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By: Kisa P. Sthankiya
n Card Dynamix, LLC v. Illinois Workers’ Compensation Commission, 2024 IL App (3d) 240319WC-U, the Workers’ Compensation Commission Division of the Illinois Appellate Court addressed a significant question concerning the scope and applicability of §12 of the Workers’ Compensation Act, 820 ILCS 305/1, et seq., in the context of post-award proceedings. Specifically, the court was asked to determine whether an employer retains the statutory right to compel an independent medical examination (IME) after an award granting the claimant ongoing prospective medical rights has been entered, particularly when the claimant seeks additional medical expenses that may not fall squarely within the original award.
The claimant, a 56-year-old quality sample inspector for a plastic manufacturing company, suffered a significant lower back injury in 2013 while pushing a heavily loaded cart. MRI imaging revealed a lumbar disc bulge, and subsequent treatment included a laminectomy and spinal fusion at L5-S1. The treating orthopedic surgeon, Dr. Mark Sokolowski, oversaw the claimaint’s care over several years, prescribing pain medications and recommending follow-up MRIs.
After conservative treatments proved ineffective, the claimant underwent surgery and continued to require ongoing care and prescriptions. In 2017, an arbitrator awarded her 35 percent permanent partial disability under §8(d)(2) of the Act, ordered the employer to cover prospective medical care under §8(a), and left medical rights “open.” 2024 IL App (3d) 240319WC-U at ¶3.
After the arbitration award, the claimant returned to Dr. Sokolowski for at least eight follow-up visits between December 2017 and February 2021, during which he continued prescribing pain medication, including hydrocodone. On August 10, 2018, due to the claimant’s persistent lumbar pain and radiculopathy, Dr. Sokolowski referred her to Dr. Kalina, a pain management specialist, for long-term pain management. The claimant began treatment with Dr. Kalina on August 20, 2018, and continued through at least June 2021. Dr. Kalina’s care included addressing conditions such as neck pain and the aftermath of a stroke — ailments not clearly addressed by the original award or directly linked to the claimant’s work injury. All related medical bills were submitted to Travelers Insurance Company.
Travelers initiated a utilization review to assess whether the pain management medications prescribed by Dr. Sokolowski after the arbitration were appropriate and consistent with evidence-based standards. However, Travelers failed to provide the reviewing doctors with complete information, including the arbitration award granting the claimant prospective medical care. As a result, some reviewers denied medications that Dr. Sokolowski had already prescribed and that the arbitrator had approved. Despite Dr. Sokolowski’s repeated requests for a peer-to-peer review, a right guaranteed under the Act, neither Travelers nor the reviewing physician responded. Additionally, Travelers failed to pay for a prescribed drug even after approval by its own reviewing physician. Drs. Sokolowski and Kalina also documented the claimant’s ongoing need for a new MRI of her lumbar fusion site, which Travelers did not authorize. The MRI was eventually performed over four years after it was first recommended, paid for by the claimant’s group insurance carrier in January 2021.
The employer’s insurer, Travelers, declined to pay for these treatments without first conducting an IME to determine causation and medical necessity. The claimant refused to submit to the IME, contending that §12 does not authorize an employer to demand an IME in a post-award enforcement proceeding.
The claimant filed a petition under §8(a) to compel payment of medical expenses and sought penalties and attorneys’ fees under §§19(k) and 16, respectively. The Commission partially granted the petition, ordering Travelers to pay for follow-ups and prescriptions by Dr. Sokolowski, as well as the MRI. The Commission focused on other language in the arbitrator’s decision, stating that the employer was liable for prospective medical treatment and expenses, “specifically, continuing follow-up visits with Dr. Sokolowski, a new lumbar MRI (but only if Dr. Sokolowski continues to order one) and continuing prescription medication, as required.” [Emphasis added by the court.] 2024 IL App (3d) 240319WC-U at ¶30. The Commission found that this statement limited the prospective medical care award to those particular treatments.
However, the Commission narrowly construed the scope of the original arbitrator’s award, concluding that it did not encompass Dr. Kalina’s treatments and found that Travelers had a right to conduct another IME under §12. Penalties and fees were awarded.
A partial dissent by Commissioner Doerries disagreed with the majority’s penalty calculation, arguing it should be based on the fee schedule, not the billed amounts.
The matter was appealed to the Will County Circuit Court, which reversed the Commission in part, finding that Travelers had no valid basis for denying treatment and expressing frustration over systemic barriers faced by claimants seeking enforcement of open medical rights. The court remanded for a recalculation of penalties and fees based on the full amount of unpaid medical bills.
