In awarding
penalties and attorney fees pursuant to Sections 19(k), 19(l) and 16,
the Illinois Industrial Commission found defendant’s reliance on the
opinion of the examining doctor was not objectively reasonable.
Claimant
worked for defendant as a patient service technician. His job entailed
driving a truck to locations to order to fix or replace medical
instruments. He injured his neck in a work-related accident. He was
diagnosed with a large central disc herniation and spinal cord
impingement. He returned to work for six weeks as a dispatcher, but he
continued to experience pain and discomfort in his neck. He underwent a
course of physical therapy and epidural injections.
In June
1999, claimant’s treating doctor recommended surgery. Defendant’s
examining doctor recommended course of treatment. In November 2000, the
treating doctor recommended a work hardening program following a
cervical fusion. Defendant chose a second examining doctor, who opined
work hardening was not necessary. Based upon the second doctor’s
examination, a job offer allegedly based upon that examination,
defendant terminated claimant’s temporary total disability benefits in
January 2001.
The
arbitrator awarded claimant 109-6/7 weeks of temporary total disability
benefits. In addition, the arbitrator awarded penalties and attorney
fees under Sections 19(l), 19(k) and 16. The arbitrator found the report
of defendant’s second examining doctor to be wholly lacking in merit.
The doctor provided no basis for choosing to restrict claimant’s lifting
of weights to the range of 35 to 50 pounds other than the fact the
doctor found claimant to be quite muscular. Also, there was no basis for
the doctor’s determination that claimant had no restrictions on his
ability to drive, as there was no evidence within the doctor’s report
that he tested claimant’s cervical range of motion. As for the job
offer, the arbitrator noted that other than requiring lifting of 50
pounds, there was no other description of the job provided to claimant.
The job offer was made in contravention to the treating doctor’s clear
recommendation that work hardening and a functional capacity evaluation
be provided to claimant. The arbitrator pointed out that at the time the
treating doctor made these recommendations, claimant had not worked in
any significant capacity for 18 months and had undergone reconstruction
of his cervical spine. Therefore, the arbitrator found it wholly
reasonable for the treating doctor to prescribe a conditioning program
and an objective measure of claimant’s physical abilities prior to
returning him to work. Based upon the quality of the examination by
defendant’s second doctor, and defendant’s use of that examination to
develop a job offer with no medical basis, the arbitrator found
defendant acted unreasonable and without good cause in delaying payment
of claimant’s TTD benefits.
In
affirming, the Commission found defendant’s reliance on the opinion of
defendant’s second doctor was not objectively reasonable. The Commission
noted defendant generally engaged in an unreasonable and vexatious
pattern of conduct periodically throughout the course of the claim.
Also, the Commission relied on Edgecomb v. Industrial Commission,
in which the Appellate Court of Illinois reversed the Commission because
the evidence obtained from three doctors clearly outweighed another
doctor’s cursory examination. The Commission concluded that although
claimant’s benefits were eventually paid, they were unreasonably delayed
and thus subject to penalties for late payment.
