Defendant’s Reliance On Opinion Of Its Examining Doctor Was Not Objectively Reasonable

In awarding penalties and attorney fees pursuant to Sections 19(k), 19(l) and 16, the Illinois Industrial Commission found defendant’s reliance on the opinion of the examining doctor was not objectively reasonable.

Claimant worked for defendant as a patient service technician. His job entailed driving a truck to locations to order to fix or replace medical instruments. He injured his neck in a work-related accident. He was diagnosed with a large central disc herniation and spinal cord impingement. He returned to work for six weeks as a dispatcher, but he continued to experience pain and discomfort in his neck. He underwent a course of physical therapy and epidural injections.

In June 1999, claimant’s treating doctor recommended surgery. Defendant’s examining doctor recommended course of treatment. In November 2000, the treating doctor recommended a work hardening program following a cervical fusion. Defendant chose a second examining doctor, who opined work hardening was not necessary. Based upon the second doctor’s examination, a job offer allegedly based upon that examination, defendant terminated claimant’s temporary total disability benefits in January 2001.

The arbitrator awarded claimant 109-6/7 weeks of temporary total disability benefits. In addition, the arbitrator awarded penalties and attorney fees under Sections 19(l), 19(k) and 16. The arbitrator found the report of defendant’s second examining doctor to be wholly lacking in merit. The doctor provided no basis for choosing to restrict claimant’s lifting of weights to the range of 35 to 50 pounds other than the fact the doctor found claimant to be quite muscular. Also, there was no basis for the doctor’s determination that claimant had no restrictions on his ability to drive, as there was no evidence within the doctor’s report that he tested claimant’s cervical range of motion. As for the job offer, the arbitrator noted that other than requiring lifting of 50 pounds, there was no other description of the job provided to claimant. The job offer was made in contravention to the treating doctor’s clear recommendation that work hardening and a functional capacity evaluation be provided to claimant. The arbitrator pointed out that at the time the treating doctor made these recommendations, claimant had not worked in any significant capacity for 18 months and had undergone reconstruction of his cervical spine. Therefore, the arbitrator found it wholly reasonable for the treating doctor to prescribe a conditioning program and an objective measure of claimant’s physical abilities prior to returning him to work. Based upon the quality of the examination by defendant’s second doctor, and defendant’s use of that examination to develop a job offer with no medical basis, the arbitrator found defendant acted unreasonable and without good cause in delaying payment of claimant’s TTD benefits.

In affirming, the Commission found defendant’s reliance on the opinion of defendant’s second doctor was not objectively reasonable. The Commission noted defendant generally engaged in an unreasonable and vexatious pattern of conduct periodically throughout the course of the claim. Also, the Commission relied on Edgecomb v. Industrial Commission, in which the Appellate Court of Illinois reversed the Commission because the evidence obtained from three doctors clearly outweighed another doctor’s cursory examination. The Commission concluded that although claimant’s benefits were eventually paid, they were unreasonably delayed and thus subject to penalties for late payment.

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