On remand, the Commission complied with the circuit court’s order and issued a new decision. The employer’s subsequent appeal to the circuit court was rejected, and the Commission’s award was affirmed.
The appellate court rejected the claimant’s argument that the employer was not entitled to an IME post-arbitration award. Applying a de novo standard of review, it emphasized that the plain language of the §12 permits an employer to request an IME at “any time” to determine both “the nature, extent and probable duration of the injury” and “the amount of compensation which may be due the employee from time to time.” 2024 IL App (3d) 240319WC-U at ¶¶41 – 42. The court reasoned that the phrase “from time to time” reflects the legislature’s intent to extend the applicability of §12 beyond the initial adjudication of benefits, thereby encompassing ongoing disputes concerning medical treatment sought pursuant to an open medical award. 2024 IL App (3d) 240319WC-U at ¶42.
The court further noted that prospective medical expenses awarded under §8(a) may properly be viewed as a form of “compensation” within the meaning of §12 when they pertain to the treatment of disabling conditions causally connected to the work-related injury. Accordingly, the court concluded that Travelers was entitled to request an IME in this post-award context to evaluate whether the care provided by Dr. Kalina was necessary to cure or relieve the effects of the compensable injury and whether such care was within the scope of the prior award.
In reaching this conclusion, the court distinguished precedent that limited post-award IME rights to scenarios involving a potential change in disability status. It observed that while cases such as King v. Industrial Commission, 189 Ill.2d 167, 724 N.E.2d 896, 244 Ill.Dec. 8 (2000), addressed such circumstances, they nevertheless affirmed the broader proposition that the right to an IME does not terminate upon entry of a final award. The court thus rejected the claimant’s argument that §12 is inapplicable to proceedings aimed at enforcing prospective medical rights.
The claimant also contended that Travelers forfeited its right to an IME by failing to comply with §12’s procedural prerequisites, including reimbursing travel expenses and lost wages. The appellate court declined to reach the merits of this contention, finding that the claimant had forfeited the argument by failing to raise it before the Commission. In any event, the court deemed the argument unpersuasive, noting that even assuming Travelers had initially failed to meet its statutory obligations, such failure would not irrevocably bar it from obtaining an IME at a later time upon full compliance.
Turning to the issue of penalties under §19(k), the court held that Travelers’ refusal to pay for the disputed treatment rendered by Dr. Kalina was not unreasonable or vexatious. Given that some of the treatment involved conditions not clearly within the scope of the arbitration award or demonstrably related to the original injury, the insurer had a good-faith basis for withholding payment pending the IME.
However, the court agreed with the Commission that Travelers’ failure to pay for certain undisputed medical expenses — specifically, follow-up visits with Dr. Sokolowski, the treating orthopedic surgeon; a lumbar MRI; and continued prescriptions — was unreasonable and without justification. These services were plainly included within the scope of the arbitration award. As a result, the court affirmed the imposition of penalties and attorneys’ fees pursuant to §19(k) with respect to those expenses.
Finally, the court addressed the methodology for calculating penalties. While the Commission initially calculated penalties based on the full amount of the medical providers’ charges, the court held that the statutory fee schedule established under §8.2 governs the appropriate penalty base. The court found that Travelers preserved its right to have the penalties calculated using the fee schedule by introducing the relevant evidence into the record, and that it was not required to affirmatively request such calculation during the administrative proceedings.
The court reversed the circuit court and remanded the case to the Commission with instructions to assess penalties against Travelers based on the fee schedule outlined in §8.2 of the Act. Additionally, the Commission was directed to determine whether to award the claimant’s attorneys’ fees and costs against Travelers, as permitted by §16 of the Act. The court reinstated the Commission’s initial decision in all other respects, including its finding that Travelers was entitled to an IME and its penalty award limited to Travelers’ refusal to pay only for Dr. Sokolowski’s treatments, the prescribed medications, and the lumbar MRI.
