September 2026; Please join John Campbell of KCBA and Brian DeBias of ExamWorks for a webinar on HB 5228; Odd IL WC Appellate Ruling About Counting to 2 and more
/Synopsis: Please join John Campbell with Keefe, Campbell, Biery & Associates and Brian DeBias with ExamWorks on Wednesday, September 16th for an online educational webinar on Illinois House 5228.
Editor’s comment: They will review Key Changes & Practical Impact. What every WC Claims Manager and Risk Manager Needs to Know about this unprecedented change to IL WC law and practice.
Space is filling fast--Click here to REGISTER
Update On Illinois House Bill 5228
Synopsis: Odd Ruling from IL Appellate Workers’ Comp Panel about Section 8(a-3). We feel Illinois WC has to be one of the few States where our hearing offices are challenged to count to 2…!
Editor’s comment: In Heartland Coca-Cola Bottling Co. v. IWCC, the Appellate Panel issued a Rule 23 order, so it is nonprecedential except in the limited circumstances. If you have questions about that issue, send a reply.
Claimant Brian McClanahan was a delivery driver for Heartland Coca-Cola. On June 15, 2022, while pulling back a heavy two-wheeler/dolly, he claimed he felt sharp pain in his biceps together with numbness and tingling extending through his arm and fingers. The eventual dispute involved his cervical condition, medical bills, prospective cervical treatment and whether he had exceeded the two-choice-of-physicians limitation under §8(a-3) of the Illinois Workers’ Compensation Act.
McClanahan’s treatment course involved a number of doctors, which gave Heartland an argument--viewed simply by counting physicians, it appeared Claimant had gone beyond the statutory limit of two docs.
But, as we sometimes do in this nutty State, the IWCC and later the IL WC Appellate Court rejected that extraordinarily simple approach—only in IL WC do we have issues about counting to two!!! The Court felt the question under §8(a-3) was who actually selected the physician and whether subsequent treatment arose from a referral within an existing chain of treatment.
The IL WC Commission found that:
Dr. Young was Claimant’s first choice of doctor. Dr. Young’s referral to Dr. Davis, who was in the same practice, remained part of that first choice.
Dr. Rotman treated Claimant but magically did not count as McClanahan’s second choice because Heartland had previously selected Rotman for an IME. I cannot disagree more strongly with this concept—the fact the IL employer “chose” an IME doc didn’t mean later treatment by that doctor and possibly everyone in his medical office was a “choice” by the employer and not the Claimant.
Per the IWCC panel, Claimant’s second actual “choice” was a Dr. Bradley and the decision by Claimant to seek medical care by the IME doc was part of what I feel is IL WC voodoo reasoning.
Dr. Bradley then referred Claimant to Dr. Gornet. To my understanding, Dr. Gornet is a proponent of cervical disc replacement surgery, which may cost between $15,000-$175,000.
I would doubt a delivery driver would undergo such surgery and not have lots of restrictions, requiring retraining and possibly major wage loss exposure for the employer or insurance carrier.
Per the IWCC and the Appellate panel three choices can with Illinois WC wizardry become two so Dr. Gornet fell within the referral chain generated by McClanahan’s second now permissible choice rather than constituting a third choice.
The result was that McClanahan had not exhausted or exceeded his two choices, despite having actually seen more than two doctors.
Why this matters for IL WC Defense Handling
The ruling is favorable to claimants. From this ruling, it appears the IWCC and courts may allow three, four, or more physicians by their unique reasoning. Employer-selected doctors don’t count when Claimant later “chooses” them, and referrals flowing from a permissible choice generally remain within that choice’s treatment chain.
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