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Brief Answer: Yes. Under Illinois Worker’s Compensation Law, a respondent will be liable to pay “reasonable and necessary” medical expenses, if a treating physician, an IME physician, or both agree that it is medically necessary to first cure a pre-existing medical condition, such as obesity, before safe and successful treatment of a compensable work-related injury. The pre-treatment must be specifically recommended by the physician. Furthermore, in cases with this particular outcome, the petitioner’s pre-existing condition was exacerbated by the work-related injury or a new injury formed. However, preliminary treatment of the pre-existing injury need not be causally related to the work injury for the respondent to assume liability for medical expenses. If a treating physician recommends that the petitioner undergo bariatric surgery prior to receiving treatment for a work-related injury, a client is advised to (1) determine whether the treating doctor specifically recommended the procedure, (2) obtain a second opinion and schedule an IME, (3) conclude that all weight loss measures have been discussed and exhausted, and (4) evaluate the financial implications of one gastric bypass surgery or weight loss treatments versus multiple failed attempts to treat the work injury. Resultant weight gain, regardless of causal relation to the work injury must also be considered in determining whether bariatric surgery will be deemed by the commission as “medically and reasonably necessary.”
Discussion: Under Illinois Worker’s Compensation law, where a petitioner has a pre-existing condition that must first be cured in order to successfully treat a compensable work-related injury, a respondent is liable to pay medical expenses for the preliminary treatment regardless if the pre-existing condition is “related” to the work injury. Timothy Wilson v. Siegles Home & Building, 02 IL. W.C. 18002 (Ill. Indus. Com’n 2008). A petitioner must show through the advisement of a treating physician or through secondary opinions that the preliminary treatment is “reasonable and necessary” and incurred as a “necessary part” of treating the compensable work injury. Wesley J. Whitten v. Central Cartage, 94 IL. W.C. 49516 (Ill. Indus. Com’n 1999); Edwina Ellegood, v. Burwell Oil Serv., 04 IL. W.C. 26563 (Ill. Indus. Com’n 2008). Furthermore, this rule holds true if a compensable work-related injury either exacerbates a pre-existing condition or causes a new condition to form. Timothy Wilson, 02 IL. W.C. 18002. A pre-existing condition “exacerbated” by a work-related injury, is a “reasonable and necessary” medical expense and is causally related if pre-treatment is necessary to safely cure an underlying work injury. In Wesley J. Whitten v. Central Cartage, the petitioner sustained a compensable work injury after he slipped on ice and fractured his hip. 94 IL. W.C. 49516. The petitioner had a pre-existing, ten-year history of peptic ulcers. Prior to authorized hip surgery, the petitioner’s treating physician found evidence of an actively bleeding ulcer, which was confirmed through an ordered endoscopic exam. The ulcer was first treated to stop the bleeding before the hip surgery proceeded. First, the arbitrator found that the respondent’s unpaid medical bills for the GI treatment were reasonable and necessary medical expenses incurred as a necessary part of conducting hip surgery. Because the petitioner had lost blood from his hip fracture, the arbitrator reasoned that the petitioner could not have had hip surgery without first doing the GI work-up to evaluate the safety of the surgery. Second, the petitioner’s treating physician testified that the petitioner’s pre-existing condition was aggravated by the work-related injury. The arbitrator reasoned from this testimony that all medical treatments, including the GI work-up, were causally related if they were incurred to cure the petitioner’s work injury.
Preliminary treatment of an exacerbated pre-existing condition or newly acquired condition that results from a work injury need not be causally related to become a “reasonable and necessary” medical expense. In Timothy Wilson v. Siegles Home & Building, the petitioner sustained a work-related neck injury. 02 IL. W.C. 18002. The petitioner was obese with a large frame. A post-myelogram CT scan showed multi-level abnormalities, including nerve root and spinal cord compression, which in the treating physician’s opinion required surgery. At the request of the respondent, an IME physician opined that the petitioner did not need surgery. The petitioner’s inactivity from his injury caused him to gain more weight and as a result, developed Diabetes Mellitus. The respondent denied any requested surgery.