By: Kisa P. Sthaniya
On January 24, 2025, the Illinois Supreme Court issued its long-awaited decision in Martin v. Goodrich Corp., 2025 IL 130509, upholding the constitutionality of a 2019 amendment to the Illinois Workers’ Occupational Diseases Act (OD Act), 820 ILCS 310/1, et seq. This case required the Illinois Supreme Court to construe §§1(f) and 1.1 of the OD Act in the context of a wrongful-death and survival action. The court was called on to answer three key questions:
Factual and Procedural Background
The claimant, Rodney Martin, worked for BF Goodrich from 1966 to 2012. During his employment, he was exposed to vinyl chloride monomer and related chemical products — compounds known to cause sarcoma of the liver. His exposure to vinyl chloride ended in 1974. Decades later, in 2019, he was diagnosed with angiosarcoma of the liver and died in July 2020. His widow, Candice Martin, filed a civil suit in November 2021 under the Wrongful Death Act, 740 ILCS 180/0.01, et seq., and the survival statute, 755 ILCS 5/27-6, alleging that her husband’s occupational exposure caused his illness and death.
She named Goodrich and its successor, PolyOne, as defendants, seeking to proceed outside the workers’ compensation system by invoking §1.1 of the OD Act, 820 ILCS 310/1.1. That provision, added in 2019, allows a plaintiff to pursue a civil action if compensation is barred under the OD Act by the statute of repose.
The defendants moved to dismiss. PolyOne asserted a lack of personal jurisdiction. Goodrich argued that §1.1 was inapplicable because §1(f) constituted a statute of repose and that, in any event, the new provision could not retroactively revive a time-barred claim without violating constitutional due-process rights.
Workers’ Occupational Diseases Act and the Exclusivity Doctrine
The court reiterated that the OD Act was enacted to provide no-fault compensation for occupational diseases that are disabling as a result of workplace exposures (820 ILCS 310/1(d)). Like the Workers’ Compensation Act, the OD Act was intended to replace common-law remedies with a more efficient, administrative process. The exclusivity provisions under §5(a) of the OD Act bar civil actions for work-related injuries in most circumstances.
However, this exclusivity is not absolute. The Martin court noted that employees can pursue civil claims when their condition (1) was not accidental, (2) did not arise from the employment, (3) was not received during the course of employment, or (4) as in Martin, supra, is not compensable under the OD Act. 2025 IL 130509 at ¶20. This exception was squarely addressed in Folta v. Ferro Engineering, 2015 IL 118070, 43 N.E.3d 108, 397 Ill.Dec. 781, in which the Supreme Court upheld the exclusivity bar despite the claim being time-barred under the OD Act, concluding that the absence of a remedy due to the statute of repose did not render the injury noncompensable.
Folta led to widespread criticism due to its harsh result: the employee was left without any remedy. In response, the legislature enacted §1.1 in 2019, which explicitly allows civil actions when claims are barred under the OD Act by a statute of repose.
Section 1(f) is a Statute of Repose
The first issue was whether §1(f), which bars compensation unless disablement occurs within a specified period after last exposure, constitutes a statute of repose. 820 ILCS 301/1(f). The court held that it does. Like §6(c) — previously identified in Folta as a statute of repose — §1(f) operates to extinguish claims after a defined period, regardless of when the injury manifests or whether it has yet accrued.
The Martin court emphasized that both §§1(f) and 6(c) are conditions precedent to recovery. Compliance with both is necessary for a valid claim under the OD Act. Failure to meet these time limitations results not just in a procedural bar but a substantive extinguishment of the right to compensation. Thus, the protections of the OD Act, including the exclusivity bar, are no longer available to employers when §1.1 applies.
Section 1.1 Applies Prospectively
The court next turned to the temporal reach of 820 ILCS 301/1.1. Because the statute does not expressly provide whether it is retroactive or prospective, the court applied §4 of the Statute on Statutes (5 ILCS 70/4), which states that substantive amendments apply prospectively unless otherwise provided.
Section 1.1 was deemed substantive, as it created a new right of action outside the administrative system for certain claimants barred from relief under the OD Act. As such, it may not be applied retroactively to revive previously extinguished claims. However, when an occupational disease was discovered after the statute’s enactment, the court concluded that civil remedy under §1.1 is available.
Section 1.1 Does Not Violate Due Process
The final issue was whether applying 820 ILCS 301/1.1 to exposures that occurred decades earlier would violate employers’ due-process rights under the Illinois Constitution. The court rejected this argument, reasoning that employers do not have a vested right in the exclusivity defense until the cause of action accrues. This occurs when all elements of the tort claim are present — namely, the diagnosis or discovery of injury.
In this case, the court noted that the injury (angiosarcoma) was discovered in 2019, and the civil complaint was filed in 2021 — after the enactment of §1.1. Therefore, no vested right was disturbed. The exclusivity defense had not accrued before the legislative change, and the employer’s reliance on repose or exclusivity defenses did not carry constitutional weight under these facts.
