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IN THE

APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT

INDUSTRIAL COMMISSION DIVISION

Claimant, Kevin Schnoeker, filed an application for adjustment of claim under the Workers'Compensation Act (Act) (820 ILCS 305/1 et seq. (West 2002)) while working for employer, HomebriteAce Hardware. Following a hearing on claimant's section 19(b) petition (820 ILCS 305/19(b) (West2002)), the arbitrator awarded claimant 54 weeks of temporary total disability (TTD) benefits and directedemployer to authorize claimant's prescribed cervical spine surgery. The Industrial Commission(Commission) affirmed and adopted the arbitrator's decision, and it remanded the case for furtherproceedings pursuant to Thomas v. Industrial Comm'n, 78 Ill. 2d 327, 332-35 (1980). The circuit courtconfirmed the Commission's decision, and employer timely appealed. We affirm and remand pursuant toThomas, 78 Ill. 2d at 332-35.

I. BACKGROUND

Claimant worked for employer as paint department manager. In 2000, claimant had worked foremployer for 10 years and had managed the paint department for about 5 years. On November 6, 2000,claimant heard a pop in his back while he unloaded five-gallon buckets of driveway sealer from a pallet. He continued working, but felt back pain about four hours later. Claimant reported his injury to employerand did not return to work.

On November 9, 2000, claimant saw a doctor who worked with his family physician, Dr. Garces. Claimant related the popping episode and complained of low back pain. The associate diagnosed apossible disc herniation or bulging and prescribed pain medication and light work duty. The associate alsoreferred claimant to Dr. Charisse Barta, a neurologist. Claimant returned to Dr. Garces's office forfollowup visits on November 14, and 28, 2000, and complained of continued lumbar pain. Dr. Garcesprescribed physical therapy and suggested light duty work for four hours per day for two weeks.

Dr. Barta examined claimant on November 30, 2000, and diagnosed low back pain and orderedan MRI of claimant's lumbosacral spine. She next examined claimant on December 28, 2000. In her notes,she wrote that claimant's lumbar MRI revealed a herniated disc at L3-L4 and a disc bulge at L4-L5. Shealso stated that claimant could return to work with a restriction of no lifting over 10 pounds. Dr. Garcessubsequently referred claimant to Dr. Christopher Heffner, a neurosurgeon.

According to claimant, about six weeks to two months after the accident, he began feeling pain inhis neck and upper back. Claimant testified that he had never experienced any neck problems before hisinjury, but he did experience back problems on several occasions.

At his deposition, Dr. Heffner, a board-certified neurosurgeon, testified that he first examinedclaimant on January 30, 2001. Claimant explained that he continued to experience back pain that radiatedto his right posterior hip. He also had difficulty sleeping and with sexual function. Dr. Heffner reviewedclaimant's MRI films and diagnosed herniated lumbar disc disease with back pain and hip pain. Dr. Heffnerprescribed steroid medication and a TENS unit. Claimant was already off of work and Dr. Heffner agreedwith that recommendation. Over employer's counsel's objection, he opined that claimant's condition wascausally related to his work accident.

Dr. Heffner next saw claimant on February 13, 2001. At this time, claimant complained of painto his neck that radiated to his arm. Dr. Heffner opined, over counsel's objection, that claimant's conditionat this time was causally related to his work accident. Following two lumbar epidural injections, claimantcomplained at a March 6, 2001, visit, of neck and low back pain, but no pain radiating to his legs. Dr.Heffner ordered another injection and continued physical therapy. During a March 29, 2001, visit, claimantcomplained of neck pain that radiated to his right arm and to the back of his head. The MRI films revealeddegenerative changes of the C5-C6 disc with some posterior disc bulging. Dr. Heffner recommendedcervical traction. Again, over counsel's objection, he opined that claimant's condition at this time wascausally related to his work accident. Dr. Heffner continued to keep claimant off of work andrecommended continued physical therapy and home cervical traction.

Dr. Heffner next saw claimant on April 20, 2001. He felt that claimant's neck was a moresignificant problem at this time and discussed with claimant surgical intervention. During a May 17, 2001,visit, claimant complained of neck and lower back pain and posterior headaches. He also complained ofpain radiating from his neck to his right upper shoulder and arm. Dr. Heffner's continuing diagnosis wasa herniated lumbar disc and cervical degenerative disc disease. He again discussed with claimant surgicalintervention with respect to his cervical spine. Claimant again saw Dr. Heffner on June 21, and July 31,2001. His condition had not significantly changed.

