specially concurring:
I concur. I write separately to note my concurrence only with the majority’s holding that the Commission’s admission of testimony by Drs. Kornblatt and Hopkinson violated section 12 of the Act. 820 ILCS 305/12 (West 2008). When a party objects to the admission of medical testimony on section 12 grounds, the proponent of the medical testimony has the burden to prove compliance with the requirements of section 12 of the Act. The judgment of the court in the instant matter is that the employer failed to meet the specific requirement of section 12 which requires that a report of a physician who will give testimony at the arbitration hearing must be provided to the opposing party at least 48 hours prior to the commencement of the arbitration hearing. Here the record supported the finding that the reports of Drs. Kornblatt and Hopkinson were not provided to the claimant before the hearing commenced on April 20, 2004.
Having found that the proposed medical testimony was barred under section 12 of the Act, there is no need for this court to address the “good cause” provision found in Section 7030.60 of the Commission rules. 50 Ill. Adm. Code 7030.60(a). Section 7030.60 is a general evidentiary provision which provides that “[e]vidence depositions of any witness may be taken after the hearing begins only upon order of the Arbitrator or Commissioner, for good cause shown.” (Emphasis added.) 50 Ill. Adm. Code 7030.60(a). This provision applies to an evidence deposition of any party, and does not specifically address medical testimony. Medical testimony is specifically addressed by section 12 of the Act.
I would find that section 7030.60 clearly has no application to the instant matter. The “good cause” provision of section 7030.60 cannot allow an arbitrator or the Commission to excuse noncompliance with section 12 of the Act. See Board of Trustees of the University of Illinois v. Illinois Educational Labor Relations Board, 274 Ill. App. 3d 145, 148 (1995) (an agency rule or regulation which conflicts with a statute is invalid). Simply put, if a party does not comply with section 12 of the Act by providing the physician’s written report at least 48 hours prior to hearing, that physician cannot testify, either in person or by evidence deposition. Neither the arbitrator nor the Commission can excuse noncompliance with section 12 of the Act for “good cause.” While section 7030.60 of the Commission rules might allow the arbitrator or the Commission to permit the taking of an evidence deposition of an occurrence witness after the hearing has commenced, it cannot allow the taking of an evidence deposition from a physician where the proffering party has failed to provide a report from that physician to the other party prior to the commencement of the hearing. To allow the taking of that physician’s deposition after the hearing had commenced, even for “good cause” shown, would violate section 12 of the Act.
I would hold that where, as here, a party has failed to comply with section 12 of the Act, the medical testimony is barred. The Commission may not excuse noncompliance with the Act for “good cause” pursuant to section 7030.60 of Commission rules. I, therefore, disagree with the portion of the judgment of the court discussing compliance with section 7030.60 of the Commission rules.