Bob Red Remodeling, Inc. v. The Illinois Workers' Compensation Commission , 2014 IL App (1st) 130974WC ( 2015 )

Illinois Official Reports
Appellate Court
Bob Red Remodeling, Inc. v. Illinois Workers’ Compensation Comm’n,
2014 IL App (1st) 130974WC
Appellate Court BOB RED REMODELING, INC., Appellant, v. ILLINOIS
Caption WORKERS’ COMPENSATION COMMISSION et al. (Zenon
Lemanski, Appellee).
District & No. First District, Workers’ Compensation Commission Division
Docket No. 1-13-0974WC
Filed December 31, 2014
Decision Under Appeal from the Circuit Court of Cook County, Nos. 12-L-50727,
Review 12-L-50742; the Hon. Patrick J. Sherlock, Judge, presiding.
Judgment Affirmed.
Counsel on L. Elizabeth Coppoletti and Susan A. Garver, both of Nyhan,
Appeal Bambrick, Kinzie & Lowry, P.C., of Chicago, for appellant.
Matthew J. Belcher and Brian J. Wiehe, both of Belcher Law Office,
of Chicago, for appellees.
Panel JUSTICE HUDSON delivered the judgment of the court, with
opinion.
Presiding Justice Holdridge and Justices Hoffman, Harris, and Stewart
concurred in the judgment and opinion.
OPINION
¶1 I. INTRODUCTION
¶2 Respondent, Bob Red Remodeling, Inc., appeals an order of the circuit court of Cook
County confirming the decision of the Illinois Workers’ Compensation Commission
(Commission). For the reasons that follow, we affirm.
¶3 II. BACKGROUND
¶4 It is undisputed that claimant, Zenon Lemanski, suffered a work-related accident on July
27, 2007, when he fell 11 feet from a rooftop while performing duties for respondent. He was
transported by ambulance to Advocate Illinois Masonic Hospital where a CT scan revealed
small temporal lobe contusions and a seven millimeter acute hemorrhage. On August 3, 2007,
claimant underwent a left craniotomy, performed by Dr. Leonard Kranzler. While in the
hospital, claimant engaged in speech, physical, and occupational therapy. He was discharged
on August 15, 2007, with the following diagnoses: frozen left shoulder; right knee pain;
postconcussion syndrome; and traumatic brain injury. Claimant speaks Polish but not English.
¶5 Following his discharge, claimant followed up with Kranzler. He also sought care from Dr.
Gourineni, an orthopedic specialist. Gourineni recommended physical therapy for claimant’s
shoulder and ordered an MRI of his knee. Gourineni further recommended arthroscopic
surgery, but claimant declined. In January 2008, Gourineni released claimant from medical
care and directed him to continue activities as tolerated.
¶6 Claimant was examined by Dr. Victor Forys, at the request of his attorney. Forys is board
certified in internal medicine. He diagnosed traumatic brain injury, knee pain, and shoulder
pain. Forys recommended Zoloft. Claimant continued to see Forys through the date of the
arbitration hearing.
¶7 At respondent’s behest, claimant was examined by Dr. Felise Zollman. She opined that
claimant suffered a work-related accident in July 2008. She diagnosed a moderate brain
trauma; a right-knee meniscus tear; and left shoulder pain and stiffness with no
range-of-motion limitation. She also diagnosed mild degenerative lumbar spine changes and
depression, “likely secondary to” traumatic brain injury. She believed claimant’s condition
was causally related to his at-work injury. She recommended a neuropsychological
assessment–conducted by a doctor fluent in Polish–to evaluate residual cognitive impairment.
Respondent authorized the course of treatment recommended by Zollman.
¶8 On February 19, 2009, Forys referred claimant to Dr. Anna Wegierek. Wegierek, a
psychologist, opined that claimant’s “neuropsychological instability” prevented him from
continuing “his daily living activities without supervision” and rendered him unable to
participate in occupational activities. Zollman reviewed and criticized Wegierek’s
methodologies. Based on Zollman’s criticisms, respondent informed claimant’s attorney that it
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would no longer authorize treatment with Wegierek. Forys also referred claimant to Dr.
Chiappidi, a neurologist. Chiappidi evaluated claimant on March 20, 2009. Chiappidi
diagnosed claimant with post-traumatic syndrome and recommended a change in claimant’s
medications, which Forys did not implement.