After the arbitrator approved a settlement contract, the respondent approved and paid for a cervical anterior disc fusion at multiple levels. Due to the petitioner’s anatomy, the treating physician was unable to successfully perform the surgery, and recommended a second surgery. As a result of the first surgery, the petitioner developed complications, including a deep vein thrombosis, pulmonary emboli, and a pilondial cyst near his coccyx that, because of an infection risk, needed to be surgically removed before the second surgery. The treating physician also recommended pre-surgical treatment including a weight loss plan, nutritional counseling, and injections to control his diabetes. The respondent refused to authorize any of this treatment. The Commission held based on these facts that the respondent was liable for the costs of all medical treatments recommended by the treating doctor, including the medical expenses for the preliminary treatment of the petitioner’s diabetes and the pilondial cyst “regardless” of whether those conditions were related to the work-injury. The Commission reasoned that “treatment of these conditions was reasonably necessary to cure the Petitioner of the effects of the accidental injury.”
A treating physician “must recommend” that pre-treatment, such as gastric bypass surgery, is a medical necessity prior to treating a work injury. The pre-treatment cannot be a secondarily beneficial to the petitioner. In Edwina Ellegood, v. Burwell Oil Serv., petitioner sustained a work-related knee injury. Post-injury the petitioner had undergone gastric bypass surgery, and as a result had lost one-hundred pounds. 04 IL. W.C. 26563. The respondent disputed liability for payment of the gastric bypass procedure. The arbitrator found that although the petitioner’s leg condition improved as a result of the surgery, the petitioner ultimately failed to prove the procedure was reasonable and necessary. The arbitrator reasoned that the improvement to her leg from the gastric bypass was a secondary benefit. Although evidence from the treating doctor retroactively stated the petitioner benefited, the doctor did not specifically recommend any type of weight loss prior to the gastric bypass. Although not law, Hennessy and Roach’s defense of respondent, City of Chicago, in Dave Antunez, v. City of Chicago, 06 WC 36891, provides an example of a how to approach a treating doctor’s recommendation for bariatric surgery. Here, a morbidly obese petitioner sustained a back injury during the course of employment. The petitioner’s treating doctor recommended that he undergo a lumbar fusion. It was determined by the physician that the fusion would have a better success rate if the petitioner first underwent gastric bypass surgery in an effort to relieve stress and strain on the treated area. The physician reasoned that, because the petitioner was morbidly obese and had actually gained weight as a result of the immobilizing nature of his injury, other forms of weight loss would be futile. Respondent scheduled two IMEs for second opinions. The IMEs also confirmed that the fusion would be more successful if the petitioner underwent gastric bypass surgery. The respondent conceded and reasoned that the cost of multiple fusion attempts would be greater than the cost of gastric bypass surgery. Otherwise, the respondent would have disputed the surgery.
Although not governing in this jurisdiction, a recent Indiana case awarded gastric bypass surgery to a six-foot, 340 pound petitioner who sustained a back injury in the course of employment. PS2, LLC., v. Childers, 910 N.E.2d 809 (Ind. App. Ct. 2009). As a result of the immobilizing nature of his injury the petitioner started to gain weight. The petitioner’s treating physician, as well as an IME doctor, suggested that he should seriously consider lap-band surgery in order to decrease the risk and increase the success of the prescribed spinal fusion. The Indiana Appellate Court held that claimant’s weight condition, combined with his work-related injury to his back, produced a single injury. Therefore, the claimant was entitled to receive secondary medical treatment, in the form of lap-band surgery. This would help the claimant lose weight, as a precursor to back fusion surgery to treat the work-related back injury. There was no evidence that claimant had a weight condition prior to his injury that impaired his health or required intervention. Furthermore, the claimant’s lower back pain following the injury rendered him nearly immobile, which contributed to weight gain.
