Joliet Office

60 North Chicago St.
Joliet, IL 60432


Tel: 312.277.3000
Fax: 312.277.3008
Springfield Office

One West Old State Capitol Plaza
Suite 801
Springfield, IL 62701

Tel: 217.801.9733
Fax: 312.277.3008
Chicago Office

901 W. Jackson Blvd.
Suite 301
Chicago, IL 60607

Tel: 312.277.3000
Fax: 312.277.3008

Knell & Poulos Workers’ Compensation Trial Result

Case Name:  Asbach & Vanselow v. The Workers’ Compensation Commission and Thomas Gray

IWCC No.:  09 IWCC, 0241 (04 WC 29163, 44727)

Venue:  Waukegan – Arbitrator Erbacci

Respondent’s Attorneys:  John O’Grady, Trial;

Robert M. Harris, Trial Review before IWCC

Petitioner’s Attorney:  Albert Pino

SUMMARY: COMMISSION RULES AGAINST ARBITRATOR, IN PART, ON ISSUE OF PRIOR AWARDED PENALTIES AND FEES, VACATING ORDER FOR SAME, AND REDUCING MEDICAL AWARD; 8(j) CREDIT AWARDED.

 

ISSUES ON REVIEW SUBJECT TO COMMISSION MODIFICATION:

(1) Was the employer’s conduct in disputing the claimed second injury, a claimed cervical problem, claimed “severe depression’ and Dr. Lubenow’s use and reliance on a “Thermogram” and his subsequent diagnosis of “neuropathic pain of the left upper extremity with features of sympathetically mediated pain” objectively reasonable to defeat the award of penalties and fees in the amount of $63,853.59?

 

(2)  Did Petitioner meet his burden and prove entitlement to the Arbitrator’s total award of $41,104.64 in medical expenses?

 

(3)  Did the Arbitrator correctly deny employer credit under Section 8(j) of the Act? 

ANSWERS:  YES to (1) and NO to (2) and (3).  A unanimous Commission panel (Sherman, Rink, Lamborn) held that that the employer’s “challenge to liability was not unreasonable.”  Thus, the penalties of $63,853.59 were eliminated.  The Commission further found that Petitioner failed to prove the reasonableness of some of the unpaid medical charges, holding that there was an absence of evidence to support the charges from several of the providers, who offered no evidence on their behalf.  (Medical bills of $41,104.64 reduced to $7,104.30.)

The Commission further agreed with the employer’s position “that Section 16 of the Act concerns the admissibility of the records and eases the foundational requirement for admission of records. Section 16 does not create any presumption of reasonableness of medical bills.”  (emphasis added). This concept confuses many Petitioners’ attorneys as well as Arbitrators.  The Commission found that only $7,104.30 was found to be “reasonable”.  Therefore, the total medicals were reduced by $34,000.34.

Lastly, the Commission awarded the employer full credit under Section 8(j) of the Act ($24,681.35 for group medical paid and $9,811.06 for disability benefits paid) an erroneous omission by the Arbitrator which the Commission properly corrected.

TOTAL REVIEW REDUCTION$97,853.93

 

TOTAL 8(j) CREDIT AWARDED TO RESPONDENT$34,492.41

FACTS:  Petitioner sustained an undisputed bicep tendon tear and surgical repair. The employer disputed Petitioner’s later claim regarding a second accident and his claim that these accidents were causally connected to his alleged conditions of ill-being, now involving claimed cervical problems, “neuropathic pain” and “severe depression”, supported by the questionable opinions of a psychiatrist.  The Arbitrator found all these conditions to be related and awarded Petitioner benefits, including permanent total disability. Employer challenged Dr. Lubenow’s use and reliance on a “Thermogram”, a disputed diagnostic tool employer argued was not accepted by the general medical community. The Arbitrator failed to address this issue in his Decision.  The Commission, in turn, mentioned the employer’s dispute but also failed to issue a ruling.

The employer obtained the opinions of an expert neurologist to challenge those offered by the treater; however, as is far too often the case, the Arbitrator and the Commission sided with the treater (who was shown to profit from the use of the Thermogram).

SIGNIFICANCE AND LESSONS:

Large penalties and fees can be vacated when the employer relies on high-quality “differing medical opinions” and carefully builds a defense that is “objectively reasonable.” Here, for example, carefully presented evidence showed that Petitioner’s “cervical problems” appeared later, and there was ample evidence that there was “confusion” as to the source of Petitioner’s symptoms.  Employer’s expert examiner, Dr. Itkin, also did a yeoman’s job in disputing causal connection and opined that Petitioner, in fact, had no condition of ill-being as alleged.  There was no objective evidence seen.

We strongly recommend qualifying employers to always raise the 8(j) issue to get their credit and in disputed claims object to the reasonableness of medical charges when Petitioner fails to obtain evidence of same. The Commission will be compelled to follow the law and deny those bills when Petitioner fails to meet his burden of proof.  Qualifying employers should not neglect their rights under the Act and lose potential credit under Section 8(j), a benefit we believe many employers do not pursue with sufficient eagerness.

The employer will appeal this case to the Lake County Circuit Court. Petitioner’s intentions are unknown as of this date.

We will continue to keep you updated on this matter.  If you should have any questions, please do not hesitate to contact the undersigned.

Very truly yours,

KNELL & POULOS, P.C.

Bradley C. Knell