¶9 Claimant was evaluated by Dr. Jerry Sweet on November 10, 2009. Sweet conducted an
interview and performed a number of tests. An interpreter translated Sweets instructions and
questions into Polish. Sweet observed a number of measures indicating insufficient effort and
opined that the test results generated likely did not validly reflect post-injury functioning.
However, Sweet stated, “Despite the non-credible presentation in this evaluation, it is clear
that [claimant] suffered a serious traumatic brain injury.” Nevertheless, “present findings do
not allow a clear appraisal” of the effect of that injury.
¶ 10 An evidence deposition of Dr. Forys was conducted on April 22, 2010. Forys testified that
he is board-certified in internal medicine. Forys speaks Polish. Forys first saw claimant on
January 22, 2008, about six months after his accident. Claimant was 57-years old. Claimant
complained of headaches, heaviness, fatigue, dizziness, impulsiveness, anxiety, and decreased
concentration. A physical examination revealed a depression in claimant’s skull. Claimant had
a decreased range of motion in his neck. Claimant’s condition has remained essentially the
same ever since (Forys had seen claimant a week before the deposition), though physical
therapy resulted in a minor, temporary improvement. Forys opined that claimant’s condition
was permanent and would not improve. Claimant would need assistance with all activities of
daily living. At the time of the deposition, claimant’s only caregiver was his wife. Forys
believed claimant would benefit from home healthcare. He needs care around the clock. Forys
testified that claimant is permanently disabled and unable to work.
¶ 11 In his most recent visit with claimant, claimant’s wife reported that claimant was having
trouble with memory. Forys believed claimant might be developing a degree of dementia.
Forys continued claimant on Zoloft, which, he testified, is the only drug approved to treat
traumatic brain injury. He also prescribed Wellbutrin, which he thought might give claimant
more energy. Forys explained that claimant is not per se depressed; rather, he suffers from an
organic brain injury. Forys believed claimant should have contact with medical personnel on a
monthly basis.
¶ 12 Forys knows Wegierek. She speaks Polish fluently. Her assessments are more objective
than those of Forys. He agreed with her opinion that claimant is permanently and totally
disabled. Forys opined that claimant would continue to need total nursing care and medical
supervision. Further, claimant’s condition will deteriorate.
¶ 13 During cross-examination, Forys testified that he could not recall having referred claimant
to a specialist in traumatic brain injury. While physical therapy helped for a while, claimant
eventually “plateaued.” On redirect, Forys testified that there was no treatment that would
enable claimant to lead a normal life.
¶ 14 Claimant continued to treat with Forys. Zollman reevaluated claimant on July 8, 2010. She
opined that any vertigo experienced by claimant was not due to a central nervous system
lesion. Symptom magnification was possibly playing a “significant role in the claimant’s
current presentation.” Neither headaches nor vertigo could be objectively correlated. She
recommended claimant stop treating with Forys.
¶ 15 Dr. Zollman was deposed on September 15, 2010. She testified that she specializes in
neuro-rehabilitation and medical acupuncture. She is board certified in these areas. She
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examined claimant on two occasions–November 3, 2008 and July 8, 2010. At the first visit, in
addition to claimant, his wife and a translator were present. Claimant reported left shoulder
pain, right knee pain, dizziness, headaches, sensitivity to smell, and “some difficulty with
misplacing items around his home.” Claimant was “awake, alert, [and] oriented.” He primarily
spoke Polish. Watching claimant and the interpreter interact, Zollman concluded that claimant
“was at least not grossly impaired.” He was, on occasion, “very literal,” and his affect was “a
little bit blunted.”
¶ 16 Zollman checked claimant’s coordination. While it did not appear normal, “the manner in
which it was not normal did not–was not consistent with any kind of recognized physical
abnormality.” Zollman explained, “[I]t appeared to me to be somewhat contrived or artificial.”
¶ 17 Zollman opined that claimant’s traumatic brain injury was related to his at-work accident.
She believed claimant could return to work on a restricted basis. She recommended a
neuropsychological assessment and possibly speech therapy.
¶ 18 Zollman authored a letter dated April 29, 2009, in which she reviewed and criticized
Wegierek’s methodologies. Zollman noted that Wegierek did not perform any validity testing;
she used IQ tests that were originally written in English and translated to Polish; and she relied
on only two tests. Zollman recommended that claimant be evaluated by a neuropsychologist
who speaks Polish or had a translator available.