This decision reverses the harsh outcomes resulting from Folta, supra, and signals the court’s continued deference to legislative corrections in the complex field of occupational diseases law. Practitioners should carefully evaluate exposure timelines, diagnosis dates, and procedural posture when assessing case viability, particularly in toxic exposure claims arising outside the traditional temporal scope of the Workers’ Compensation Act or the OD Act.
In the case of Tazewell County v. Illinois Workers'
Compensation Commission, the Illinois Appellate Court addressed the issue
of whether repetitive trauma resulting in pain from a pre-existing condition is
compensable under the Illinois Workers' Compensation Act. The claimant, Dora
Potts, worked as a dental hygienist for Tazewell County, performing duties that
involved repetitive arm movements. In 2019, she began experiencing left
shoulder pain while performing her work duties. Medical examinations revealed
that she had a pre-existing rotator cuff tear, impingement syndrome, and
arthritis, which were not caused by her work but were aggravated by it. All
experts agreed that there was no structural change to the MRI or her condition.
The only change was an increase in pain while doing her work related
activities.
The court held that when a pre-existing asymptomatic condition becomes painful
due to work-related repetitive trauma, and not due to the natural progression
of the condition, the resulting pain is considered an aggravation of the
pre-existing condition and is compensable under the Illinois Workers'
Compensation Act. The court found that
the evidence in the record satisfied the claimant's burden of proving that her
repetitive trauma and resulting left shoulder pain arose out of and in the
course of her employment with Tazewell County.
The Appellate Court affirmed the decision of the Circuit Court, which had
confirmed the Illinois Workers' Compensation Commission's award of benefits to
the claimant. The court's rationale was that the symptomatic condition
resulting from work-related activities is an aggravation of the pre-existing
condition, even in the absence of an organic or structural change to the
underlying condition.
Kisa P. Sthankiya
In Town of Cicero v. Ill. Workers’ Comp. Comm’n, 2024 IL App (1st) 230609WC, the Illinois Appellate Court expanded the traveling employee doctrine to apply to employees who are injured leaving their worksite on their way to their employer-provided vehicle.
The court noted that determining whether an injury to a traveling employee arises out of and in the course of his employment is governed by different rules that other employees. The test for whether an injury to a traveling employee arises out of his employment is if he was injured while engaging in conduct that is “reasonable and foreseeable” by his employer.”
There was no dispute that the employee was a travelling employee while performing his inspection duties in the Town of Cicero. The question was whether he was a travelling employee at the time he was leaving the worksite after obtaining his work phone, downloading his assignments, and attempting to make his way down a flight of stairs to his employer-provided vehicle. The court concluded that after he obtained his assignments and phone, he was performing actions incidental to his employment and a travelling employee.
Kisa Sthankiya
ksthankiya@rusinlaw.com
312-454-5127
In Illinois, we are seeing a trend with the Illinois Workers’ Compensation Commission awarding benefits under multiple provisions of the statute for conditions arising from the same date of injury. These awards are increasing the overall value of cases and creating a growing body of caselaw to support multiple avenues of recovery from the same injury.
In American Coal Company v. Illinois Workers’ Compensation Commission et al. 2024 IL App (5th) 230815WC, the Illinois Appellate Court found that an employee could receive permanent total disability benefits under 8(e)(18) and was also entitled to benefits under 8(d)(2), 8(c) and 8(e) for injuries resulting from the same date of accident. The employer stipulated that the employee was entitled to permanent total disability benefits for the loss of use of both eyes. Permanent total disability benefits are one of the maximum recoveries under the Illinois Workers’ Compensation Act entitling an employee to a substantial weekly benefit for life. The employee argued that he should also receive additional benefits under for losses under Section 8(d)(2), 8(a) and 8(e). Under Section 8(d) they award benefits for spinous fractures, 100% loss of use each eye under Section 8(c) and 60% loss of use of MAW under Section 8(d)(2). The court held that the employee was entitled to recover additional benefits under Section 8(d)(2), 8(c) and 8(e) for injuries to claimant’s hip, spine, abdomen, and psychological issues in addition to permanent total disability. They relied on a prior case, Beelman Trucking v. Illinois Workers’ Compensation Comm’n, 233 Ill. 2d 364 (2009), where the supreme court held that the claimant could recover under two sections of the Act also. (8(e)(18) and 8(e)(10)) They found that an award for the additional benefits would address his further diminished earning capacity as a result of the injury and adequately address the full scope of his injuries.
Kisa Sthankiya
ksthankiya@rusinlaw.com
312-454-5127
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