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Knell & Poulos Workers’ Compensation – Trial Result


Case Name:  Michael Burk v. Michael Nicholas

Court No.:  07MR 617; 07IWCC1355; 04WC 2489

Jurisdiction:  Kane County Circuit Court

Presiding Judge:  Judge Colwell

Respondent’s Attorneys:  Robert M. Harris (Trial) /Bradley C. Knell (Appeal)

Petitioner’s Attorneys:  Goldberg, Weisberg & Cairo

Trial Result:  IWCC decision for petitioner reversed by Circuit Court

FACTS:  The petitioner alleges that he suffered a work related accident on April 27, 2004, and injured his right knee.  The petitioner’s diagnosis was knee sprain.  The petitioner received conservative treatment and was fully released by his treating physician on September 23, 2004.  The petitioner returned to his regular duties as a carpenter.

Thereafter, on January 16, 2005, the petitioner slipped and fell on ice and returned to his treating doctor on January 21, 2005.  For the first time, an MRI for his right knee and an EMG were ordered.  The February 24, 2005 MRI shows a torn meniscus, and the March 2005 EMG revealed a diagnosis of lumbar radiculopathy.  Neither one of these conditions were diagnosed before the petitioner’s subsequent ice incident of January 16, 2005.

The Arbitrator found not only causal connection for both the back and right knee, but totally disregarded the subsequent intervening ice incident.  The Arbitrator awarded permanency and all medicals which computed to $39,165.25.

On review, the Illinois Workers’ Compensation Commission modified the Arbitrator’s Decision where they cut off the medical treatment and bills as of December 31, 2004, per the noted slip and fall incident.  Accordingly, the Illinois Workers’ Compensation Commission reduced the medicals to $27,915.23.  However, the Illinois Workers’ Compensation Commission still affirmed the permanency award of 10% of a leg and 2% man as a whole.

OUR APPEAL ARGUMENTS AND THE CIRCUIT COURT’S DECISION: We first argued that the Commission erred when they only modified the medical award and did not deny the entire medical award.  The petitioner’s counsel did not meet the Baker v. Hutson, 333 IL. App. 3rd 486, 266, IL Dec. 755 NE 2nd 623, 638 (5th Dist. 2002) and Land and Lakes v. Industrial Commission 834 NE 2nd 583 (2nd Dist. 2005) Appellate Court’s guidelines as to the admissibility of medical expenses and proving those medical expenses.  Specifically, we argued to the Court that a party seeking admission into evidence of a bill that had not been paid can establish reasonableness ”by introducing testimony of a person having knowledge of the services rendered and the usual and customary charges for such services.  Once the witness has shown to possess the requisite knowledge, the reasonableness requirement necessary for admission is satisfied once the witness testified that the bill is fair and reasonable”.  However, there is a second requirement which the Illinois Workers’ Compensation Commission frequently disregards – ”necessity”.  The same proponent of the unpaid bills must also present evidence that these charges were necessarily incurred because of the injuries sustained.

In our case at bar, Judge Colwell agreed with our position that the petitioner did not introduce one piece of evidence but met the noted Baker and Land and Lakes admissibility guidelines.  Thus, the entire medical award of $27,915.23 was reversed.

Our second argument was that the Illinois Workers’ Compensation Commission improperly modified their award in denying only medicals after December 31, 2004, but rather the Illinois Workers’ Compensation Commission should have denied any and all benefits after December 31, 2004, due to the subsequent January 16, 2005 intervening ice incident.  We contended that the Vogel v. Industrial Commission, 354 IL App. 3rd 780, 786 (2nd Dist. 2005) test should apply.  That is, (1) the accident changed the nature of the injury; not just aggravated it, and (2) the need for subsequent medical treatment.  We further argued that it was inconsistent for the Illinois Workers’ Compensation Commission to cut off medical treatment and bills after the subsequent intervening accident and not the rest of the benefits, i.e., permanency.  Judge Colwell agreed with the arguments in full and held that our case facts met the Vogel subsequent intervening test standards and that the entire finding of causal connection should be reversed.  The petitioner’s counsel tried to attempt that the petitioner had a torn meniscus the entire time and it would have been revealed if the employer would have paid the MRI test.  The petitioner’s counsel blatantly held to the Court that since the MRI was denied by the insurance company, the petitioner did not have that test until after the second intervening accident.  We countered by arguing that nowhere in the records (we had the transcript with us) did the treating doctor recommend an MRI for the right knee after the April 27, 2004 work accident, and since there was no initial MRI recommendation, there was never such a denial.  The petitioner’s counsel, after looking at his brief and briefly into the record, recanted his assertions and agreed that we were correct.  It was at that point in time that Judge Colwell ruled in our favor.

POTENTIAL DECISION IMPACT:  We feel that this is a huge victory with regard to the admissibility of medical bill requirement set forth by the Baker and Land and Lakes Decisions.  Time after time, the Illinois Workers’ Compensation Commission disregards the noted holdings requirements and simply allows all medical bills to be awarded.  At the trial level, we objected repetitively on the grounds of Baker and Land of Lakes, and still the Arbitrator awarded the entire $39,165.25 in medical bills.

Additionally, we believe that if this Decision is upheld, it will provide employers a viable defense in denying claims where there is a true subsequent, intervening accident as set forth by the Vogel Decision.  It is essential employers obtain an independent medical review to set forth the petitioner suffered a ”subsequent, intervening” accident per the Vogel guidelines.