Employer Must Pay Penalties For Delay In Paying Settlement

Case name: McKenzie v. Read Excavating, 12 ILWCLB 10 (Ill.Ind.Comm.2004).

Ruling: The Commission held that a claimant, who was diagnosed with work-related quadriparesis, was entitled to permanent total disability benefits under WCA Section 8(f), a handicap-accessible van, and additional compensation and attorney’s fees under Sections 19(k) and 16 based on the employer’s failure to provide the claimant with the van. The amount of penalties and attorneys fees will not be assessed by the Commission until after the employer purchases the van.

What it means: An employer’s refusal to purchase a prescribed handicap-accessible motor vehicle for a quadriplegic without reasonable basis constitutes grounds for penalties and attorney’s fees under WCA Sections 19(k) and 16.

Summary: The claimant, a heavy equipment operator, was dismounting from a scraper when he fell to the ground and landed on his back. He suffered a spinal cord injury and underwent several surgeries. His treating neurosurgeon diagnosed the claimant’s condition as quadriparesis and prescribed a handicap-accessible conversion van with wheelchair lift and hand operations. The results of a driver evaluation and reactions test showed the claimant was a candidate for driving. The claimant secured an estimate of the cost of a 2002 Ford conversion van with the appropriate adaptive equipment at $49,350. Based on the opinions of the claimant’s doctors and therapists, the Commission found the claimant permanently totally disabled under Section 8(f) and entitled to a handicap-accessible van. Furthermore, the Commission found that the employer’s conduct in not providing the claimant with handicap accessible van was unreasonable and vexatious.

The Commission explained that the evidence overwhelmingly showed the need for a handicap-accessible van. It was “particularly unreasonable” for the employer to presume that the claimant’s family could continue to bear the burden of transporting the claimant. However, the Commission held in abeyance the penalty and attorney’s fee awards, reasoning that the amounts under Sections 19(k) and 16 depend on the cost of the van and shall be assess by the Commission after the employer purchases a van.

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