¶ 19 When Zollman reevaluated claimant, he reported dizziness and headaches. Knee and
shoulder pain “were really not active issues.” Claimant’s wife stated he was forgetful. At
home, claimant feeds and dresses himself (thought his wife lays out his clothes and prepares
meals). He takes care of his basic grooming and can go to the bathroom by himself. He needs
assistance in the shower. They take walks on a daily basis. Claimant’s responses to specific
questions were often vague, but he did not appear to suffer from short-term memory problems.
Claimant’s gait was normal, and he was able to do a deep-knee bend. Claimant described
vertigo; however, what he described was not consistent with “benign positional vertigo,”
which Zollman had previously diagnosed. She agreed with Sweet that treatment “should be
geared towards psychological and psychiatric care.” Zollman believed that Forys was not
providing appropriate care and that he was not “current in his understanding of traumatic brain
injury.” She disagreed that claimant’s condition would worsen, as a traumatic brain injury is
not a degenerative event.
¶ 20 On September 23, 2010, respondent moved, inter alia, to terminate payment of benefits
under the Act, arguing claimant’s failure to obtain appropriate care in accordance with
Zollman’s recommendations constituted an injurious practice. See 820 ILCS 305/19(d) (West
2010). The hearing in this case, which encompassed respondent’s motion to terminate, was had
on October 19, 2010. Respondent presented documentary evidence and the deposition of
Zollman. Claimant called four witnesses. The first identified a video recording showing
claimant engaged in daily activities.
¶ 21 Claimant’s wife, Malgorzata Lemanski, then testified. She related that claimant had
obtained vocational training in Poland and worked as a mechanic. They also operated a deli for
10 years. In 2003, they came to America. Claimant, who did not speak English, worked in
construction until 2007.
¶ 22 She assists her husband, who is 59 years old, in the shower, and she cannot leave him alone
for more than a few hours. He cannot drive or take the bus by himself. He gets confused and
loses his way. She tried to get him to cook, but he would “just burn the pots and pans” or “turn
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on the stove” and forget he did that. He can dress himself. Prior to the accident, Malgorzata
worked at a delicatessen. She no longer works because she has to take care of claimant.
¶ 23 Claimant also called Lisa Helma, a certified rehabilitation counselor who speaks Polish.
She evaluated claimant on October 5, 2009. Claimant was still in treatment and taking
medications. He used a cane and wore glasses. Claimant’s wife related to Helma that she was
trying to make claimant as independent as possible. She assisted claimant in almost all areas of
his life. Claimant had difficulty sleeping, but he would sleep 10 to 12 hours per night and also
during the day. Claimant slept a lot due to his depression. Helma reviewed claimant’s medical
records and educational history. Assuming Zollman is correct that claimant could return to
work someday, given his skills, age, and language ability, he would only be able to work in an
unskilled position. Moreover, he is only capable of sedentary work. Sedentary, unskilled
positions comprise less than one percent of the jobs available in the United States. He does not
drive and has no transferable skills. Helma opined that claimant could not work in his usual
line of employment, that he was totally disabled, and that absent a “meaningful change in [his]
medical status,” his disability was permanent. There is no stable market for claimant. Helma
did not believe that vocational training would be beneficial to claimant.
¶ 24 During cross-examination, Helma acknowledged that she also works as a veterinary
technician. She met with claimant once. She also saw him “briefly in the hall” and asked him if
there had been any change in his condition. Her opinions represented “a snapshot [of claimant]
as of October 5 of 2009.” Helma agreed that it was difficult to assess claimant’s abilities in
light of his cognitive condition. She also acknowledged that she might not have had good data
as it pertained to claimant’s IQ score. Moreover, claimant had not undergone a functional
capacity evaluation. Helma exemplified unskilled, sedentary labor by pointing to a cashier at a
tobacco stand. She clarified that the classification would not apply to all cashier positions. A
functional capacity evaluation was performed about a month prior to the hearing, and it
indicated claimant was functioning below the sedentary level. Helma agreed that if claimant
was returned to a condition where he could perform light to medium duty work and had no
cognitive impairment, it was possible “some type of vocational training” would be appropriate.
¶ 25 Claimant then testified on his own behalf. He identified himself and stated he lived in
Chicago, but could not recall the name of the street on which he lived. He stated that he is
married and has two grown children. He could not recall the last time he saw them. He could
not recall the accident or the names of the doctors who treated him. He knew he took
medications, but not what type. He stated he could not take the bus by himself, cook, or take a
shower. He sometimes needs assistance going to the bathroom. He cannot read or speak
English. He thought he had a sandwich for lunch. He was unsure whether he had a telephone.
