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Knell O’Connor Danielewicz Workers’ Compensation – Trial Result


Case Name:  Asbach & Vanselow v. Illinois Workers’ Compensation Commission and Jack Modaff

Court No.:  3-07-0472WC

Venue:  Appellate Court of Illinois, 3rd District / Workers’ Compensation Commission Division

Respondent’s Attorney:  Robert M. Harris


ISSUE:  Was the employer’s conduct in relying upon the medical opinions of its examining Section 12 physician objectively unreasonable so as to justify the award of penalties and fees?

ANSWERNO.  A majority of the Appellate court held that that the employer’s reliance on the opinions of its examining physician was not objectively unreasonable.

FACTS:  The employer disputed Petitioner’s claim regarding causal connection and whether Petitioner sustained a cervical injury at the time of the initial accident. Respondent had Petitioner examined pursuant to Section 12.  The examining physician offered a causal connection opinion against Petitioner, directly in contrast to that of the treating physician (who not surprisingly opined in favor of his patient).

In his narrative report, the Respondent’s examining physician noted that the treating physician did not review any of claimant’s medical records other than the diagnostic films.  Respondent’s examining physician also noted that the treating physician “suffered under the fact he was given the wrong history or an inconsistent history.”   Respondent’s examining physician opined that the treating physician’s [causal connection] opinion was based entirely on the history provided him by the claimant as he did not review the medical records from other treaters.  Lastly, Respondent’s examiner opined that claimant’s medical records were not consistent with a herniated disc because claimant failed to report “immediate neck pain”, which he opined is necessary with a herniated disc.

The Court cited to several cases discussing the issues of credibility and factual determinations, noting specifically that differing medical opinions must be weighed carefully, considering such factors as length and thoroughness of the examination, the extent of observation and testing performed, the specialty of the doctor, whether the doctor is the treating physician, and whether the doctor possessed all available information before rendering the opinion.

Applying the above analysis, the Appellate Court noted that Respondent’s examining physician “conducted a thorough physical examination of claimant…reviewed claimant’s MRI…[and]he examined many of claimant’s medical records from other treaters, and he provided a cogent explanation why he did not concur in [the treating physician’s] finding of causal connection.” The Court noted that both the treating physician and the examining physician were board certified orthopedic surgeons.

Given this evidence and analysis the Court revered the award of penalties and fees.

SIGNIFICANCE AND LESSONS:  The use of an independent medical examination pursuant to Section 12 of the Act, when properly set up and performed, using a qualified physician, can make the difference in a close-call case where penalties and fees are at stake.

While the employer unfortunately did not prevail on other issues, the IME report was all that was ultimately needed to get the employer off the hook for penalties and fees.

This case provides guidelines and factors as to what the Court will consider when deciding whether the employer’s reliance on “differing medical opinions’ is objectively reasonable.

We strongly recommend that when scheduling such an examination, all of these factors discussed above are carefully weighed and reviewed, as follows:

1.         What is the examining physician’s medical specialty?  Is his specialty directly related to the type of injury he has been called upon to examine and analyze?

2.         Since Respondent’s examining physician is not the treating physician, does the doctor possess a credible history?  Are his expert credentials exemplary?  Can he stand up to tough cross-examination by seasoned Petitioner attorneys?

3.         Was the physical examination complete and thorough, with all appropriate testing performed?

4.         Did the physician ask the claimant all necessary questions, e.g., medical history, accident history, job duties, symptoms, complaints, etc.?

5.         Did the physician thoroughly observe the claimant, taking note of all applicable responses to questions and test results?

6.         Did the physician possess all the available medical records to review and analyze prior to the actual physical examination?  Did the physician have the opportunity personally to review all diagnostic studies, such as the actual MRI films?

The Briefs in this case were prepared by Robert M. Harris, principal, and Associate Adrian T. Cherikos argued the matter at the Appellate Court.  This case was originally tried as a Section 19(b) and therefore is still pending.