Claimant agreed to undergo the cervical surgery, and it was scheduled for September 10, 2001. However, he did not undergo the procedure because employer did not authorize it. Dr. Heffner did notsee claimant again after July 31, 2001, and never released him to return to work. According to Dr.Heffner, as of July 31, 2001, claimant's lower back condition had improved, and claimant did not complainof radicular pain to his leg. Dr. Heffner advised claimant to treat the condition on an as-needed basis. Hetestified that he would have released claimant to return to work if the cervical condition had not developed. Dr. Heffner further stated that he did not issue a report about causation with respect to claimant's cervicalspine.

On July 16, 2001, Dr. R. Peter Mirkin examined claimant on employer's behalf and reviewed hisMRI films. In his evaluation, Dr. Mirkin stated that there was no relationship between claimant's neckcondition and his work injury. He noted that claimant's neck pain did not develop for several months afterthe injury. Dr. Mirkin also stated that claimant had a very small disc bulge in his neck and that he wouldnot recommend surgery for it because it would not be beneficial. He recommended that claimant returnto work.

On February 5, 2002, the arbitrator awarded claimant 54 weeks' TTD benefits for the periodNovember 7, 2000, through November 21, 2001, and directed employer to authorize the treatmentprescribed by Dr. Heffner, including the cervical spine surgery. Finding Dr. Heffner's causation opinioncredible, the arbitrator found that claimant's condition of ill-being, including his cervical condition, wascausally related to his work accident.

On November 18, 2002, the Commission, with one commissioner dissenting, affirmed and adoptedthe arbitrator's decision. In addition, it found that employer could not reasonably claim surprise by Dr.Heffner's causation opinion and thus overruled employer's objections to his testimony. The Commissionremanded the case for further proceedings pursuant to Thomas, 78 Ill. 2d at 332-35.

On September 17, 2003, the circuit court confirmed the Commission's decision. Employer timelyappealed.

II. STANDARDS OF REVIEW

The first issue on appeal involves an evidentiary ruling. Evidentiary rulings made during the courseof a workers' compensation case will not be disturbed on review absent an abuse of discretion. Mobil OilCorp. v. Industrial Comm'n, 327 Ill. App. 3d 778, 788 (2002). An abuse of discretion occurs where noreasonable person would take the view adopted by the lower tribunal. Trettenero v. Police Pension Fundof the City of Aurora, 333 Ill. App. 3d 792, 801 (2002).

The second and third issues on appeal involve causation and the medical expenses award. TheCommission is charged with determining the question of causation, and we will not disturb its finding unlessit is against the manifest weight of the evidence. Horath v. Industrial Comm'n, 96 Ill. 2d 349, 356 (1983). The claimant has the burden of proving that the medical services were necessary and the expenses werereasonable. Gallentine v. Industrial Comm'n, 201 Ill. App. 3d 880, 888 (1990). What is reasonable andnecessary is a question of fact for the Commission, and its determination will not be overturned unless itis against the manifest weight of the evidence. F&B Manufacturing Co. v. Industrial Comm'n, 325 Ill. App.3d 527, 534 (2001). The test for determining whether a factual finding is against the manifest weight of theevidence is if there was sufficient evidence in the record to support the Commission's determination. Beattie v. Industrial Comm'n, 276 Ill. App. 3d 446, 450 (1995).

III. ANALYSIS

A. Evidentiary Ruling

Employer first argues that the Commission erred in overruling employer's objections to Dr.Heffner's causation testimony, which were based on Ghere v. Industrial Comm'n, 278 Ill. App. 3d 840(1996), because no report was tendered to employer in advance of the testimony notifying employer thatDr. Heffner would testify about the issue.

Section 12 of the Act provides, in relevant part:

"In all cases where the examination is made by a surgeon engaged by the injured employee,and the employer has no surgeon present at such examination, it shall be the duty of the surgeonmaking the examination at the instance of the employee, to deliver to the employer, or hisrepresentative, a statement in writing of the condition and extent of the injury to the same extent thatsaid surgeon reports to the employee and the same shall be an exact copy of that furnished to theemployee, said copy to be furnished the employer, or his representative, as soon as practicable butnot later than 48 hours before the time the case is set for hearing. *** If such surgeon refuses tofurnish the employer with such statement to the same extent as that furnished the employee, saidsurgeon shall not be permitted to testify at the hearing next following said examination." 820 ILCS305/12 (West 2002).

The purpose of having the claimant's physician send a copy of his or her records to the employerno later than 48 hours prior to the arbitration hearing is to prevent the claimant from springing surprisemedical testimony on the employer. Ghere, 278 Ill. App. 3d at 845.

