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Borrowman v. Prastein3/28/2005
Plaintiff, Charles David Borrowman, and intervenor, Watertower Paint & Repair Company, respectively appeal the trial court's order awarding Watertower a lien pursuant to section 5(b) of the Workers' Compensation Act (Act) (820 ILCS 305/5(b) (West 2002)) on Borrowman's medical malpractice settlement. Borrowman questions the propriety of the court's award and, in the alternative, the amount. Watertower disputes only the amount, arguing it is entitled to more than awarded. We reverse.
I. BACKGROUND
On April 7, 1995, Borrowman, while working for Watertower, was painting the inside of a water tower when his safety rigging collapsed, causing him to fall into the tower, fracturing his heel. Dr. Rebeccah Prastein, an orthopedic surgeon, performed surgery to repair the fracture. Soon thereafter, Borrowman developed an infection in the bone known as osteomyelitis, which Dr. Prastein treated with antibiotics. Because the infection worsened, Dr. Prastein operated again on the foot and attempted to remove the infectious area. Dr. Prastein then prescribed two more-aggressive antibiotics--Vancomycin and Gentamycin.
Although the infection had cleared by September 1995, Borrowman experienced a severe earache, some hearing loss, dizziness, and vestibular balance problems, which were later associated with the antibiotics prescribed by Dr. Prastein. Borrowman suffered irreversible damage to his inner ear. One of Borrowman's expert witnesses said the two antibiotics should not have been prescribed together without closely monitoring Borrowman's health because, when taken together, the antibiotics have a toxic effect.
With regard to the foot injury only, Dr. Prastein released Borrowman to work with restrictions on November 20, 1995, and without restrictions on July 25, 1996. Soon after the accident, Borrowman filed for workers' compensation benefits against Watertower.
In October 1997, Borrowman filed suit against Dr. Prastein and the Visiting Nurses Association of Morgan and Scott Counties (VNA) for damages resulting from the negligent medical treatment Borrowman received. Neither Dr. Prastein nor the VNA is a party to these appeals.
On January 7, 2000, pursuant to a settlement contract, Borrowman and Watertower settled the pending workers' compensation case for $230,000.
In February 2001, Borrowman filed his first petition to adjudicate Watertower's claim that it was entitled to a workers' compensation section 5(b) lien against any recovery Borrowman might receive from the malpractice case. In July 2001, Borrowman agreed to settle the medical malpractice claims for $750,000.
Within days of the settlement, Borrowman again filed a petition to adjudicate Watertower's alleged lien, and the parties engaged in discovery for the next two years.
On January 8, 2004, the trial court conducted a hearing on the adjudication of the lien. In support of Watertower's position, Arthur R. Kingery, a workers' compensation attorney from Peoria, Illinois , testified as Watertower's expert witness. Kingery had reviewed Borrowman's medical records and testified as to how much, in his opinion, of the workers' compensation settlement was attributable to the medical malpractice.
Borrowman testified on his own behalf that in January 2000, when he settled his workers' compensation claim, he was still experiencing pain in his foot and dizziness from the vestibular condition. In his opinion, he would not be able to return to work as a high-tower painter because of both injuries, not just the vestibular condition. He testified that he was unable to work after Dr. Prastein's release-to-work date because of the foot inju
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