CLAIMS HANDLING - Back to Table of Contents

Ex-Parte Communications With Treating Doctors: Fair or Foul Play? - Back to Table of Contents - Back to WC Index
        By:  Bradford B. Ingram (Peoria)

The Industrial Commission continues to apply the Petrillo doctrine to workers' compensation cases involving employers communicating with a petitioner's treating physician. Whether the Commission's application of the Petrillo doctrine to workers' compensation cases is accurate or not, is not as relevant as the fact that they continue to apply it. Petrillo sets forth a strong public policy against ex parte communications between a plaintiff's treating physician and a defendant or its representatives. The court viewed such communications as an irreparable breach of the confidential relationship between a physician and patient.

The Industrial Commission's application of this policy to workers' compensation cases requires us to be sensitive to our methods and our manner of communication with treating physicians. Our goal should be to avoid litigation on this issue and prevent the exclusion of any favorable medical evidence due to a breach of this policy.

Section 8(a) of the Illinois Workers' Compensation Act specifically provides for the release of medical reports and records to the employer. Our workers' compensation system can only function with a free flow of information between the parties. A petitioner who refuses to turn over medical records or allow free access to such records is not entitled to benefits under the Act. Where a petitioner or counsel for the petitioner tries to limit or refuse access to all of petitioner's medical records, the employer is justified in suspending or terminating benefits to the petitioner.

Post-Petrillo cases focus on an employer having ex parte communications with petitioner's treating physician regarding the physician's opinion on causation or where the employer attempts to change the outcome of that opinion by such communication.

The Industrial Commission decision in Anderson v. Hydraulics, Inc., 99 IIC 93 (currently on review) held that a workers' compensation claimant, by virtue of filing an application for adjustment of claim, does not waive the physician/patient privilege. There is a strong public policy surrounding the physician/patient privilege and workers' compensation carriers and employers must respect that privilege while gathering the medical information from treating physicians as provided under section 8(a). The consequences of violating this privilege is the exclusion of favorable evidence.

In Anderson, the petitioner suffered a left wrist fracture from repetitive lifting. He was eventually referred to a hand surgeon who found causal connection based upon an inaccurate history. A rehab nurse wrote the doctor in order to clarify his causation opinion. She provided the doctor with a more accurate description of petitioner's work activities. She also provided the doctor with additional medical records, a job description and a videotape of the job. She asked the doctor to address the issue of causation as it relates to repetitive motion. He responded with his opinion that he did not think the repetitive motion as depicted in the tape could have been the cause for the left wrist fracture. The arbitrator rejected respondent's evidence based on this violation of the physician/patient privilege. Respondent was not allowed to submit the job description, the videotape, the doctor's report or testimony from the rehab nurse. The arbitrator then found a causal relationship between the fracture and the job duties. The Industrial Commission allowed the job description, the videotape and the nurse's testimony on non-Petrillo issues. They held that the comments by the nurse which resulted in the doctor's letter violated the doctrine of physician/patient confidentiality.

The submission of a written job description, a videotape of the job, and other matters to accurately describe a job should be presented to respondent's own expert or IME physician. If a treating physician has inadequate or inaccurate information on which to base an opinion, that opinion is as weak as the inaccurate information and should enhance respondent's chance of
prevailing with an expert opinion which is based on accurate and more complete information.

Respondents should avoid dealing with treating physicians as they would their own experts. Treating physicians can be confronted with this information during cross-examination at trial or during a deposition.

While section 8(a) gives employers the right to access all of petitioner's medical records, including the records of a treating physician, there are no cases specifically denying contact between the employer and a treating physician regarding a petitioner's ability to return to work, the nature and extent of any restrictions, the suitability of modified work or the treating physician's opinion about whether the condition is work-related or not. These inquiries occur on a daily basis as this free-flow of information is necessary to facilitate the process of returning employees to work as claims proceed and is helpful to the employee regardless of how the court might apply Petrillo to "any contact" by the employer with the treating physician.

