dissenting:
I respectfully dissent. It is time to put an end to this nonsense in workers’ compensation cases.
Initially, the issues raised by defendant are encompassed by the judgment challenged by plaintiff. As plaintiff is appealing the trial court’s denial of attorney fees and costs, as well as appropriateness of sanctions, this court should address defendant’s direct civil contempt.
Defendant was found in direct contempt by the trial court. That court did not abuse its discretion because defendant failed to follow the trial court’s order to deliver the medical records to plaintiff within the required time frame. Further, defendant continues to be in direct contempt because he admitted at oral argument he has not moved for a stay of that order nor has he complied with that order.
The trial court correctly found defendant did not comply with the relevant provisions of the Workers’ Compensation Act and rules governing practice before the Commission.
“3. This [cjourt rules the attendance and presence of a representative and counsel for [defendant David J. Fletcher, M.D., LLC, who both appeared at a workers!’] compensation hearing with original medical records for inspection by the Arbitrator in response to the [sjubpoena duces tecum does not satisfy the relevant provisions of the Illinois Workers!’] Compensation Act and Rules Governing Practice before the Commission.”
First and foremost, the legislature has mandated that defendant upon written request shall furnish complete reports of treatment or services and permit his records to be copied by the employer, employee, any party to any proceeding for compensation before the Commission, or their attorneys.
“Every hospital, physician, surgeon or other person rendering treatment or services in accordance with the provisions of this [s]ection shall upon written request furnish full and complete reports thereof to, and permit their records to be copied by, the employer, the employee or his dependents, as the case may be, or any other party to any proceeding for compensation before the Commission, or their attorneys.” 820 ILCS 305/8(a) (West 2008).
In contrast to the statute, the Commission has promulgated a rule to the contrary, that unless the parties agree otherwise, witnesses may only be required to appear and documents produced at the time and place of hearing.
“Unless otherwise agreed by the parties, witnesses or documents may only be subpoenaed to appear or be produced at the time and place set for hearing of the cause.” 50 Ill. Adm. Code §7030.50(b) (1996).
This administrative regulation is in direct conflict with section 8(a) of the Workers’ Compensation Act and is therefore invalid. The workers’ compensation statute trumps the administrative regulation insofar as the regulation may conflict with the statute. “Whenever an administrative rule conflicts with a statute, the rule will be held invalid and the statute followed.” Greaney v. Industrial Comm’n, 358 Ill. App. 3d 1002, 1026, 832 N.E.2d 331, 352 (2005), citing Montgomery Ward Life Insurance Co. v. Department of Local Government Affairs, 89 Ill. App. 3d 292, 302, 411 N.E.2d 973, 980 (1980). Further, applying the statute as written increases the efficiency of the process in keeping with the purposes of the Act.
“The Act is a humane law of a remedial nature, whose fundamental purpose is to protect employees by providing efficient remedies, and prompt and equitable compensation for their injuries. [Citation.] By its very nature, the Act mandates a duty of due diligence.” (Emphasis in original.) Contreras v. Industrial Comm’n, 306 Ill. App. 3d 1071, 1076, 715 N.E.2d 701, 705 (1999).
Therefore, defendant should have produced the records for copying upon the written request. Obviously, this would logically have to be done in a timely fashion prior to the hearing. In this case, the letter request and accompanying subpoena were issued March 31, 2009, with a reply date of April 20, 2009. Of note, the subpoena is actually a form issued by the Commission. That form has two choices to pick from:
“□ You must appear to testify before the Honorable_of the Commission at the address_on the date_at the time _, and to bring the items with you. [X] Mail the items to the address 411 Hamilton Blvd, Suite 1[,] Peoria[J IL 61602 by the date [April 20, 2009], You do not need to appear at the Commission.”
Clearly, the selection of the second option does not reflect any written agreement of the parties to produce the documents at that location or time.
Further, the Commission’s subpoena rule is nonsensical. The rule places production of medical — indeed all relevant evidence — in the control of petitioners’ attorneys. Additionally, if the medical records requested must be provided at the hearing, this would require respondents’ attorneys to request a continuance or request that proofs be left open so respondents’ attorneys could review the medical records, perhaps have a further examination of petitioners, perhaps settlement discussion, and hearing of respondents’ evidence, time which will further complicate the arbitrator’s recollection of petitioners’ cases, time for petitioners’ recovery, if any, and further payment of temporary total disability.
I do agree with the majority to the extent no specific authority then existed for ordering payment of copying costs under the workers’ compensation statute because of the Clayton decision. However, I believe Clayton was wrongly decided insofar as it found the Code (735 ILCS 5/1 — 101 et seq. (West 1996)) inapplicable to the subpoena process under the Workers’ Compensation Act. Indeed, the legislature amended the Code (735 ILCS 5/8 — 2001 (West Supp. 2001)) the year following the Clayton decision to explicitly allow facilities to be reimbursed for copying fees and costs incurred in providing medical documentation. Pub. Act 92 — 228, §5, eff. September 1, 2001. The legislative change brings into question the validity of the holding of Clayton and was meant to address the confiscatory issues which are criticized by the majority. 402 Ill. App. 3d at 1122.