In Ghere, the employee died of a heart attack while working as a flagman for employer. Theemployee's doctor testified that he treated the employee on several occasions, but never treated him forheart problems. The arbitrator sustained the employer's objection to the physician's testimony concerningwhether the employee's work activities or environment could or might have precipitated his heart attackbecause the opinions were not furnished to the employer 48 hours before the hearing. On appeal, this courtfound that the physician's causation opinion would have gone beyond the contents of his medical recordsbecause there was no mention of causation in the records or that the physician ever treated the employeefor a heart condition. Accordingly, we held that there was nothing in the records to put the employer onnotice that the physician had an opinion regarding causation that the employer could have requested, andwe upheld the arbitrator's exclusion of the testimony. Ghere, 278 Ill. App. 3d at 846.

Here, employer contends that the Commission cannot arbitrarily determine when an opinionconstitutes surprise testimony. It suggests that the Commission must strictly adhere to Ghere and thus anyundisclosed opinion testimony must be deemed as surprise and be barred. Employer argues that it wouldbe unduly burdensome for a court to have to regularly inquire as to what parties expect an opposing witnessto testify to in order to guarantee no surprise. We disagree.

We find no indication in Ghere that its holding must be so strictly interpreted. The Ghere court examined the physician's records and treatment history to determine whether the employer was put onnotice regarding the possibility that the physician might provide causation testimony. The court did not setforth a bright-line rule or presumption that undisclosed opinion testimony constitutes surprise. Furthermore,Ghere is factually distinguishable because the physician in Ghere had never treated the employee's heartcondition, whereas Dr. Heffner did treat claimant for his neck problems. Dr. Heffner's records containdetails about his treatment of claimant's neck complaints and therefore the records put employer on noticethat Dr. Heffner might testify as to a causal relationship between the neck condition and claimant's workaccident. Indeed, the only contested issue at arbitration was claimant's cervical injury. Employer'ssuggestion that Dr. Heffner's testimony should have been excluded is not well taken under these facts.

In sum, we conclude that the Commission did not abuse its discretion in admitting Dr. Heffner'scausation testimony.

B. Causation

Next, employer argues that the Commission's causation determination is against the manifest weightof the evidence. To obtain compensation under the Act, a claimant must show, by a preponderance of theevidence, that he or she suffered a disabling injury that arose out of and in the course of the claimant'semployment. Baggett v. Industrial Comm'n, 201 Ill. 2d 187, 194 (2002). In analyzing the "arising out of"component, we are primarily concerned with a causal connection. Sisbro, Inc. v. Industrial Comm'n, 207Ill. 2d 193, 203 (2003).

Employer contends that, notwithstanding the Ghere objections discussed above, Dr. Heffner'scausation opinion was fundamentally flawed. It asserts that Dr. Heffner opined only that there was a"possibility" of a causal relationship between claimant's neck condition and his work accident and did notexplain how the cervical complaints related to the lumbar complaints and arose out of the occurrence. According to employer, at no time during the 98 days following claimant's accident did his physicalexaminations or recitations of his medical history indicate that claimant had any cervical complaints. Moreover, Dr. Heffner did not explain how a patient complaining of lumbar pain could develop radiatingsymptoms upwards into the cervical region that could be causally related to the same injury. It is the Commission's function to weigh the testimony on causation (Pollard v. Industrial Comm'n,91 Ill. 2d 266, 277 (1982)), and we cannot conclude here that its reliance on Dr. Heffner's testimony wasunreasonable. During his deposition, Dr. Heffner testified on four occasions regarding the causalrelationship between claimant's neck condition and his work accident. In his response to the first question,which related to claimant's condition as of February 13, 2001, Dr. Heffner stated that it was reasonableto assume that there was a causal relationship. When asked to clarify this response with respect toclaimant's complains of pain radiating upward to his neck, Dr. Heffner testified, "Yes, I think that's all partof the same problem." Next, addressing claimant's condition as of a March 6, 2001, office visit, Dr.Heffner opined, in relevant part, "I think his situation does seem to be causally related to the events ofNovember." During the third interchange, which addressed causation as of claimant's March 29, 2001,visit, Dr. Heffner opined, in relevant part, "it is possible that the neck problem, in particular the painproblem relating to his neck, may be related to that, yes." Finally, when asked to opine on causation asof claimant's last office visit on July 31, 2001, Dr. Heffner replied, "Yes, I do think that there is certainlythe possibility of causal relationship, yes."

