A doctor, approved by the employer and insurance company, prescribed a specific course of treatment for an injured worker. The worker chose to listen to his own doctor instead. Does the worker forfeit workers’ comp benefits?
Zenon Lemanski fell 11 feet from a rooftop while working for Bob Red Remodeling in Illinois. Days after the fall, surgeons performed a left craniotomy on Lemanski. He was discharged from the hospital about two weeks later with traumatic brain injury, post-concussion syndrome, and shoulder and knee injuries.
The company asked another doctor to examine Lemanski. She diagnosed a moderate brain trauma and recommended a neuropsychological assessment to evaluate Lemanski’s cognitive impairment.
His own doctor referred Lemanski to a psychologist who said his neuropsychological instability prevented him from working.
The company doctor criticized the psychologist’s report. She believed that Lemanski could return to work on a restricted basis. His own doctor and the psychologist said he was permanently and totally disabled.
After more back-and-forth between the injured worker and the employer, the company moved to end workers’ comp benefits for Lemanski. The company argued his failure to obtain appropriate medical care in accordance with its doctor’s recommendations allowed it to end benefits.
At a hearing, Lemanski’s lawyer presented testimony from a certified rehabilitation counselor who reviewed Lemanski’s case. She said, even if the company doctor was correct and Lemanski could return to work someday, given his skills, age and language ability (he’s an immigrant who speaks Polish and very little English), he would only be able to work in an unskilled, sedentary position. Those jobs comprise less than 1% of the job available in the U.S.
The rehab counselor said Lemanski was totally disabled and wouldn’t be able to return to work.
An arbitrator denied the company’s request to end workers’ comp benefits and found Lemanski was permanently and totally disabled. The arbitrator noted the company’s objection that the injured worker wasn’t following its doctor’s course of medical treatment, but Lemanski had “undergone a long course of treatment by qualified physicians and therapists.”
The Illinois Workers’ Compensation Commission accepted the arbitrator’s findings. The company appealed, and recently an Illinois appellate court issued its opinion.
Good medical treatment good enough?
Illinois’ workers’ comp law says:
“If any employee shall persist in insanitary or injurious practices which tend to either imperil or retard his recovery or shall refuse to submit to such medical, surgical, or hospital treatment as is reasonably essential to promote his recovery, the [Workers’ Compensation] Commission may, in its discretion, reduce or suspend the compensation of any such injured employee.”
The Illinois Supreme Court has stated:
“If a claimant’s response to an offer of treatment is within the bounds of reason, his freedom of choice should be preserved even when an operation might mitigate the employer’s damages.”
So the appellate court said the question in Lemanski’s case boiled down to whether the treatment he chose was unreasonable. In its opinion, the appellate court wrote:
“The question is not which course of treatment was superior, it is whether claimant’s behavior was reasonable under the circumstances. As claimant was following the advice of his own qualified physician, we could not say that his choices were unreasonable.”
So the appellate court let the Commission’s ruling stand: Bob Red couldn’t end Lemanski’s workers’ comp benefits.
What do you think about the court’s decision? Let us know in the comments.
(Bob Red Remodeling Inc. v. Zenon Lemanski, Appellate Court of Illinois First District, No. 1-13-0974WC, 12/31/14)
