specially concurring:
I agree with the result reached by the majority, but I write separately to more fully address the issues raised by the parties.
In refusing to allow the employer to introduce into evidence Dr. Charles Slack’s September 6, 2004, report, the arbitrator, whose decision in this regard was adopted by the Commission, found that the “commencement of trial” in this matter began when the claimant’s treating physician was deposed on May 7, 2004. As Dr. Slack’s September 6, 2004, report was not tendered to the claimant until after the treating physician’s deposition, the arbitrator concluded that the September 6, 2004, report was barred under section 12 of the Illinois Workers’ Compensation Act (Act) (820 ILCS 305/12 (West 2004)).
The relevant portion of section 12 of the Act provides:
“In all cases where the examination is made by a surgeon engaged by the employer, and the injured employee has no surgeon present at such examination, it shall be the duty of the surgeon making the examination at the instance of the employer to deliver to the injured employee, or his representative, a statement in writing of the condition and extent of the injury to the same extent that said surgeon reports to the employer and the same shall be an exact copy of that furnished to the employer, said copy to be furnished the employee, or his representative as soon as practicable but not later than 48 hours before the time the case is set for hearing. *** If such surgeon refuses to furnish the employee with such statement to the same extent as that furnished the employer said surgeon shall not be permitted to testify at the hearing next following said examination.” 820 ILCS 305/12 (West 2004).
Section 12 of the Act explicitly states that an examining physician’s report must be provided to the injured employee no later than 48 hours before the start of a hearing and that, if the report is not disclosed, the examining physician will not be allowed to testify. The Act, however, fails to define “hearing” or “testify.”
The primary goal of statutory interpretation is to ascertain and give effect to the intent of the legislature. Comprehensive Community Solutions, Inc. v. Rockford School District No. 205, 216 Ill. 2d 455, 473, 837 N.E.2d 1 (2005). The best indication of legislative intent is the language of the statute itself. People ex rel. Ryan v. Agpro, Inc., 214 Ill. 2d 222, 226, 824 N.E.2d 270 (2005). Where, as in this case, the terms of a statute are undefined, they are given their plain and ordinary meaning. Price v. Philip Morris, Inc., 219 Ill. 2d 182, 243, 848 N.E.2d 1 (2005).
A “hearing” is generally defined as “synonymous with trial.” Donovan v. Industrial Comm’n, 125 Ill. App. 3d 445, 449, 465 N.E.2d 1071 (1984). Therefore, given its plain and ordinary meaning, a hearing begins when the parties start to present their arguments and evidence to the arbitrator, not with the taking of an evidence deposition. See In re Marriage of Wright, 92 Ill. App. 3d 708, 710, 415 N.E.2d 1196 (1980) (rejecting a claim that a trial begins with the taking of an evidence deposition), vacated as moot, 89 Ill. 2d 498, 434 N.E.2d 293 (1982).
In this case, it is undisputed that Dr. Slack’s September 6, 2004, report was tendered to the claimant more than 48 before the arbitration hearing commenced on February 8, 2005. Accordingly, the employer complied with section 12 of the Act, and the September 6, 2004, report should not have been excluded.
Furthermore, Dr. Slack’s September 6, 2004, report should not have been barred because the report is not testimony. According to section 12 of the Act, if an examining physician fails to furnish a report to the injured employee, the physician “shall not be permitted to testify.” 820 ILCS 305/12 (West 2004). “Testimony” is commonly defined as “[ejvidence that a competent witness under oath or affirmation gives at trial or in an affidavit or deposition.” Black’s Law Dictionary 1485 (7th ed. 1999). As the September 6, 2004, report was not made under oath or affirmation, it cannot be considered “testimony” and, therefore, is not subject to exclusion under section 12 of the Act.
Finally, I do not believe that Dr. Slack’s September 6, 2004, report was merely commutative of evidence already before the arbitrator and the Commission. Although a previous report from Dr. Slack, dated December 15, 2002, was admitted into evidence, the basis for Dr. Slack’s opinions differed in the two reports. In his September 6, 2004, report, Dr. Slack analyzed nearly two years of additional treatment and testing. Consequently, I cannot say that the improper exclusion of Dr. Slack’s September 6, 2004, report was harmless error. Cf. Greaney v. Industrial Comm’n, 358 Ill. App. 3d 1002, 1013, 832 N.E.2d 331 (2005) (“When erroneously admitted evidence is cumulative and does not otherwise prejudice the objecting party, error in its admission is harmless”).
For these reasons, I concur with the majority’s decision to reverse the judgment of the circuit court and remand the cause for further proceedings before the Commission.