First Quarter 2018
By: Natalie Ellis and Lauren Serafin
Question: In an otherwise compensable claim, when does an employer have to pay for pre-surgical testing/treatment and pay TTD benefits while such testing/treatment occurs?
Short Answer: In Illinois, employers are required to pay for pre-surgical testing and treatment expenses if treatment is “reasonable and necessary” to safely cure the work-related injury. Employers are also required to pay TTD benefits for pre-surgical testing and treatment if the employee is off work or has not reached maximum medical improvement.
Discussion: In Illinois, an employee “is entitled to recover reasonable medical expenses, the incurrence of which are causally related to an accident arising out of and in the scope of employment and which are necessary to diagnose, relieve, or cure the effects of the employee’s injury” under Section 8(a) of the Act (820 ILCS 305/8(a)). Absolute Cleaning/SVMBL v. IWCC, 409 Ill.App.3d 463, 470 (4th Dist. 2011).
Under Illinois Worker’s Compensation law, a respondent will be liable to pay reasonable and necessary medical expenses, if a treating physician, an Independent Medication Examination (IME) physician, or both, agree that it is medically necessary first to cure a pre-existing medical condition to ensure safe treatment of a compensable work-related injury. The pre-treatment must be specifically recommended by the physician. However, preliminary treatment of the pre-existing injury need not be causally related to the work-related injury for the respondent to assume liability for medical expenses. The Commission has held employers responsible for diabetes and pilonidal cyst, and cancer treatment when a treating physician has deemed such treatment as a medical necessity prior to treating a work injury. Timothy Wilson v. Siegles Home & Building, 02 IL. W.C. 18002 (Ill. Indus. Com’n 2008); Kevin Massie v. Arc. Construction, 06 IL.W.C. 50705 (Ill. Indus. Com’n Jan. 21, 2011).
In Timothy Wilson, the respondent was held liable for medical expenses associated with a preliminary treatment of diabetes and pilonidal cyst. The Commission reasoned that “treatment of these conditions were [sic] reasonably necessary to cure the petitioner of the effects of the accidental injury.” A few years later, the Commission held respondent liable for all medical expenses after examination of petitioner’s knee revealed colon cancer. Kevin Massie. Petitioner was diagnosed with a rib fracture as a result of roof trusses collapsing, “striking him from behind and pinning him to the concrete floor.” It was noted that petitioner underwent several surgeries prior to this work accident including, surgery on his low back, a fusion of L5-S1 and four left knee surgeries. After numerous complaints of knee pain, he was referred to an orthopedic specialist. During this examination, colon cancer was discovered, and treatment of petitioner’s knee was placed on hold.
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. In these situations, pre-treatment of a pre-existing condition is considered a reasonable and necessary medical expense to cure an underlying work injury safely. In Wesley J. Whitten v. Central Cartage, 94 IL. W.C. 49516 (Ill. Indus. Com’n 1999), the petitioner sustained a compensable work injury after he slipped on ice and fractured his hip. 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 by an 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 workup 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 workup, were causally related if they were incurred to cure the petitioner’s work 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 secondarily beneficial to the petitioner. In Edwina Ellegood, v. Burwell Oil Serv., 04 IL. W.C. 26563 (Ill. Indus. Com’n 2008), the Commission held that the gastric bypass procedure was not reasonable and necessary since petitioner’s injury improved before surgery, and was not specifically recommended by the physician prior to surgery.
Regarding TTD benefits, in Illinois, an employee is eligible for TTD while they are not working or until they reach maximum medical improvement under Section 8(b) of the Act. TTD is also available when the employee returns with permanent restrictions and the employer cannot accommodate. It is well established that employers take employees as they find them. Diane Marchiori v. Evanston School District #65, 08 IL. W.C. 34514 (Ill. Indus. Com’n Sept. 23, 2011) In Marchiori, Petitioner was owed TTD benefits while treating for cancer because she was not released from care for work-related injury.
In 2002, the Commission explained the rationale behind awarding TTD benefits in cases where delay in treatment is non-work related. In Hudson v. United Parcel Service, 02 I.I.C. 0814 (Ill. Indus. Com’n Oct. 25, 2002), Petitioner sustained a work injury to her hands and knees, and the employer accepted the accident. Petitioner was prescribed arthroscopic surgery on her right knee and placed off work until further notice. While petitioner was completing standard pre-operative work, a left para-tracheal mass was found. Petitioner’s scheduled surgery was canceled, and respondent stopped paying benefits. However, according to the medical records petitioner was not released to return to work. The Commission held “[A]lthough the petitioner’s surgery was temporarily delayed because of an unrelated concurrent health condition; the petitioner was still in need of medical treatment, was unable to work and had not reached “maximum medical improvement” such that temporary total disability benefits were no longer payable. Moreover, the respondent takes the petitioner as it finds her thus the unrelated condition does not break the causal connection chain or entitlement to temporary total disability benefits.”
It is clear that in Illinois, an employer is responsible for pre-treatment of a non-work related illness, if a physician has deemed treatment reasonable and necessary to cure the work injury safely. However, if the physician fails to recommend pre-treatment prior to treatment of the work injury, then the employer will not be responsible for such treatment. Employers are also responsible for TTD benefits during pre-surgical testing and treatment as long as the employee is off work and has not reached maximum medical improvement.
Practice Tip: We recommend that the employer take the following action when addressing a pre-surgical testing or treatment situation:
- determine whether the treating doctor specifically recommended the procedure;
- obtain a second opinion and schedule an IME;
- make sure the pre-surgical treatment is deemed “medically and reasonably necessary.”
Remember, the 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. Regardless of the pre-surgical treatment, an evaluation of the financial implications should be assessed.
In regards to TTD benefits, obtain an IME to determine if light duty is possible and whether the Employer can accommodate the restriction. If the Employer cannot accommodate the restrictions, then TTD will be owed. It is important to remember that the Employee is still disabled even though they are treating for a non-work related injury; and therefore, out of the labor market. As long as the Employee can show that the work-related injury is the reason they are off work, then the Employer will be responsible for TTD.