Sanctions are clearly authorized under both the Workers’ Compensation Act (by the arbitrator or commissioner) or by means of contempt in circuit court.
“The Commission is empowered to enforce its rules with appropriate sanctions when they have been violated. (See 50 Ill. Adm. Code §7030.70, at 5739 (1985).)” Jones v. Industrial Comm’n, 227 Ill. App. 3d 161, 166, 591 N.E.2d 33, 36 (1992).
Here, the defendant continued to remain in noncompliance with section 12 before the circuit court. While I agree with the majority that a body attachment is an option here, it is just not the only option. To subject the medical profession to arrest for untimely or incomplete records, production, or even noncompliance where a dispute over statutory language exists seems draconian.
Here, the administrative regulations have adopted the common-law rules of evidence and the Illinois evidence act (735 ILCS 5/8 — 101 through 8 — 2701 (West 2008)) (article VIII of the Code of Civil Procedure) to the extent they do not conflict with the Workers’ Compensation Act or the administrative regulations.
“a) The Illinois common[-]law rules of evidence and the Illinois [e]vidence [a]ct (820 ILCS 305 [sic]) shall apply in all proceedings had before the Industrial Commission, either upon arbitration or review, except to the extent they conflict with the Workers’ Compensation Act, the Workers’ Occupational Diseases Act (820 ILCS 310), or the Rules Governing Practice Before the Industrial Commission.” 50 Ill. Adm. Code §7030.70(a), as amended by 20 Ill. Reg. 4053, 4059, eff. February 15, 1996.
Nothing therein conflicts with section 8 — 2001(a) of the Code (pertaining to examination of records).
“(g) Failure to comply with the time limit requirement of this [s]ection shall subject the denying party to expenses and reasonable attorneys’ fees incurred in connection with any court ordered enforcement of the provisions of this [selection.” 735 ILCS 5/8— 2001(g) (West 2008).
The majority finds the Commission subpoena unlawful because it is confiscatory of defendant’s property. However, this subpoena is lawful and comports with the statutes and regulations. All subpoenas, whether issued by the Commission or a court, are to be accompanied by a $20 handling charge. See Solon v. Midwest Medical Records Ass’n, 236 Ill. 2d 433, 925 N.E.2d 1113 (2010) (interpreting sections 8 — 2001 and 8 — 2003 of the Code (735 ILCS 5/8 — 2001, 8 — 2003 (West 2004))). The statutes contemplate a later bill for copying expenses at the time of production.
“The person *** requesting copies of records shall reimburse the facility or the health care practitioner at the time of such copying for all reasonable expenses, including the costs of independent copy service companies, incurred in connection with such copying ***.” 735 ILCS 5/8 — 2001(d) (West 2008).
Because section 7050.5(b) of Title 50 of the Administrative Code is invalid, section 8 — 2001(d) of the Code (735 ILCS 5/8 — 2001(d) (West 2008)) applies and the statutory costs for copying should have been awarded as set forth therein.
Further, the rules of civil procedure apply as stated so long as they do not conflict with the Workers’ Compensation Act. The provision for patient authorization in the Code the majority references does so conflict. Moreover, the physician-patient privilege does not apply to these records since these records are exempted by virtue of the employee having filed his workers’ compensation cause of action.
“No physician or surgeon shall be permitted to disclose any information he or she may have acquired in attending any patient in a professional character, necessary to enable him or her professionally to serve the patient, except *** (4) in all actions brought by or against the patient, his or her personal representative, a beneficiary under a policy of insurance, or the executor or administrator of his or her estate wherein the patient’s physical or mental condition is an issue ***.” 735 ILCS 5/8 — 802 (West 2008).
The majority concedes that HIPAA does not apply
Clearly, defendant failed to timely comply since, as plaintiff stated at orals, the records were produced at the hearing but plaintiff was neither shown the records nor permitted to copy them. The best practice in the future would be for all parties to agree in advance to reasonable copying costs being charged by the medical provider. However, the Commission also needs to amend its standard regulations to so state. Many statutes require fees of witnesses to be the same as fees for witnesses before the circuit court (see, e.g., 225 ILCS 320/22 (West 2008) (Illinois Plumbing License Act provision relating to witnesses at hearings, subpoenas, and fees); 210 ILCS 125/17 (West 2008) (Swimming Facility Act provision providing for subpoenas and witness fees); 55 ILCS 5/3 — 14043 (West 2008) (Counties Code pertaining to officers and employees in Cook County providing for subpoenas and witness fees)), yet the Workers’ Compensation Act does not. The Commission needs to clearly establish specific appropriate fees for witnesses, production of medical records, and photocopies consistent with the workers’ compensation statute and Code of Civil Procedure.
For these reasons, this matter should be remanded for the assessment of sanctions, including fees and costs.