When can an employer deny benefits to an employee who has engaged in unhealthy behavior that has impacted his recovery?
Section 19(d) of the Illinois Workers’ Compensation Act provides that:
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 Commission may, in its discretion, reduce or suspend the compensation of any such injured employee. 820 ILCS 305/19(d).
Two specific questions that arise regularly are whether the suspension/reduction of benefits is proper when 1) an employee’s recovery is being impacted by smoking is proper and/or 2) an employee is unable to undergo prescribed medical treatment due to obesity.
In Global Products v. Workers’ Compensation Commission, 392 Ill.App.3d408, 911 N.E.2d 1042 (1st Dist. 2009), Petitioner injured his low back while working as a laborer. Following failure of conservative treatment, Petitioner underwent a lumbar surgery. Petitioner had continued complaints and ultimately underwent a second surgery, a lumbar fusion. Petitioner smoked cigarettes both before and following his injury. Both Petitioner’s treating physician and Respondent’s IME physician advised Petitioner to stop smoking, and the IME doctor opined that Petitioner’s smoking resulted in the failure of his first spinal fusion. A third surgery was recommended. Respondent refused to authorize due to Petitioner’s continued smoking. The Commission found that Petitioner’s smoking of cigarettes was not a reasonable basis upon which to deny the revision surgery recommended and awarded medical expenses, TTD, penalties and fees.
The Appellate Court affirmed finding Petitioner’s smoking was not an intervening behavior which broke the causal chain between Petitioner’s accident and his condition of ill-being. Furthermore, the Court noted that there was no evidence in the record to support a finding that Petitioner smoked cigarettes with the purpose of retarding his recovery. The Court added that it appeared that Petitioner smoked in spite of its potential impact on his recovery and not because of it. Additionally, the Court found the Commission’s decision to award penalties and fees was an abuse of discretion, and Respondent’s reliance on its expert’s opinion was reasonable.
In Hatten v. Illinois Workers’ Compensation Commission (14 IWCC 0692), Petitioner sustained an injury to her low back. She treated with an orthopedic surgeon who recommended lumbar surgery to address her disc pathology following the failure of conservative measures, but declined to perform same because of her obesity. He referred her to an internist to complete a weight management program. Over the course of a number of months, the medical records reflected that both doctors found her to be noncompliant with the recommended weight loss treatment. Unable to complete the surgery, Petitioner was placed at MMI following an FCE. Petitioner sought an odd lot permanent total disability award. The arbitrator found Petitioner noncompliant with treatment and her actions constituted an injurious practice under Section 19(d). The arbitrator awarded 25% under Section 8(d)2 of the Act. The Commission reduced the permanence award to 15% loss of use. In an unpublished Decision, the Appellate court affirmed citing Keystone Steel & Wire Company v. Industrial Commission, noting “the arbitrator, and thus the Commission, quoted Section 19(d) of the Act (820 ILCS 305/19(d) determining that the claimant’s failure to lose weight to allow for her spinal surgery constituted an ‘injurious practice.’ Section 19(d), by its plain terms, vests the Commission with discretion to reduce an award in whole or in part where the claimant persists in an injurious practice tending to either imperil or retard her recovery.” Keystone Steel & Wire Company v. Industrial Commission, 72 Ill. 2d474, 381 N.E.2d 672 (1978).
While these are fact specific assessments within the discretion of the Commission, an ongoing persistence in a pattern of behavior that has been shown in the medical record to be against the advice of multiple providers can support an arbitration finding of injurious practices under Section 19(d). Furthermore, when evidence in the record shows intentional acts of sabotage to impair recovery from the work injury, an injurious practice is more likely to be found by the IWCC.
If you have questions or would like to discuss this issue further, please feel free to contact me directly.