A strict application of the Petrillo doctrine would essentially take the treating physician out of the picture as far as the day-to-day need for information in order to return injured workers to work. These types of inquiries are consistent with section 8(a)'s need for free-flow of information to facilitate return to gainful employment. None of these inquiries should be viewed as a breach of the physician/patient privilege in the workers' compensation system. While the employee does not waive the physician/patient privilege by filing an application for adjustment of claim, a treating physician's role in the workers'  compensation system resuscitates an accommodation of that privilege in order to facilitate the employee's recovery and return to employment. A strict application of the common law rule in Petrillo to the workers' compensation system and statutory
scheme set forth in section 8(a) of the Act would seriously impede an employer's efforts to return injured workers to gainful employment.

While there are no cases indicating the contact as described above is allowed, a reasonable interpretation of the statute and its purpose suggests these types of inquiries are consistent with section 8(a)'s need for free-flow of information and should not be considered a breach of the physician/patient privilege under the workers' compensation system. Such inquiries are in the
petitioner's best interest so that benefits can continue without unnecessary suspension or termination. There must be contact and dialogue between the treating physician and the employer and its representative regarding petitioner's recovery, medical status, work-relatedness and ability to return to gainful employment. This is true where the petitioner is represented by counsel and
more importantly for the pro se petitioner who is ill-equipped to communicate and obtain the necessary information.

Our workers' compensation system should not remove the treating physician from it by a strict application of the common law rule in Petrillo. Petitioners and respondents need to communicate and conduct themselves in good faith with respect to the free-flow of medical information. While inappropriate and unwarranted contact focused on advocacy and influence should be avoided, employers need to work carefully with the petitioner and his physician to facilitate the receipt of appropriate and irrelevant medical records and information so that prompt and accurate decisions can be made.

The recent Petrillo decisions do not take away an employer's right to terminate or suspend benefits for an obstructive petitioner who refuses or unreasonably limits access to medical information. If any contact with a treating physician constitutes a violation of Petrillo, the petitioner will be required to either authorize such contact or assume the burden and obligation of providing substantial information. Petitioners will not be able to provide such information and avoid delays, suspension and/or termination of benefits. The free flow of information required for the workers' compensation system to function properly will be impaired.

While employers should avoid unnecessary and inappropriate contact with treating physicians regarding complex opinions relating to causation and compensability, the Act requires the involvement of the treating physician and the release of information and medical opinion and judgment regarding return to work, work restrictions, ability to perform modified work, and the work-relatedness of the treatment.

Reimbursement for Travel Expenses Included in Average Weekly Wage Computation - Back to Table of Contents - Back to WC Index
        By:  Kevin J. Luther (Rockford)

In a case of first impression, the Illinois Appellate Court, Industrial Commission Division, recently considered whether or not payments to employees designated as "reimbursement" for travel expenses should be included in calculation of an employee's average weekly wage. To the extent that such payments represent real economic gain rather than actual reimbursement for
actual cost of business travel, they may be included.

In Swearingen v. Industrial Commission, 298 Ill. App. 3d 666, 699 N.E.2d 237, 232 Ill. Dec. 790 (5th Dist. 1998), both of the claimants were long haul truck drivers and were members of a "two person crew". Both were earning .11 cents per mile and were paid about $400 per week. Testimony was presented that the company treated 50% of each driver's gross pay as
reimbursement for travel expenses, rather than earned income.

The Industrial Commission determined that one-half of the pay was not earned income, but was reimbursement for travel expenses, and therefore, was not to be included in the average weekly wage calculation. On appeal, the claimants contended that their per diem allowance was not reimbursement for any actual travel expenses but that the employer merely designated one-half of their wages as reimbursement to reduce the amount of State and Federal taxes withheld.

The Appellate Court observed that, in other jurisdictions, the general rule provided that payments designated as "reimbursement" for travel expenses should be included when calculating an employee's average weekly wage to the extent that such payments represent real economic gain, rather than reimbursements for actual cost of business travel. As in many of the cases from the other jurisdictions, the two employees in this appeal were not required to keep any kind of expense record or turn in any receipts to receive the so-called reimbursement. Additionally, the Appellate Court noted that it was significant that the drivers were entitled to a one week paid vacation at $400 per week. If in fact one-half of the amount the employer paid its drivers was for reimbursement for travel expenses, then the Appellate Court would have expected the vacation pay to have been only $200 because the drivers would not have been incurring any work-related expenses while on vacation.

On this basis, the Industrial Commission's decision was reversed. According to the court, if in fact "reimbursement" for travel expenses did represent real or economic gain, rather than documented actual reimbursement for out-of-pocket costs incurred during business travel, then the so-called "reimbursement" would be included in the average weekly wage calculation.

