6-18-12; Do Illinois Employers Owe Mileage to Medical Care or Light Work Under Our Law?

We keep getting asked over and over and here are some thoughts on this legal subject. It is our reasoned legal opinion Illinois employers do not owe mileage expense incurred by injured workers for non-emergency medical care or to attend work where restrictions are recommended. The reasons for this legal position are simple—those benefits aren’t included in the IL WC Act or Rules.

In stark contrast, when an Illinois injured worker is asked to attend an independent medical examination or IME, they are to receive mileage, meals and time lost from work. Section 12 of the IL WC Act requires it. In our view, this means the Illinois legislature considered the situation and clearly addressed it. To the extent the Illinois legislature could have addressed mileage expense either before or after attending a routine medical appointment, surgery or post-surgical physical therapy and didn’t, we have to assume the mileage concept was or should have been considered and wasn’t.

We have also told law students the Illinois Workers’ Compensation Commission is sort of like a Coca-Cola® machine. You put in money and you get only Coca-Cola® products—you can’t get a hot dog or a coffee from a Coca-Cola® dispensing machine. Similarly, the IWCC can only “dispense” what the law allows them to dispense or give to injured workers. The law does not provide for mileage expense to non-emergency medical care or physical therapy. The Act and Rules do not provide for mileage expense to attend light work. Therefore, if the Commission and/or reviewing courts order it, in our view, they are acting outside the U.S. and Illinois Constitutions—they are telling Illinois employers to pay for something our legislature doesn’t require them to pay.

The ace claimant lawyers who will read this article may quickly point to the 1991 ruling by our IL Appellate Court in General Tire and Rubber vs. Industrial Commission decision to assert that ruling says Illinois employers/TPA’s/insurance carriers have to pay mileage to medical care in this state. With respect to the members of the Illinois Appellate Court who issued that ruling, we assert the ruling is illogical at best and baffling at worst. If you carefully read their ruling, what the Court found was the determination by the then-named Industrial Commission to award a claimant mileage to treating medical care was “within the manifest weight of the evidence.” Some lawyers also tell adjusters they have to pay this benefit if it is “reasonable.” In our view, “reasonable” is in the eye of the beholder.

Based on that theory, the Illinois Workers’ Compensation Commission could award every claimant a Ferrari® or a trip to Paris. The right hearing officer could find a nice car or a short trip to be “reasonable.” If the IWCC awarded it, the Appellate Court could find such a determination to be “within the evidence.” Again, that makes little to no sense to us. We didn’t handle the General Tire and Rubber defense in the claim above. We don’t agree with how they were defended. We assure everyone if the issue came up again, we would immediately raise constitutional challenges to such an award.

Illinois business is required to pay whatever the legislature says is owed under our law. The “source of law” that creates those requirements are the IL WC Act and Rules. They don’t require Illinois business to make such payments when the payments aren’t defined or owed under the law. We assure our readers the U.S. and Illinois Constitutions protect the rights of Illinois business for its property—it cannot be taken without due process and equal protection. So unless and until the law is changed by our legislature, we advise our clients not to pay or reimburse mileage expense to non-emergent medical providers or to attend medically restricted work.

We have had clients ask us if they can take care of an injured worker and offer to get them to or from medical care. We have also been asked if employers can reimburse mileage expense for an injured worker to minimize controversy and/or the potential for litigation. The answer to that question is easy—you can pay an injured worker anything you want. You can bring them cookies, cakes and ice cream while they are recovering from an injury. It isn’t against the law to be nice and nicer. That said, remember you aren’t required by law to be nice and go the extra mile. If you do so, that is your call to best manage your work force. As lawyers, our goal is to tell you what you have to pay an injured worker under the law.

The other side of this issue is the cost of an ambulance for a suddenly injured worker or someone in distress due to a work-related injury. Emergency medical travel, like being moved by helicopter or ambulance from a local hospital to a specialty hospital or clinic for perhaps a burn or gunshot unit is part and parcel of medical care. We feel such travel is covered under Section 8(a) of the Act. If you aren’t sure of the difference between emergency care and normal care for everyday office visits, send a reply and we will give you our best thoughts and research, as we always do.

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