Compass Group v. Illinois Workers' Compensation Commission 
By: Katie S. Lonze - Associate - Nyhan, Bambrick, Kinzie & Lowry

 

The claimant was employed as a food service manager for the Respondent. While picking up a case of bottled soda, he immediately felt pain, and heard a pop in his back and a hissing sound on March 19, 2009.  He continued to work the rest of his shift, and saw a doctor the next morning who diagnosed a sprain, prescribed Vicodin, and referred the claimant to a chiropractor.  After the doctor’s visit, the claimant continued to work despite his pain. He worked for the next two days. On the third day after the injury, he fell down the stairs when his left foot gave away due to severe pain in his back radiating down his leg as he was getting ready to go to work. As the result of this fall, he sustained lacerations and bruises on his elbows, arms, and chest. The claimant declined medical attention and went to work.  However, midway through the day, he was taken to the hospital. He underwent X-rays in the hospital which revealed olecranon bursitis in both elbows.

While in the hospital, the claimant’s condition deteriorated and he was diagnosed with a blood infection. He was transferred to the intensive care unit where his health continued to deteriorate.  He was eventually transferred to a long-term care facility and a CT scan revealed various back problems.  The claimant was eventually diagnosed with a disc space infection, and underwent multiple surgeries; including two spinal surgeries, a left elbow surgery and an ileostomy reversal.  The claimant’s and respondent’s doctors disagreed as to what caused his blood infection.

The respondent raised multiple issues on appeal, and the petitioner cross-appealed on two issues.

The first issue raised on appeal by respondent involved causation with regard to the blood infection. The respondent requested that the Court adopt the findings of its expert, Dr. Kale, because he was the most qualified and persuasive.  Dr. Kale was board certified in internal medicine, while the claimant’s doctor, Dr. Sherman, was an orthopedic surgeon with no expertise in internal medicine.  The Court weighed the doctors’ respective specialties against the fact that Dr. Sherman was the claimant’s treating physician and Dr. Kale was the respondent’s hired expert.  In light of these facts, the Court stated that the Commission’s decision to adopt the opinion of Dr. Sherman was not against the manifest weight of the evidence and the Commission’s decision with regard to causation was upheld.

The second issue raised by respondent on appeal involved penalties, fees and credits. Respondent argued that no penalties and fees should be imposed and that it should be entitled to a credit for medical expenses paid by the claimant’s group health insurance.  However, because the Commission’s decision granted the respondent credit and no penalties or fees were imposed, the Court ruled that these issues were moot.

The third issue raised by respondent on appeal involved the award of medical expenses based on the Fee Schedule rather than on a negotiated rate.  The parties had entered into a stipulation that stated:

“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 to be compensable.  However, by so stipulating, the employer does not waive any objection it may have as to liability (or the reasonableness and necessity) of said expenses.”

This stipulation also detailed the exact amount to be awarded regarding various bills.  As respondent had expressly agreed that the amounts to be awarded were proper, the Court upheld the Commission’s finding that respondent was not permitted to contest those amounts on appeal.

The next issue raised by respondent on appeal involved the Commission’s denial of its motion seeking leave to conduct an evidence deposition of Dr. Kale. Dr. Kale was slated to testify during the arbitration hearing.  However, claimant’s counsel was not available on that day and Dr. Kale could not make himself available on any other day.  The respondent then moved to depose Dr. Kale.  The arbitrator concluded that it was sufficient for respondent to submit the reports into evidence in lieu of a deposition and the Commission agreed.  The Court noted that this decision was a matter of discretion left up to the arbitrator.  In further addressing this issue, the Court stated that the respondent never indicated what additional information would have been provided in the deposition, never identified any opinions in need of clarification or how those opinions would have been clarified, and failed to explain why the doctor’s curriculum vitae was insufficient to establish his credentials.  Given the evidence, the Court held that the denial of Dr. Kale’s deposition was not prejudicial to respondent and the Commission’s decision was affirmed.

The claimant raised two issues in his cross-appeal.  First, the claimant asserted that he was entitled to penalties and fees.  Second, the claimant asserted that he was entitled to an award of certain costs he incurred in making modifications to his home to accommodate his condition.

With regard to the first issue raised by the claimant, the Court affirmed the denial of penalties and fees noting that the respondent’s conduct was not unreasonable simply because the respondent waited to obtain a medical report for approximately one year.  The Court considered whether the time period was reasonable in light of the facts of the case. 

Regarding the second issue raised by the claimant in his cross-appeal, the Court addressed whether the arbitrator should have denied the costs associated with home modifications because a physical therapist, rather than a physician, recommended the modifications.   The Court analyzed tort law, specifically Compton v. Ubilluz, 353 Ill. App. 3d 863 (2004), in which the trial court permitted the executive director of an organization to testify as an expert witness regarding costs of future medical care including home modifications. The director in the Compton case provided assistance to people with disabilities and made recommendations for life care plans as part of his job.  After analyzing case law, the Court held that there is no absolute requirement that an award of the type sought here be supported by the testimony of a physician as long as competent evidence establishes the reasonableness and necessity of the award.  The Court then remanded the case to the Commission to evaluate the opinions of the physical therapist.

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