Recovering Your Workers' Compensation Lien - You May Have More Options Than You Think - Back to Table of Contents - Back to WC Index
        By:  Craig S. Young (Peoria)

Section 5(b) of the Workers' Compensation Act provides the employer with a right to recover certain portions of benefits paid to an employee where the employee has obtained a third-party judgment or settlement. It is elementary workers' compensation law that this section of the Act creates a statutory lien which must be honored by the petitioner and by the negligent third party.

In most third-party action situations, the parties to the third-party action are very cognizant of the workers' compensation lien and will either make sure the lien is honored or attempt to negotiate some resolution of the lien prior to settlement of the third-party case. It is not completely uncommon, however, for a third-party action to be resolved, or settled, prior to resolution of the workers' compensation case. In rare situations, the petitioner will, either by negligence or intent, settle the third-party case, and pocket the money without honoring the lien. Until recently, there was some question as to an employer's remedy in such situations.

On a very complicated set of procedural facts, the Illinois Supreme Court addressed this situation in the case of Emma Scott v. Industrial Commission, 184 Ill. 2d 202, 703 N.E.2d 81, 234 Ill. Dec. 469 (1998). This case, which clearly involved some very acrimonious litigation, included a scenario in which the petitioner settled a third-party action and kept all of the proceeds without honoring any portion of the employer's lien. This appears to have been done with intent, as the petitioner argued that the employer waived its right to recover the lien by virtue of having withdrawn its petition to intervene in the third-party action. The employer had decided to withdraw the petition to intervene in order to protect a coverage argument it was making in the workers' compensation case. The employer responded to this by deducting from its payment to the petitioner the full amount of its statutory lien. The employer claimed it was entitled to a credit in the workers' compensation case for its section 5(b) lien.

The Appellate Court, Industrial Commission Division, found for the petitioner and held that the circuit court third-party action was the only venue in which the employer could assert and recover its lien. Fortunately, the Supreme Court reversed and took an expansive view of the employer's 5(b) lien. The Court first held that, since section 5(b) uses the term "may" with regards to an employer's right to intervene, the statute does not require an employer to actually have intervened in the third-party action in order to assert and recover its lien. While the employer does, in such situations, forego a means of enforcing its claim, the employer does not forfeit its right to recover amounts paid. The Court therefore held that an employer may make a claim for credit following the conclusion of a third-party proceeding without having obtained a lien in that proceeding. The Commission, which entered the original compensation award, was the proper place to determine whether an employer or its insured is entitled to credits for amounts received by an employee in a third-party proceeding. The Court stated that, if the rule were
otherwise, an employee would be able to receive and retain a double recovery.

This case provides strong support for employers in those rare situations where a petitioner unilaterally resolves a third-party claim prior to resolution of a workers' compensation case. In all such situations, the employer can now simply deduct from any ultimate workers' compensation payments seventy-five percent of the amount recovered by the petitioner.

The Scott case, however, should not cause an employer to become complacent about its lien. In certain situations, petitions to intervene in the third-party action will still be appropriate. Also, it remains good practice to advise all relevant parties of your lien rights and to further demand that the petitioner seek your approval before settling or otherwise resolving a third-party action. Unfortunately, the Scott decision does not address a petitioner's obligation to obtain the employer's approval before settling a third-party action, and leaves open the possibility that a less than experienced attorney could, without employer approval, settle a third-party action for less than its value. Despite these limitations, the Scott decision should be viewed as an additional tool in reducing workers' compensation exposure by virtue of potential lien recovery.

Supreme Court Speaks on Timing of Waiver of Section 5(b) Liens - LaFever v. Kemlite Co. - Back to Table of Contents - Back to WC Index
        By:  Brad A. Elward (Peoria)

The Illinois Supreme Court recently clarified the law as to the proper timing for waiving an employer's workers' compensation lien and the effect of that waiver on the employer's liability for fees and costs under section 5(b).

In LaFever v. Kemlite Co., 185 Ill. 2d 380, 706 N.E.2d 441, 235 Ill. Dec. 886 (1998), the Court held that an employer may waive its workers' compensation lien even after the return of the jury's verdict. Also significant in the decision was the Court's holding that a post-judgement/post-verdict waiver of lien did not obligate the employer to pay any fees or costs under section 5(b), which governs employer's lien reimbursement. According to the Court, "[n]othing in section 5(b) required [the employer] to waive the lien by a date certain if it wanted to forgo payment of statutory fees and costs".

