Background
Ricky Stewart worked at a Jewel Food Stores warehouse processing damaged products. On June 13, 2017, Stewart fell and suffered a herniated cervical disc requiring surgery. He hired attorney Francine Fishel of Brill & Fishel, P.C. to pursue his workers’ compensation claim. At the July 9, 2018 arbitration hearing, Stewart testified that he fell after tripping on a tote while walking to his chair. However, Jewel’s counsel then played surveillance video—which neither Stewart nor Fishel had previously seen—showing Stewart appearing to miss his chair as he fell.
An independent medical examiner retained by Jewel, Dr. Stanford Tack, had previously opined that the fall caused a new herniated cervical disc at the C6-C7 level and aggravated preexisting lumbar conditions. Critically, Fishel never obtained or introduced Dr. Tack’s medical opinions at the arbitration hearing despite knowing an IME had been conducted. The arbitrator concluded Stewart fell due to missing his chair—a “neutral risk” not arising from employment—and denied all workers’ compensation benefits, ordering Stewart to repay $40,157.25 in previously received benefits.
When Stewart later asked Fishel to appeal to the Workers’ Compensation Commission, she initially agreed but then stated she would not handle the appeal personally. Stewart filed a pro se appeal, which the Commission denied. Stewart then sued Fishel for legal malpractice, alleging she negligently failed to obtain and introduce the favorable IME report and other evidence.
The Court’s Holding
The Illinois Appellate Court reversed summary judgment, holding that genuine issues of material fact preclude judgment as a matter of law in this legal malpractice case. The extensive record—spanning over 2,000 pages—demonstrated the case was fact-intensive and unsuitable for summary judgment. The court identified several genuine disputes: whether Fishel’s failure to secure and introduce Dr. Tack’s favorable IME opinions caused Stewart to lose his underlying workers’ compensation case; whether Stewart’s injury from missing his chair constituted a compensable workplace risk; and whether Fishel breached a promise to appeal to the Commission.
Regarding the IME report, the appellate court rejected the circuit court’s reasoning that the arbitrator would have rejected Dr. Tack’s opinions as it had rejected treating physicians’ opinions based on Stewart’s inconsistent history. Dr. Tack’s affidavit established he would have testified consistently with his written report and had reviewed the surveillance video without changing his conclusions. A reasonable factfinder could infer that presenting unrebutted expert medical evidence causally linking Stewart’s fall to his cervical injury might well have changed the arbitrator’s decision.
Similarly, whether missing one’s chair constituted a compensable workplace injury presented genuine factual questions about the nature of Stewart’s job duties and his actual work practices—questions Jewel had never raised at the arbitration hearing. The court emphasized that courts should not speculate on how a fact-finder would have treated evidence an attorney never presented; determining the fact-finder’s actual response requires proof rather than judicial assumption.
Key Takeaways
- Summary judgment is improper in legal malpractice cases when causation—whether attorney negligence caused loss of the underlying claim—involves complex factual disputes about what evidence would have persuaded the fact-finder
- Attorneys in workers’ compensation cases have a duty to obtain and present available favorable expert medical evidence; failure to investigate and secure such evidence may constitute actionable negligence
- Courts must deny summary judgment rather than speculate about how a fact-finder would have treated evidence never presented; the actual weight a fact-finder would have assigned requires trial-level determination
Why It Matters
This decision provides important guidance on the limits of summary judgment in legal malpractice litigation. Courts should resist the temptation to dismiss such cases by speculating about how a fact-finder would have treated missing evidence. The ruling reinforces that workers’ compensation attorneys have an affirmative duty to investigate and secure favorable medical evidence, including expert opinions from examiners and comprehensive medical records. An attorney’s knowledge that an independent medical examiner has been retained creates at least an obligation to attempt to obtain that report before trial.
The decision may encourage malpractice claims by workers’ compensation claimants and impose meaningful obligations on attorneys in such cases to locate, review, and strategically deploy expert medical evidence. The court’s emphasis on Fishel’s failure to even attempt to obtain Dr. Tack’s report—despite knowing of its existence—suggests that basic investigative diligence regarding available medical evidence is now an expected standard of care. This ruling could reshape workers’ compensation practice by requiring more aggressive pursuit of all potentially favorable medical evidence.