Conclusion: In conclusion, following Illinois Worker’s Compensation law, a respondent will be liable to pay reasonable and necessary medical expenses, if a treating physician, an IME physician, or both agree that it is medically necessary to first cure a pre-existing medical condition, such as obesity, before safe and successful treatment of a compensable work-related injury. The pre-treatment must be specifically recommended by the physician. Furthermore, in most cases with this particular outcome, the petitioner’s pre-existing condition was exacerbated by the work-related injury or a new injury formed. However, preliminary treatment of the pre-existing injury need not be causally related to work-related injury for the respondent to assume liability for medical expenses. Once again, if a treating physician recommends that the petitioner undergo bariatric surgery prior to receiving treatment for a work-related injury, a client is advised to (1) determine whether the treating doctor specifically recommended the procedure, (2) obtain a second opinion and schedule an IME, (3) conclude that all weight loss measures have been discussed and exhausted, and (4) evaluate the financial implications of one gastric bypass surgery versus multiple failed attempts to treat an underlying condition. Weight gain, whether or not causally related to the work-related injury must also be considered in determining whether bariatric surgery will be deemed “medically and reasonably necessary.”
Generally, amounts paid as reimbursement for travel expenses are not part of an employee’s earnings for average weekly wage (AWW) calculation. The rationale behind this rule is that such payments merely reimburse the employee for employment-related expenses that would otherwise not be incurred, and therefore, the employee will not suffer any economic loss if she fails to receive such reimbursements once the employment ceases. However, payments designated as travel expenses should be included in an employee’s AWW to the extent that such payments represent real economic gain rather than reimbursement for actual expenses incurred.
Summary: Employee was injured on two separate occasions while she worked as a flight attendant for the employer. In addition to an hourly rate of pay and premiums for certain positions, flight attendants were paid an hourly per diem expense allowance for living expenses, as flight attendants are commonly expected to stay overnight. The employee testified that only a portion of her per diem payments would be used on certain trips. At issue was whether these per diem payments should be included in the employee’s AWW calculation.
The Commission included all per diem payments in the employee’s AWW. The appellate court reversed the Commission’s decision as it was against the manifest weight of the evidence. It specifically noted that the employee was in fact using per diem money for travel expenses, thus the entire payment that the employee received did not constitute real economic gain and should not have been included when the Commission computed the employee’s AWW. The case was sent back to the Commission to determine whether and to what extent these payments exceed the employee’s actual expenses.
Effect: Per diem expense allowances, to the extent they are used for travel expenses, are not included in the calculation of AWW. The employee has the burden to prove whether and to what extent the per diem payments exceed the employee’s actual expenses in order for the excess amount to be included in AWW.
Summary: The employee became a part-time deliveryman after signing an agreement labeling him as an independent contractor. Pursuant to the written contract, the employee was paid per delivery and he was required to secure personal liability insurance on his automobile for business purposes. The contract further stated that the employee would be free from control or direction over the performance of his delivery service. The employee could refuse a delivery order, and could choose any route he wanted when making a delivery. The Commission found the employee to in fact be an employee for the employer, but the Supreme Court determined this finding to be contrary to the manifest weight of the evidence. The court noted that the employer exercised no control over the employee and contractually they were denied the right to exercise control. Additionally, the court noted the employee was paid according to the number of deliveries made, and the employee had to supply his own car and pay his own expenses including insurance with extended coverage for business usage.
Effect: The intention of the parties must be considered in order to establish whether an employer-employee or independent contractor relationship exists, but it is well established that no single factor is determinative on this issue.� The independent contractor/employee analysis can essentially be summarized in three words: right to control.� The “classic and principal test” to be applied is whether the claimed employee has the right to control the manner and method in which his work is carried out, independent of the employer’s control.� Please note that it is the right of control, not the fact of control, which is the principal distinguishing factor.� In addition to right of control, other indicia to be considered are the amount of supervision and control, the method of making payment, the right to discharge, the skills required, the source of materials and tools, and the work schedule.
Facts and Procedural PostureClaimant filed a Claim for Compensation alleging injury to the body as a whole and a psychiatric injury sustained on November, 24, 2008 after she was assaulted by a co-worker on the employers’ premises. In the section of the Claim form titled “average weekly wage”, claimant alleged the “max rate”. It was undisputed that the Employer filed its Answer to the Claim late and not within the 30 day period prescribed in 8 CSR 50-2.010(8). Claimant prevailed at trial and was awarded 45% BAW in PPD benefits payable at the maximum rate of compensation of $376.55 per week. The ALJ felt that the Employer had admitted the maximum rate for claimant’s AWW and corresponding rates due to not filing their Answer timely.