LaFever gives employers confidence that they may wait until the verdict is rendered before making their final decision as to whether they should waive its lien. When an employer chooses this route, however, it must file its motion to dismiss the defendant's contribution claim and waive its lien within the 30-day time period allowed for filing a post-trial motion.

FROM THE APPELLATE CORNER - Back to Table of Contents
        By:  Brad A. Elward (Peoria)

The Decision to Appeal - Back to WC Index
One of the most common questions asked after an Industrial Commission decision by counsel and adjuster alike is "should I appeal?" Whether the Commission has just awarded the petitioner permanent total disability or simply concluded on a section 19(b) that causation exists between the accident and the condition of ill-being, the questions which must be answered are, for the most part, the same.

In all cases, the decision whether to appeal must be contingent on an objective analysis of the governing standard of review and what must be shown to overcome that standard. While three standards of review exist - abuse of discretion, manifest weight of the evidence, and de novo - the most common is that of the manifest weight of the evidence, under which the party seeking
review must show that an opposite result is clearly apparent. This standard applies on factual issues as well as those relating to witness credibility, the weight of medical evidence, and accident and causation.

The abuse of discretion standard applies primarily to questions of admissibility of evidence and the de novo standard, which means that the appellate court reviews the issues a new and without deference to the Commission, applies to pure questions of law.

The manifest weight of the evidence standard requires the party seeking review to show more than the existence of a different inference or a dispute between witnesses or physicians. In Freeman United Coal Mining Company v. Industrial Comm'n, 283 Ill. App. 3d 785, 670 N.E.2d 1122, 219 Ill. Dec. 234 (5th Dist. 1996), the court commented that it will affirm a Commission decision "if there is any legal basis in the record which would sustain that decision, regardless of whether the particular reasons or findings contained in the record are correct or sound".

The strong deference given to Industrial Commission decisions means that, if a petitioner testifies to a work-related accident and a condition of ill-being and a physician causally relates that condition to the employment accident, a Commission decision finding the claim compensable and a causal relationship is highly unlikely to be reversed. Moreover, this is true even if the Record reveals that the petitioner was impeached, that she had a prior similar medical condition, that the opining physician merely stated that the accident "might or could have caused the injury", and that the employer's IME testified that the condition was not related to the employment. It also holds true in the event there is a dissent.

In any case where the probable questions for review involve factual issues, counsel and adjuster should ask, "is there some evidence (whether we agree with it or not) in the Record that supports the Commission's decision?" If the answer is "yes", then an appeal should probably not be pursued.

Viable appeals as an appellant on manifest weight of the evidence issues should be limited to situations such as:

• a physician's testimony of causation is ambiguous or not stated with the requisite level of certainty;
• the facts relied upon by the Commission are misstated or not within the Record;
• the physician proffering the medical opinion is an IME and bases his or her opinion on an incomplete examination of the petitioner; or
• the Commission's decision has been reversed by the circuit court.

Unfortunately, the vast majority of the cases presented for consideration by the Appellate Court, Industrial Commission Division, are destined for defeat before they are even filed simply because the harsh manifest weight of the evidence standard cannot be met. Indeed, the court's attitude towards cases raising simple manifest weight of the evidence arguments has been somewhat hostile of late, with the court showing little interest in reversing the Commission. All in all, a recognition of these points will assist in the evaluation of whether an appeal should be taken.

CASE LAW UPDATE - Back to Table of Contents

These represent some of the more significant decisions of the Illinois Supreme Court, the Appellate Court, Industrial Commission Division, and the Industrial Commission, over the past quarter.

Arising Out Of and In the Course Of - Back to Table of Contents - Back to WC Index
Waldorf Corp. v. Industrial Comm'n, 303 Ill. App. 3d 477, 708 N.E.2d 476, 236 Ill. Dec. 890 (1st Dist. 1999) - The court held that the condition termed "fibromyalgia" can be considered a compensable injury under the Workers' Compensation Act where it is proven to be a disabling condition arising out of and in the course of the employment. In so ruling, the court commented that there is no statutory requirement that a claimant produce evidence of objective conditions or symptoms in order to support a claim, nor is there any requirement that the cause of the condition be fully understood medically. "A finding that a disease is work-connected will not be reversed as being based on speculation and conjecture merely because the medical profession does not fully understand the etiology of the disease." The court relied upon one treating physician's testimony that the condition "might or could" have been caused by her employment and on a "chain of events" which showed that the claimant did not have the condition prior to her employment.

