Synopsis: Big Mac Gets Whacked for IL WC Penalties/Fees. Your Editor is not sure why this set of facts needed an appeal to the IL Appellate Court and a reported ruling.
Editor’s comment: The Illinois Appellate Court, WC Division upheld an award of full benefits, including Claimant’s attorney fees and other penalties for a long-time McDonald’s employee for an unreasonable contest to her IL WC claim. We are fairly sure this was a franchise store and not a company-owned location.
In my view and as a veteran defense attorney, this is a classic example of frustrating IL WC overtreatment by physician after physician. Again, and in my view, UR (or utilization review) should have been implemented early and often to block what I feel was obvious unnecessary care—if you aren’t sure how and why KCB&A recommends UR in such settings, send a reply.
In McDonald’s v. IWCC, No. 1-21-0928WC, issued 06/24/2022, Claimant worked for McDonald’s for approximately 21 years. On Oct. 3, 2012, Claimant went to a refrigerator to get a box of meat. She claimed she grabbed a box from the top shelf, which was above the height of her eyes and forehead. She asserted she placed the box on her left shoulder, and it began to fall. She claimed she twisted her lower back and tried to stop the box from falling, using her right hand, and she felt pain in her right shoulder.
Claimant told two supervisors what had occurred. She continued working until she was advised to stop. She then went to Trinity Hospital. That same day, one of Claimant’s supervisors completed a report of incident and faxed it to McDonald’s main office. The report states Claimant suffered a back injury handling a box of meat. I feel there is an incident report issue with calling this event an “injury”—if you aren’t sure why, send a reply.
Trinity Hospital’s records indicate Claimant complained of low back pain lifting heavy boxes of meat and she was diagnosed with a back strain. Claimant returned to work on two days after this occurrence on Oct. 5, 2012.
On Oct. 8, 2012, the insurance carrier for McDonald’s sent a letter to Claimant advising it received notice of her “work-related injury.” On Oct. 16, 2012, Claimant saw a Dr. Louis who is on the web as a “pain management specialist” with complaints of ongoing low back and right shoulder pain since the incident with the box of meat. Dr. Louis diagnosed her with a lumbar strain and right shoulder pain. He also excused her from work.
Claimant filed a workers’ compensation claim on Oct. 23, 2012, and notice was provided to McDonald’s the next day.
On Nov. 8, 2012, Claimant saw a different doctor, again complaining of lower back and right shoulder pain. This physician suggested Claimant undergo an MRI, which she did. On Nov. 26, 2012, Claimant saw Dr. Jain, who examined her and reviewed the results of the MRI exams. Dr. Jain recommended epidural injections and a referral for an orthopedic evaluation. He opined her shoulder and back symptoms were “directly related to the injury,” and the treatment provided to date was reasonable and “of necessary frequency and duration.”
Claimant returned to work, with restrictions in December 2012.
In January 2013, she saw Dr. Gregory Markarian, an orthopedic surgeon. Dr. Markarian recommended continuing physical therapy and discontinuing work.
In April 2013, Dr. Jain administered injections to Claimant’s back. She reported an improvement in her pain afterward. On June 20, 2013, Dr. Markarian administered an injection to Claimant’s shoulder. She reported relief.
Nine months after onset, on June 28, 2013, another doctor got involved—a Dr. Vargas recommended Claimant undergo “facet joint injections” that I personally consider hogwash. This new doctor also recommended an FCE—I don’t consider FCE’s to be scientific or “medical treatment.” I want to confirm for all defense readers there is no value in paying for an FCE in an Illinois WC claim.
Claimant was finally discharged from physical therapy in August 2013 (UR should have blocked all that expensive PT), and she underwent an FCE in September. The FCE evaluator summarily and eternally placed Claimant’s capabilities at a sedentary to light level.
In November 2013, thirteen months after onset, Dr. Vargas administered more “facet joint injections” to Claimant’s back. Again, I feel UR should have been used for approval or non-certification.
On Nov. 27, 2013, again thirteen months after onset and without much recorded care in the interim, Dr. Markarian recommended shoulder surgery.
About six months later, In March-April 2014, Dr. Vargas administered even more nerve-block injections to Claimant’s back. He also recommended radiofrequency ablation that I feel has literally no value of any kind.
Claimant did not have the shoulder surgery or ablation. She continued working for McDonald’s in a light-duty capacity cleaning tables.
Dr. Mather conducted a review of Claimant’s medical records. He concluded she suffered a lumbar strain from the initial injury. Dr. Mather opined injections were not necessary and the FCE was valid. He further opined that Claimant needed no treatment beyond two weeks after her injury and she should have no work restrictions.
Dr. Craig Phillips also examined Claimant and concluded her shoulder and arm issues were caused by the work accident. He also thought she should be restricted to lifting no more than 10 pounds and refrain from any overhead activities.
In January 2019, the IL WC Arbitrator found Claimant suffered a work-related accident, that she gave timely and appropriate notice to McDonald’s and that her current condition was causally related to the accident. The arbitrator found Claimant was entitled to her past medical expenses and that the nature and extent of her injuries amounted to 17.5% loss of her person as a whole.
The arbitrator also awarded Claimant attorney fees and penalties, finding McDonald’s had acted vexatiously in disputing the issue of notice and the occurrence of an accident.
The Illinois Workers’ Compensation Commission panel affirmed the decision after correcting the arbitrator’s average weekly wage calculation and deducting travel expenses from some physical therapy services.
A Circuit Court judge affirmed the Commission’s decision. McDonald’s appealed their ruling to the IL Appellate Court, WC Division.
The Illinois Appellate Court ruled the Commission’s finding Claimant suffered an accident at work is not against the manifest weight of the evidence. The court noted she testified how the accident occurred in some detail and McDonald’s offered no material evidence to rebut her testimony or counter her claim. The owner of the McDonald’s franchise acknowledged Claimant suffered an accident at work. The court found there was timely and proper notice of the accident was given on the day of its occurrence, as McDonald’s conceded on appeal.
The court also said the expert hired by McDonald’s opined that Claimant’s shoulder and arm injuries were caused by her work accident and that her description of the mechanism of injury certainly could result in injury to the back and shoulder.
The IL Appellate Court, WC Division ruled an IL employer must have a reasonable basis to take a position. A position is not legitimate or reasonable simply because the Workers’ Compensation Act permits it.
If you are handling an IL WC claim and facing petition for penalties/fees and want a second opinion from a veteran defense attorney on your overall chances, send a reply.
To read the court’s decision, click here.
Editor’s comment: For reasons I respectfully disagree with, IL WC claims pay mileage for travel to and from Independent Medical Exams under Section 12 based upon standard IRS mileage rates.
The IRS announced a rare midyear increase in the standard mileage rate for the final six months of 2022, to 62.5 cents per mile, due to soaring gas prices.
Please use this new rate if you are setting an IME in an IL WC claim—please also note it is not worth the time or money to fight over this amount.