Ruling Adds Insult to Injury on Issues of Credit, Medical Testimony
Wednesday, May 21, 2014 | 0
In Compass Group v. Illinois Workers' Compensation Commission, 2014 Ill.App.3d 121283WC, petitioner alleged an injury while lifting a case of pop when he felt an onset of pain and purports to have heard a hissing sound. Petitioner worked the rest of the day and was seen by his physician the next morning, whereupon he was diagnosed with a sprain and immediately referred to a chiropractor. Petitioner continued to work until being seen by an orthopedic specialist who ordered an MRI and diagnosed him with stenosis. Petitioner continued to work for 2 days and woke up on the 3rd workday after his alleged injury. While preparing to leave for work, Petitioner fell down his stairs at home, suffering lacerations on several places of his body. Petitioner returned to work that day, however, he was driven to the hospital midway through the work day.
Petitioner underwent x-rays while in the hospital which revealed olecranon bursitis in his left and right elbows. After petitioner’s condition deteriorated, it was revealed petitioner suffered a blood infection and was transferred to the intensive care unit. Petitioner underwent several surgical spine procedures and was placed on a respirator for a short amount of time. He did make a recovery and was discharged from the hospital several months after admittance.
In preparation for trial, petitioner was seen by an infectious disease expert at the request of respondent, pursuant to Section 12 of the Illinois Workers’ Compensation Act. Respondent’s doctor, a well-known and respected doctor specializing in internal medicine, disagreed with petitioner’s treating doctor, a general orthopedic surgeon, as to the cause of petitioner’s blood infection. When it came time for trial, the arbitrator found the deposition of respondent’s doctor to be unnecessary and refused to require the Section 12 expert to be deposed, instead finding submission of his report at trial would not prejudice respondent’s case. When the time came for the parties to proceed, respondent and petitioner stipulated to payment of petitioner’s medical bills stating:
The parties hereby agree and stipulate that the following medical expenses would be due and owing pursuant to [Section] 8(a) and the fee schedule provisions of [Section] 8.2 of the Act in the event the matter is found compensable. However, by so stipulating, employer does not waive any objection it may have as to liability (or the reasonableness and necessity) of said expenses.We note the some-times defense, some-times petitioner/plaintiff firm of Slavin & Slavin successfully handled this seven-figure win for petitioner while the Ganan & Shapiro firm was wholly unsuccessful in defense of respondent.
In its appeal, respondent argued several issues should be overturned by the Appellate Court. It argued the Appellate Court should overturn the findings of the Workers' Compensation Commission on the issue of causation, highlighting the expertise of respondent’s Section 12 expert in comparison to Petitioner’s orthopedic surgeon on an issue of internal medicine. Second, they argued the order of the arbitrator allowing the parties to proceed without the deposition of respondent’s expert prejudiced the parties and the matter should be remanded for rehearing to allow for the deposition of respondent’s expert. Third, respondent argued any bills paid by 8(j) group health benefits should be capped at the negotiated rate and considered fully satisfied and the bills should not be paid pursuant to the Illinois medical fee schedule.
In the decision, we aren’t shocked to note the Appellate Court, Workers' Compensation Division overwhelmingly found for petitioner on each issue. The Appellate Court correctly summed up the positions of the parties stating “[t]he crux of the issue involves the divergent opinions of claimant’s treating physician, [name omitted], and respondent’s Section 12 examiner.” The Appellate Court refused to adopt the findings of respondent’s Section 12 expert on the basis “we cannot say [respondent’s expert] heightened expertise is so compelling that it renders a conclusion opposite to the Commission’s clearly apparent.”
We must note the opinions of the experts being considered in this situation is not one of two members of the same field where one expert is seemingly more experienced. The two experts in this instance practice in two entirely different fields of medicine with respondent’s examiner being an expert in internal medicine on an issue of a blood infection. We respectfully point out the expertise in question is not simply an issue of being “heightened;” it appears the question to us is whether petitioner’s expert has any expertise on the issue at hand at all.
After affirming the decision of the Commission on the issue of causation on the basis of the experts’ respective medical testimony, the Appellate Court refused to allow for a rehearing to allow for the deposition of respondent’s expert witness. The Appellate Court found the arbitrator’s refusal to allow the deposition was not an abuse of discretion that would prejudice respondent’s case.
We must note the arguments put forth by respondent, as cited in the decision, state specifically the arbitrator’s decision “scarcely addressed its concern that [respondent’s expert’s] professional background in internal medicine and infectious disease be recognized and ignored the importance of a more detailed explanation by [respondent’s expert] of the foundation and supporting evidence for his causal opinion.” The Appellate Court answers, “respondent never states what additional information would have been provided in a deposition. It never identifies any opinions in need of clarification, much less how they would have been clarified. It does not explain why [respondent’s expert’s] curriculum vitae is insufficient to establish his credentials.”
Finally, the Appellate Court examined the stipulations of the parties in regard to the payment of medical bills. Respondent contended any bills paid under 8(j) group health benefits should be considered fully satisfied at the rate paid by the group health carrier. Often times, group health carriers will negotiate a rate lower than the rate provided in the Illinois medical fee schedule which could lead to a savings if the stipulations are made correctly. According to the decision provided by the Appellate Court, respondent seemed to only stipulate that bills would be paid pursuant to Section 8(a) and Section 8.2. As such, the Appellate Court found all bills awarded in the decision of the arbitrator pursuant to the fee schedule cannot be changed to include rates previously negotiated by respondent’s group health carrier. The Appellate Court explained “having expressly agreed that these amounts were proper, respondent will not now be heard to complain of them.”
To avoid such a finding by any level of administrative review, we recommend including five simple words when stipulating to the payment of medical bills at trial. If there is any issue of payments made by a group health carrier in a workers’ compensation matter, respondents should routinely ensure the stipulation on the record includes “or any previously negotiated rate” in its statement of liability for medical bills. Including this statement effectively eliminates the need for further litigation around the liability of group 8(j) benefits and is adequately specific to ensure no credits are lost at trial.
Timothy J. O’Gorman is an attorney for Keefe, Campbell, Biery & Associates, a Chicago workers' compensation defense law firm. This column was reprinted with permission from the firm's client newsletter.
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