Jensen v. Industrial Comm'n, 199 Ill. App. LEXIS 242, 711 N.E.2d 1129, 238 Ill. Dec. 468 (1999) - In a three-to-two decision, the Appellate Court, Industrial Commission Division, affirmed the Commission's determination that petitioner failed to prove that his accident while riding an ATV was compensable. Petitioner, a co-pilot of a company that provided private air
transportation, struck a tree while riding an ATV at his employer's estate. Petitioner had flown his employer's family to the estate and had been allowed to ride ATVs for recreation. Petitioner did not wear a helmet and drove the ATV at a high rate of speed over unfamiliar terrain.

According to the majority, whether an injury to a traveling employee arises out of and in the course of the employment depends upon the reasonableness of the specific conduct and whether it might normally be anticipated or foreseen by the employer. The court noted that there was evidence that the petitioner was acting unreasonably and that his conduct was not foreseeable to
the employer. The dissent argued that the employer here should have known that the petitioner would engage in ATV riding and that he was behaving dangerously because, on prior occasions, petitioner had refused to wear a helmet. Moreover, the dissent reasoned that the respondent had provided the ATV for use over a 5,000 acre track.

Repetitive Trauma - Back to Table of Contents - Back to WC Index
AC & S v. Industrial Comm'n, 304 Ill. App. 3d 875, 710 N.E.2d 837, 238 Ill. Dec. 40 (1st Dist. 1999) - The court found that petitioner's carpal tunnel syndrome was causally related despite the fact that it did not manifest itself until after he was terminated for non-health related reasons. The court stated that a repetitive trauma injury is compensable even where the injury occurs at a time and place remote from the employment so long as its cause is something that occurs entirely within the time and place limits of the employment.

Traveling Employees - Back to Table of Contents - Back to WC Index
Complete Vending Services, Inc. v. Industrial Comm'n, 1999 Ill. App. LEXIS 352 (2nd Dist., May 26, 1999) - The appellate court upheld a Commission majority in finding petitioner's accident while going to work compensable. Petitioner, a traveling service technician who was on-call 24 hours a day, 7 days a week, 365 days a year, was given a company vehicle and was prohibited from driving his vehicle for personal use. The night before his accident, he was dispatched on an emergency call to a local hospital, but upon further investigation, determined that it was not an emergency and that the repair could wait until morning.

The next day, he left his residence intent upon making the service call, then decided to stop by his office to see if any other calls had come in that he could service after completing this call. While traveling to his office, he reached down for a cup of coffee and rear-ended a garbage truck. The court upheld the Commission's finding of compensability, finding that the "employer was
obviously . . . gaining a benefit in having claimant stop at [the] employer's office before making [the] service call". The dissenting Commissioner pointed out that the petitioner faced the same risk as any one else who was commuting to work.

CASES TO WATCH - Back to Table of Contents - Back to WC Index

The following workers' compensation cases are currently pending before the Illinois Supreme Court and are in the process of briefing.

Eastman v. Messner, No. 86857, 1999 Ill. LEXIS 464 (March 31, 1999) - Whether an employer may assert its section 8(b) lien in a legal malpractice case filed by its employee against his tort claim attorney - Appellate answer: No.

Saunders v. Industrial Comm'n, No. 86969, 1999 Ill. LEXIS 559 (March 31, 1999) - Whether violating a safety rule not associated with the actual job performance removes the employee from the scope of employment - Appellate answer: Yes.

King v. Industrial Comm'n, No. 87099, 1999 Ill. LEXIS 736 (June 2, 1999) - Whether the requirement that a claimant submit to an employer-selected physician to determine the "extent and probable duration of the injury" and "amount of compensation which may be due to the employee from time to time", may be invoked over five years after a final award of permanent total disability benefits to deny.

We recommend the entire opinion be read and counsel consulted concerning the effect these decisions may have upon your claims.