This is the second major ruling we have seen where it appears our reviewing courts are suddenly reviewing, relying upon and citing dictionaries as their leading source for legislative analysis and interpretation. Attorneys on both sides may now starting grabbing for their lexicons when writing appellate briefs and preparing for orals.
Last month, we saw a blockbuster change to the Illinois workers’ compensation matrix in Will County Forest Preserve District v. IWCC where the Appellate Court looked to Stedman’s Medical Dictionary and Webster’s Third New International Dictionary to rule the word “arm” is defined as “the segment of the upper limb between the shoulder and the elbow; commonly used to mean the whole superior limb.” In reliance on one or both dictionaries and the use by those dictionaries of the word “between” quoted in the previous sentence, for the first time in Illinois WC history, the members of our reviewing court found the “shoulder” is no longer part of the “arm.” As we advised our readers that means the legislation will no longer provide statutory credit to Illinois employers for prior PPD awards to the “arm” in claims involving shoulder injuries.
This month in their ruling in Hollywood Casino-Aurora v. IWCC, the Illinois Appellate Court, Workers’ Compensation Division again looked primarily to dictionaries when considering a Commission decision evaluating the handling of a claim by a WC claims adjuster who did not rapidly approve requested medical care by a claimant.
In this claim, there was an earlier ruling by the IWCC that awarded TTD and PPD benefits as well as ordering the employer or its carrier to pay for reasonable and necessary medical expenses, including the cost of the spinal cord stimulator. After this final decision Petitioner continued under the care of the same doctor who scheduled a battery replacement surgery for Petitioner’s spinal cord stimulator. The claims handler requested a report from this surgeon explaining the medical necessity for the procedure. On June 18, 2007, the physician sent the claims handler a report setting forth the medical necessity for the procedure and requested authorization for the surgery which had been rescheduled for July 9, 2007. For reasons not clearly outlined in the record, no immediate response was received. It appears the battery in the spinal cord stimulator may have run out in the interim. On August 15, 2007 the claims handler authorized the battery replacement surgery and surgery took place August 27, 2007.
On August 2, 2007, Petitioner’s counsel filed a penalty petition under section 19(k) of the Act asking fees and penalties be assessed against the employer and/or its carrier for its failure to immediately authorize the battery replacement procedure. During hearing, the claim handler admitted she was in possession of what was needed to authorize the battery replacement procedure.
The Illinois Workers’ Compensation Commission issued a unanimous decision finding the employer or its carrier/TPA unreasonably delayed authorization for the recommended surgery without cause. They awarded a hefty $40,750.in penalties or half of the cost of the projected surgery under section 19(k). They denied the claim for attorney’s fees and didn’t answer the request for penalties under Section 19(l) of our WC Act. The employer and/or insurance carrier/TPA appealed the IWCC ruling to the Circuit Court who reversed the IWCC decision awarding 19(k) penalties.
The basic issue before the IWCC and reviewing courts is whether Illinois WC adjusters are subject to “bad faith” type awards when they don’t quickly move to authorize requested medical care. Please note when McMahan v. Industrial Commission was issued by our Illinois Supreme Court in year 2000 and for the first time allowed penalties and fees on unpaid medical bills, the very aggressive Illinois claimant bar went to the next logical step which was demanding immediate and on-demand authorization for medical care under the hammer of similar bad-faith-type penalties and fees. Many legal scholars still respectfully question the McMahan ruling, as the legislation clearly indicates medical bills aren’t the payment of benefits and therefore shouldn’t be the subject of penalty petitions. We feel the McMahan penalties-on-unpaid-medical-bills concept is so engrained in Illinois WC law, no one even knew to raise the old disputes about adhering to the actual legislation—we note the academic debate was not even mentioned in this new appellate ruling.
Either way, in summary, a 3-2 divided Appellate Court majority again looked to the Webster’s Third New International Dictionary to note “[p]ayment is defined as: ‘[t]he act of paying or giving compensation.’” The majority ruling goes on to note “[t]he definition does not include the giving of authorization for a service.” We feel that is precisely how the legislation is drafted and therefore clearly follows the legislative scheme.
The dual dissents went back and forth, chastising the majority and claiming they took a “narrow view” of the IL WC Act. We respond to applaud the majority ruling, as they closely adhered to what we call the “English language” version of the IL WC Act. We hope this heralds a new appellate era of closely following the dictionary whenever statutory analysis is required. Over the years, we assert numerous appellate rulings at every level might be different if that were to occur.
We caution all Illinois WC adjusters to note we have again dodged a major bullet in this razor-thin victory. If the august appellate majority had gone the other way, IL WC claims handling may have been dramatically changed. We know the claims adjuster who handled this claim—we assure you she is a decent and usually diligent claims handler. That said, we want to be sure everyone on the risk/claims side of this business knows an important message to take away from this ruling is to understand you don’t want to keep doing what one of our partners jokingly calls “poking the bear.” By that we mean, if necessary, related and undisputed medical care is not being timely approved by Illinois claims handlers and there is no discernible basis for delay, at some point either our legislature or the IL WC Commission or both are going to take action to penalize our side of the matrix and stop that from happening. Let’s wise up folks and not cause that to occur.
We appreciate your thoughts and comments. Michael J. Danielewicz, J.D. who is also an Adjunct Professor of Law at The John Marshall Law School researched and wrote this article and would be happy to answer questions or send you the website of the Appellate Court ruling. Mike can be reached via email at firstname.lastname@example.org.