When asked when his birth date was, he answered September of 1950. He thought he wanted to
return to work. Claimant testified that he wanted additional treatment.
¶ 26 The arbitrator denied respondent’s motion to terminate benefits, and he found that claimant
was permanently and totally disabled. He noted that respondent was arguing that claimant’s
failure to follow Zollman’s recommendations regarding appropriate treatment constituted an
injurious practice (see 820 ILCS 305/19(d) (West 2010)). Specifically, Zollman recommended
vestibular rehabilitation for vertigo; further neuropsychological testing; speech therapy; and
psychological testing and perhaps counseling for depression. The arbitrator then observed that
claimant has, in fact, “undergone a long course of treatment by qualified physicians and
therapists.” Further, after stating the credentials of Zollman and Forys, the arbitrator expressly
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found Forys more credible. He also specifically credited Helma’s testimony. As such, the
arbitrator concluded that respondent had not shown that Zollman’s recommendations offered a
reasonable prospect of restoring claimant to a level at which he could perform work.
Accordingly, he found that claimant’s failure to follow her recommendations was not a basis
for terminating benefits in accordance with section 19(d) of the Act (820 ILCS 305/19(d)
(West 2010)).
¶ 27 The arbitrator next found that claimant’s condition of ill-being was causally related to his
at-work accident. He first stated that “[a]ll of the credible evidence indicates that [claimant’s]
present condition of ill-being is causally related to the accident.” He noted that “[r]espondent
has admitted that [claimant] sustained a serious brain injury due to this accident.” The sole
issue, according to the arbitrator, is whether claimant had engaged in an injurious practice.
Having already rejected that argument, the arbitrator concluded that claimant’s at-work
accident caused his condition. The arbitrator also stated that he had observed claimant while
testifying and seen the video documenting how claimant lives on a daily basis.
¶ 28 Turning to the nature and extent of claimant’s injury and the need for prospective medical
care, the arbitrator first acknowledged Sweet’s observations about the reliability of the results
of the tests administered to claimant. Even so, Sweet concluded that claimant suffered a
“serious traumatic brain injury.” The arbitrator noted that Sweet did not address claimant’s
ability to return to gainful employment. He then relied on Helma’s testimony to conclude that
claimant is not employable in light of his age, education, training, and experience.
Additionally, respondent did not show that a stable labor market existed for claimant. As such,
later citing an odd-lot theory, the arbitrator found that claimant was permanently and totally
disabled. The arbitrator criticized Zollman’s opinion in that she believed for claimant to be a
“total care” patient, claimant would have to be unable to feed or toilet himself, needed to be
turned in bed, and required constant supervision. The arbitrator pointed out that this does not
coincide with the definition of total disability contained in section 8 of the Workers’
Compensation Act (Act) (see 820 ILCS 305/8 (West 2010)). He further criticized Zollman’s
opinion that claimant could return to work in a “supportive employment model” as not
referencing an identifiable occupation. The arbitrator then found that Forys’s opinion that
claimant was permanently and totally disabled was more credible than Zollman’s opinion.
Because claimant’s wife had to give up her job to care for claimant, the arbitrator determined
that home healthcare was needed and ordered respondent to pay for a provider for three,
eight-hour shifts per week.
¶ 29 Finally, the arbitrator declined to impose penalties and fees against respondent or to order
claimant to pay the costs of a deposition which was terminated purportedly due to the conduct
of claimant’s attorney. Respondent raised an issue as to the chain of referral. The arbitrator
concluded that claimant was initially operated on by Kranzler who referred him to Gourineni.
Claimant subsequently saw Forys, and all subsequent referrals flowed therefrom. Hence, the
arbitrator held all doctors were within the chain of referral contemplated in the Act. The
arbitrator also found that claimant had established that he had been entitled to temporary total
disability from the date of the arbitration hearing.
¶ 30 After denying various motions for fees and sanctions filed by both parties and a motion to
dismiss filed by claimant, the Commission reviewed the arbitrator’s decision. Both parties
sought review in the circuit court of Cook County (respondent’s appeal is case No.
12-L-50727; claimant’s is 12-L-50742). The cases were consolidated. The trial court
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dismissed respondent’s appeal, holding that respondent did not file an effective bond, which
deprived the trial court of jurisdiction. Despite this initial finding, the trial court went on to find
that the Commission did not abuse its discretion in denying respondent’s motion to terminate
benefits in accordance with section 19(d) of the Act (820 ILCS 305/19(d) (West 2010)).
Respondent now appeals.