The Commission then reversed the ALJ’s award, finding that the allegation of a “max rate” was not an issue of fact and therefore not admitted due to the late filing of the Answer. Instead, it awarded PPD at the minimum rate of $40.00 per week due to claimant not presenting any evidence at trial regarding her earned wages.
IssueIs the allegation of a “max rate” for the average weekly wage on a formal Claim for Compensation an allegation of “fact” that is deemed admitted if the Employer does not timely file its Answer?
RuleThe allegation of an employee’s wage rate on the formal Claim for Compensation is a statement of “fact”.
HoldingThe Missouri Court of Appeals for the Eastern District reversed the Commission’s decision and found that the allegation of a wage rate is an issue of fact. Therefore, as the Employer’s Answer was not timely filed, the “max rate” allegation on the Claim was deemed admitted and claimant was entitled to payment of PPD benefits at the maximum rate of $376.55.
AnalysisThe Court relied upon case law (Aldridge v. Southern Missouri Gas Co., 131 S.W.3d 876 (Mo. App. S.D. 2004) which indicated that when a specific wage rate is alleged on the Claim for Compensation, this is deemed a statement of fact. Therefore if the Employer’s Answer is not timely, this fact is admitted. The Court rejected the argument that this case law did not apply because the Claim in this case pled the AWW at the “maximum rate”. In doing so, it stated that Section 287.190.5(5) provides for a specific method of computing the maximum average weekly wage based on the current state average weekly wage. As the methods for calculating the state average weekly wage are also provided specifically by statute, the Court reasoned that the allegation of a “max rate” was immaterial to the analysis under Aldridge.
The award from the Court pertained to only PPD benefits as those were the only benefits in dispute at the time the case was decided. However, dicta in the case also indicated that the analysis above would also apply to TTD benefits and result in payment of the maximum rate according to the specific date of injury.
Summary: Employee was employed as a carton packer for the employer. After the completion of his shift, the employee left the building through the door normally used by employees en route to his car which was parked in the employee parking lot. To get to the car, the employee had to step from an 8-inch curb onto the blacktop driveway. The employee was injured when he stepped down and twisted his ankle on ground with a slight slope for drainage. At issue is whether the injury arose out of his employment.
For an injury to be compensable under the Act, the injury must “arise out of” and “in the course of” employment. The phrase “in the course of” refers to the time, place and circumstances under which the accident occurred, and since the injury occurred on the premises this was not at issue in this case.
For an injury to “arise out of” the employment there must be some risk connected with, or incidental to,, the employment so as to create a causal connection to the employment. If an employee is exposed to a risk common to the general public to a greater degree than other persons, the accidental injury is also said to arise out of his employment. If the injury results from a hazard to which the employee would have been equally exposed apart from the employment, the injury will not be compensable.
The appellate court found the injury to be compensable, noting the slight slope of the pavement and the need for the employee to step from the curb to reach his vehicle not being an act required of the general public. The Illinois Supreme Court reversed and found the injury not compensable, however, as it refused to adopt the position that whenever an injury is suffered on work premises during work hours is compensable regardless of the conditions. It noted that there was nothing on the record which distinguished this curb from any other curb.
Effect: Because an injury is suffered on work premises during work hours, the injury will not automatically render the injury compensable. There must be some condition or nature of the employment that increases or contributes to the risk that led to the injury.
SB 1912 MEMORANDUM
SB 1912 becomes effective January 1, 2014. It adds to the Illinois Code of Civil Procedure Section 2-2301. This new section substantively affects settlement of personal injury, property damage, wrongful death and tort actions seeking money damages. The main provisions are as follows:
- Within 14 days of written confirmation of settlement, the settling defendant must tender to plaintiff a release.
- “Tender” means personal delivery or delivery providing a return receipt.
- If there are healthcare liens, public or private, the Plaintiff may now protect the lien holder’s interests by tendering to the defendant:
- A signed release of lien;
- A letter from plaintiff’s attorney agreeing to hold the full lien amount in a trust fund account pending final resolution of the lien;
- An offer that defendant hold the full lien amount pending final resolution of the lien;
- Documentation of an agreement of the parties on resolving the lien;
- Documentation of an agreement between plaintiff & CMS or IDHFS or private lien holder as to settlement of the lien.