Reading the foregoing responses as a whole, we conclude that Dr. Heffner's causation testimonywas not speculative or equivocal. Cf. McRae v. Industrial Comm'n, 285 Ill. App. 3d 448, 452-53 (1996)(physician's opinion that claimant's work "may well have caused" claimant's condition of ill-being wasequivocal and ambiguous). Nevertheless, even if one medical witness is equivocal on the question ofcausation, it is for the Commission to determine which medical opinion is to be accepted, and it may attachgreater weight to the treating physician's opinion. Williams v. Industrial Comm'n, 244 Ill. App. 3d 204, 210(1993); see also Caterpillar Tractor Co. v. Industrial Comm'n, 97 Ill. 2d 35, 43 (1983). We cannotconclude here that the Commission's adoption of Dr. Heffner's testimony was unreasonable.

We also reject employer's contention that Dr. Heffner's failure to explain the link between claimant'slumbar complaints and his cervical complaints renders the Commission's reliance on his causation testimony unreasonable. It was sufficient that Dr. Heffner testified as to a causal connection. He was not necessarilyrequired to link claimant's various complaints.

Finally, we also reject employer's argument that the passage of 98 days between claimant's workaccident and his first complaints of cervical pain necessarily renders Dr. Heffner's causation testimonysuspect. Dr. Heffner testified that claimant did not relate any neck problems prior to his work accident andthat there was a causal relationship between claimant's work accident and his neck condition. It is theCommission's function to judge the credibility of the witnesses, to draw reasonable inferences from theirtestimony, and to resolve any conflicts in claimant's favor. Sisbro, Inc., 207 Ill. 2d at 207. We cannotconclude that the Commission's resolution of the causation issue was against the manifest weight of theevidence.

C. Medical Expenses

Employer's final argument is that the Commission erred in awarding claimant prospective medicalbenefits when it directed employer to authorize claimant's cervical surgery. According to employer, aprospective medical benefits award is an extraordinary form of relief that is available only when it is the onlyavailable option. We disagree.

Section 8(a) of the Act entitles a claimant to compensation for all necessary medical, surgical, andhospital services "thereafter incurred" that are reasonably required to cure or relieve the effects of injury. 820 ILCS 305/8(a) (West 2002). Specific procedures or treatments that have been prescribed by amedical service provider are "incurred" within the meaning of the statute, even if they have not yet been paidfor. Plantation Manufacturing Co. v. Industrial Comm'n, 294 Ill. App. 3d 705, 710 (1997).

In Bennett Auto Rebuilders v. Industrial Comm'n, 306 Ill. App. 3d 650, 655-56 (1999), this courtheld that the Commission's order directing the employer to provide written authorization for a prescribedsurgery was proper. In that case, which involved a section 19(b) petition, one of the claimant's physician'sprescribed a lumbar microdiscectomy. The employer refused to authorize the surgery, and the claimanthad not been released to return to work. The Commission found the surgical procedure reasonable andnecessary and ordered the employer to provide written authorization for the claimant to undergo theprocedure. On appeal, the employer argued that the Commission's future medical expense award wasagainst the manifest weight of the evidence because only one physician had opined that the surgery wasnecessary. This court disagreed and upheld the Commission's award. We held that it was within theCommission's province to adopt the medical opinion that recommended the surgery. Bennett, 306 Ill. App.3d at 655. Additionally, as the case involved a section 19(b) petition, we upheld the Commission'sdirective to the employer to provide written authorization because the opportunity to challenge the cost ofthe surgery in subsequent proceedings remained available to it. Bennett, 306 Ill. App. 3d at 656.

Here, employer attempts to distinguish Bennett by arguing that all of claimant's symptomology in thatcase pertained to the same part of the body, whereas, here, claimant is claiming injury to a different part ofthe body than that for which he was initially treated. Given that we have upheld the Commission's causationfinding with respect to claimant's cervical condition, we find this distinction irrelevant as it pertains to themedical expenses award, and conclude that Bennett controls.

We emphasize that claimant is entitled to recover only reasonable medical expenses that are causallyrelated to his work accident and that are determined to be required to diagnose, relieve, or cure the effectsof his injury. 820 ILCS 305/8(a) (West 2002). Therefore, as we noted in Bennett, 306 Ill. App. 3d at 656,because issues regarding entitlement to additional TTD benefits and permanency remain open fordetermination in further proceedings, employer may challenge the reasonableness of the cost of claimant'scervical surgery in subsequent hearings.

In sum, we conclude that the Commission's award of prospective medical benefits was not againstthe manifest weight of the evidence.

IV. CONCLUSION

For the foregoing reasons, the judgment of the circuit court of St. Clair County is affirmed, and thecause is remanded to the Commission for further proceedings pursuant to Thomas, 78 Ill. 2d at 332-35.

Affirmed; cause remanded.

McCULLOUGH, P.J., and HOFFMAN, HOLDRIDGE, and GOLDENHERSH, JJ., concur.