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Knell & Poulos Workers’ Compensation Trial Result

Case Name:  Global Products v. Illinois Workers’ Compensation Commission and John Hall Jr.  

Court No.:  01-08-1914WC

Venue:  Appellate Court of Illinois, 1st District

Workers’ Compensation Commission Division

Respondent’s Attorneys:  Bradley C. Knell, Adrian T. Cherikos, Jessica M. Diehl

Petitioner’s Attorney:  Neal Wishnick

SUMMARY: APPELLATE COURT RULES AGAINST ARBITRATOR, COMMISSION AND CIRCUIT COURT ON ISSUE OF AWARDED PENALTIES AND FEES, VACATING ORDER FOR SAME.

ISSUEWas 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? 

ANSWER:    YES.  A majority of the Appellate court held that that the employer’s reliance on the opinions of its examining physician were reasonable given the testimony of the physician and admissions of the Defendant’s treating doctor.   

FACTS:

The employer disputed the causal connection regarding the Petitioner’s need for a second revision fusion surgery based upon his injurious practice of continuing to smoke cigarettes and the failure of the first fusion.  The Defendant testified that no physician had advised him to stop smoking prior to his fusion surgery.  Both his treating physician, Dr. Levin and Dr. Mather testified, and their records reflected, that the Defendant was repeatedly advised to quit smoking prior to his first fusion surgery.  The Defendant did not quit smoking after his first fusion surgery and the fusion failed.

Dr. Steven Mather conducted a Section 12 Examination of the Defendant and opined the total bone loss and lack of grafting were solely the result of continued use of nicotine.  Based upon Dr. Mather’s opinion, the Employer refused to pay for a revision fusion and surgery.

The Arbitrator, as affirmed by the Commission and Circuit Court, found the Petitioner was entitled to the award of medical bills, TTD for 327 3/7 weeks, and penalties and fees in the amount of $53,847.66.  The Arbitrator based his decision on the fact that both Dr. Mather and Dr. Levin agreed the Defendant required the revision fusion surgery.  While both doctors did agree the revision fusion was necessary, the employer argued the reasons for necessity of the revision varied.

Based upon Dr. Mather’s opinions, the employer appealed the Decisions to the Appellate Court, arguing the Defendant’s continued use of nicotine despite repeated warnings to quit, constituted an injurious practice under Section 19(d).  There is very little case law construing the definition of an injurious practice under the Act.  The Appellate Court did acknowledge the dangers of smoking, but opined that because it is classified as an addiction, it did not rise to the level of an intervening cause severing the causal connection chain.  The Appellate Court further indicated there was no “requirement that an injurious practice be the sole cause of a claimant’s condition of ill being” in order for the Commission to reduce or deny compensation, finding that the Commission has sole and unfettered discretion to reduce compensation based upon injurious practices.  The A ppellate Court also found it significant that the Defendant made an unsuccessful attempt to overcome his addiction to nicotine and found that therefore he should not be penalized for this “good faith” attempt at quitting smoking.

However, the Appellate Court reversed the imposition of Section 19(k)(l) and Section 16 fees.  In doing so, the Appellate Court found the Commission and Circuit Court manifestly erred in finding the employers’ reliance upon Dr. Mathers’ opinion was unreasonable.  Dr. Mather specifically indicated in his reports and testimony that the sole factor necessitating the revision fusion was the Defendant’s continued use of cigarettes.  The Appellate Court found “respondent could rely upon Mather, and that no reasonable person could conclude that respondent was not entitled to do so.”  Based upon Dr. Mathers’ testimony and the employers’ reliance thereon, the Appellate Court found the Commission abused it’s discretion in upholding the Arbitrator’s award of penalties and fees.

Given this evidence and analysis the Court reversed the award of penalties and fees in the amount of $53,847.66 resulting in substantial savings to the client.

SIGNIFICANCE AND LESSONS:

The use of an independent medical examination pursuant to Section 12 of the Act, when properly arranged 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 and testimony of Dr. Mather was timely, well-reasoned, and reliable.  The Appellate Court specifically recognized that the employer was not unreasonable in relying upon the opinion of a Section 12 examiner in denying benefits, and accordingly reversed the imposition of penalties and fees.

While the ultimate outcome of this case is favorable for this client on the issue of penalties and fees, the effect of this decision is not exactly favorable for future workers’ compensation claims.  Effectively, the Appellate Court has reiterated that an employer takes his employee as he finds him, addictions and all, and despite the fact that these addictions may retard, complicate, and worsen his condition, they must rise to the level of intervening cause in order to prevail at trial.  This holding appears to remove the injurious practices defense from employers who happen to have medical evidence that a particular addiction affected the recovery of a claimant such that additional treatment was required.  Although reduction in benefits based upon Section 19(d) is within the discretion of the Commission, and subject to the manifest weight of the evidence standard of review, we feel it is contrary to common sense to force an employer to pay for the addictions and ramifications of those addictions, which are overcome by a large portion of the population everyday.

Recently, our fellow defense bar colleague has argued “there was no real defense present in the reported ruling” and, although misquoting which section of the Act applied, has opined that Section 19(d) should not apply to cigarette smoking.  We feel this opinion is shortsighted and lacks the resourcefulness exhibited by our defense of this claim.  The medical and scientific communities have recognized the dangers of smoking and secondhand smoke.  Dr. Steven Mather, a respected orthopedic surgeon, who has been frequently used as an IME physician by Respondents’ attorneys, testified that continued consumption of nicotine has a direct effect on the success of a fusion surgery.  The treating physician also testified in the same consistent fashion.  Dr. Mather based this testimony on well-researched and well-respected medical evidence and testified that he warned the claimant in this particular case that he must quit smoking to ensure the success of the fusion surgery.  Supposedly, the Defendant made a “good faith” attempt to quit smoking according to the Appellate Court, but he did not actually quit smoking.  (How about the patch?)  The evidence clearly shows the Petitioner’s fusion failed as a direct result.  Perhaps our fellow defense colleague missed the mark and potential benefit the success of this innovative look at the Act could have had on future Workers’ Compensation claims.  Nevertheless, we are proud to stand behind our continued commitment to raising innovative and creative defenses while challenging the overly pro-petitioner Illinois Workers’ Compensation system.

The Briefs in this case were prepared by Adrian T. Cherikos, an Associate. Junior Associate Jessica M. Diehl argued the matter before the Appellate Court.

This case was originally tried as a Section 19(b) and therefore is still pending.

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