- A settling defendant must pay to plaintiff all sums due plaintiff within 30 days of tender by plaintiff of the executed release and other required documentation in this section.
- If timely payment is not made, the court can enter judgment in the amount of the executed release, plus costs and statutory interest; the interest dates back to the date of tender.
- The parties may otherwise agree that this section does not apply.
- The State of Illinois & units of local government are exempt from this section.
HENNESSY & ROACH RECOMMENDATIONS:
- Make settlement negotiations contingent on the parties opting out of this provision. Do this in writing.
- Note this section only applies if a lawsuit is pending, not a pre-suit settlement.
- As the case moves towards settlement, address liens and obtain agreements in writing with lien holders to avoid settlement delays.
- Make settlement contingent upon Plaintiff’s agreement to terms set forth in the release of all claims. Prepare release ahead of time and have client’s permission as to the final terms.
- Be the master of your offer, set forth all conditions that must be satisfied by plaintiff before acceptance can occur.
- Be aware of the 14-day release tender provision, and the 30-day payment provision.
POTENTIAL PROBLEMS CREATED BY THIS NEW PROVISION:
- If there is conversion by plaintiff’s attorney of settlement monies held in trust to the prejudice of a lien holder, is defendant still liable for the lien?
- Is there conflict of laws between this section and federal law regarding Medicare liens.
- There is lack of statutory clarity on “agreements” between the parties that do not need to be in writing but satisfy the section allowing for an agreement between the parties. There could be additional litigation created by this section
- The section is drafted from plaintiff’s perspective, not from the perspective of protecting the defendant.
Operative FactsThe petitioner was a pipefitter and member of Plumbers & Pipefitters Union Local 137 (Local 137) based in Springfield. Venture-Newberg is a contractor that was hired to perform repair work in Cordova, Illinois, operated by Exelon Corporation. Cordova is approximately 250 miles from Springfield and based within the home of Plumbers & Pipefitters Union Local 25 (Local 25). Venture-Newberg discussed its manpower needs with Local 25 and Local 25 posted the positions to its membership. Due to insufficient membership, Local 25 sought members from other locals, including Local 137 to work for Venture-Newberg at the Cordova plant project. The petitioner accepted a position at the Cordova plan project.
The petitioner went to work at the Cordova plan and spent the night at a hotel nearby. On the petitioner’s way from the hotel he was staying at to his second day on the Cordova job, he was injured in a motor vehicle accident. The petitioner testified that he had to stay at a hotel because the jobsite was too far from his residence and he had to work long days and sometimes could be called in or asked to stay late. Venture-Newberg did not require the petitioner to stay at a certain place, within a certain distance, or to come in for an emergency on the date of the accident. The petitioner was not paid travel or lodging expenses while working on the Cordova project.
The arbitrator held that the petitioner failed to establish that the MVA arose out of and in the course of the petitioner’s employment with Venture-Newberg. The Commission reversed the decision of the arbitrator and held that the petitioner sustained an accident arising out of and in the course of his employment with Venture-Newberg. The circuit court set-aside the Commission’s decision. The appellate court reversed and reinstated the Commission’s decision. The Supreme Court reversed and affirmed the circuit court.
Core HoldingsThe petitioner made a personal decision to accept a temporary position with Venture at a plant 200 miles from his home. Venture-Newberg did not direct the petitioner to accept the position and the petitioner accepted the temporary position with full knowledge of the commute involved.
The petitioner’s course or method of travel was not determined by the demands and exigencies of the job. Venture-Newberg did not reimburse the petitioner for travel expenses or time spent traveling. Venture-Newberg did not direct the petitioner’s travel or require him to take a certain route to work. The petitioner made a personal decision to accept the position 200 miles away and the additional travel and risks that it entailed.
Legal SignificanceUnion employees will not be considered “traveling employees” when they accept temporary work which requires them to temporarily move to another location to perform their job duties. Such an employee traveling from a temporary residence to the plant who is injured in an MVA does not suffer a compensable work accident.