” Id. (emphasis added). The Appellate Court however only addressed the vocational opinions of Dr. Eilers, and the arbitrator’s evidentiary rulings that were made. Id., ¶ 66.

Specifically, during the evidentiary deposition, Dr. Eilers opined “claimant was permanently and totally disabled” from her fall. Id., ¶ 65. Due to claimant’s current condition, English speaking ability, “et cetera,” Dr. Eilers insisted that claimant “could not work an eight-hour day” but “could possibly perform light sedentary work . . . [that] would ‘vary day-to-day.’” Id., ¶¶ 46-7. Respondent objected to these opinions and stated Dr. Eilers “was not a vocational expert.” Id., ¶ 47. In response, Dr. Eilers went on to admit he was not a certified rehabilitation consultant. Id., ¶ 50. However, despite this admission, Dr. Eilers’ evidentiary deposition was admitted into evidence subject to Respondent’s objections that Dr. Eilers was not a qualified vocational rehabilitation counselor. Id., ¶ 42. The arbitrator then stated that she would “make a ruling on each objection raised during that deposition.” Id. Upon review, the arbitrator “impliedly overruled Respondent’s objection by relying on Dr. Eilers’ opinion that claimant was permanently and totally disabled in the written decision.” Id., ¶ 66.

On appeal, the court noted that the standard for “[e]videntiary rulings made during the course of a workers’ compensation proceeding will be upheld on review absent an abuse of discretion.” Id. In argument, Respondent relied on People v. Hope, to show the “Commission clearly abused its discretion by allowing into evidence the vocational opinions of a medical expert, who was not qualified to render such opinions.” 2021 IL App (3d) 190754WC-U, ¶ 67; See generally 168 Ill. 2d 1 (1995). The Appellate Court found Respondent’s reliance on case law persuasive but instead looked to Section 8(a) of the Workers’ Compensation Act in its consideration. Section 8(a) provides:

[a]ny vocational rehabilitation counselors who provide service under this Act shall have appropriate certifications which designate the counselor as qualified to render opinions relating to vocational rehabilitation.

2021 IL App (3d) 190754WC-U, ¶ 68. With this standard of abuse of discretion in mind, the Appellate Court found that the Commission did in fact abuse its discretion by admitting Dr. Eilers’ vocational opinion and then relying on such opinion. Id. After Dr. Eilers himself admitted that he was neither a vocational expert nor did he assist the claimant in obtaining part-time sedentary work, it was clear to the Appellate Court that Dr. Eilers was unqualified to opine on such matters as an expert witness. Id. Even more so, the Appellate Court noted that since Respondent had made a timely objection and preserved said objection before the arbitrator, it was clear to the Appellate Court that the objection was rightfully preserved and that the error could be corrected on appeal. Id., ¶ 73.

Additionally, the Appellate Court noted that while not every admission of improper evidence will require reversal, “when an examination of the record as a whole demonstrates that the erroneously admitted evidence is cumulative and does not otherwise prejudice the objecting party, error in its admission is harmless.” Westin Hotel v. Industrial Comm’n, 372 Ill. App. 3d 527, 537 (1st Dist. 2007) (citing Greaney v. Industrial Comm’n, 358 Ill. App. 3d 1002, 1013 (1st Dist. 2005). With this in mind, the Appellate Court tried to support the Commission’s decision by looking to Dr. DePhillips who treated the claimant and opined, in a one page letter—no deposition, that she was “permanently and totally disabled from meaningful or gainful employment [. . .].”Id., ¶ 72. However, since the arbitrator’s decision failed to reveal how much weight it placed on this opinion, it was unclear if it would have made the same ruling without Dr. Eilers’ unqualified opinion. Id. Thus, the Appellate Court found that remanding the case was proper to make a new determination without Dr. Eilers’ opinion. Id., ¶ 73.

While it is possible on remand this case will come to the same result, it demonstrates the importance of ensuring timely and correct objections are not only made but preserved throughout the proceedings. Additionally, this case bolsters the importance of the Workers’ Compensation Act and supports the notion that courts should continue to scrutinize expert opinions and ensure that only those vocational rehabilitation counselors who are properly qualified are providing such persuasive opinions before a judicial body. See 820 ILCS 305/8(a). While some may view the constraints within the Workers’ Compensation Act barriers that prevent individuals from receiving their rightful benefits, Monterey Mushroom v. Ill. Workers’ Comp. Comm’n, demonstrates the purpose of those constraints and the important role they play. See generally 2021 IL App (3d) 190754WC-U.