¶ 31 III. ANALYSIS
¶ 32 On appeal, respondent raises four main issues. First, it challenges the Commission’s
decision that claimant is permanently and totally disabled. Second, it contends that the
Commission should have granted its motion to suspend benefits due to claimant’s purported
refusal to follow Zollman’s recommendations regarding medical treatment. Third, it argues
that Forys was not a “valid choice within [claimant’s] chain of referral of doctors pursuant to
section 8(a)” of the Act (820 ILCS 305/8(a) (West 2010)). Fourth, it contends that the trial
court erred in dismissing its case for its alleged failure to file an appropriate bond.
¶ 33 Claimant’s final point raises a question regarding our jurisdiction, and we will address it
now. To perfect an appeal, a bond must be filed by “the one against whom the Commission
shall have rendered an award for the payment of money.” 820 ILCS 305/19(f)(2) (West 2010).
Case law holds that a corporate officer need not disclose his office and authority when
executing a bond and that evidence of that authority may be provided after the usual 20-day
period for perfecting an appeal. First Chicago v. Industrial Comm’n, 294 Ill. App. 3d 685, 689
(1998). Here, the bond was executed simply by Bob Redlinski. Redlinski later submitted an
affidavit stating that he is the president of Bob Red Remodeling, Inc., and that he has authority
to bind the corporation to any financial obligation. As such, respondent complied with the
requirements of the Act for perfecting an appeal.
¶ 34 A. PERMANENT TOTAL DISABILITY
¶ 35 Respondent first argues that the Commission erred in finding claimant permanently and
totally disabled. We review this finding using the manifest-weight standard. Mansfield v.
Illinois Workers’ Compensation Comm’n, 2013 IL App (2d) 120909WC, ¶ 35. Thus, we will
not reverse unless an opposite conclusion is clearly apparent. Caterpillar, Inc. v. Industrial
Comm’n, 228 Ill. App. 3d 288, 291 (1992). This is not the case here.
¶ 36 The Commission found that claimant had proved he was permanently and totally disabled
based on both the medical evidence and an odd-lot theory. See Federal Marine Terminals, Inc.
v. Illinois Workers’ Compensation Comm’n, 371 Ill. App. 3d 1117, 1129 (2007). Respondent
contends that both findings are against the manifest weight of the evidence and, moreover, they
are inconsistent. We first turn our attention to the odd-lot theory.
¶ 37 Pursuant to this theory, a claimant may establish that he or she is permanently and totally
disabled by showing either a diligent but unsuccessful job search or that his age, training,
experience, education, and condition prevent him from obtaining stable and continuous
employment. Westin Hotel v. Industrial Comm’n, 372 Ill. App. 3d 527, 544 (2007). If the
employee is successful, the burden shifts to the employer to show that a stable job market
nevertheless exists for the employee. City of Chicago v. Illinois Workers’ Compensation
Comm’n, 373 Ill. App. 3d 1080, 1091 (2007).
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¶ 38 Disingenuously, respondent contends that the Commission, having found claimant
permanently and totally disabled based on medical evidence, erred by considering the odd-lot
theory. According to respondent, since the odd-lot category presumes a claimant can return to
work, the Commission should not have addressed it after finding that claimant could not return
to work based on his medical condition. However, respondent also contends that claimant has
not actually shown he is permanently and totally disabled based on the medical evidence and
that the Commission’s finding based on the medical evidence is contrary to the manifest
weight of the evidence. If respondent is correct that this finding is against the manifest weight
of the evidence and the Commission had not addressed the odd-lot theory, we would have to
remand to allow it to do so. Cf. Westin Hotel, 372 Ill. App. 3d at 545-46 (remanding for finding
on permanent disability where odd-lot finding was determined to be contrary to the manifest
weight of the evidence). Hence, we perceive no impropriety in the Commission’s decision to
address both theories in the first instance, as it prejudices no one and furthers the goal of
judicial efficiency.
¶ 39 The Commission noted that following his accident, claimant was never offered a job of any
sort. It further noted that respondent did not offer any evidence to establish that a job market
existed for claimant. It discounted Zollman’s testimony that claimant could return to work in a
“supported employment model,” as that did not describe an identifiable job. Moreover, the
Commission cited the testimony of Helma, a certified rehabilitation counselor, who testified
that a stable labor market did not exist for claimant. Helma opined that claimant would have to
be restored to the light-medium level in order to be employable, qualifying her testimony as a
“guarded prognosis” and assuming “no cognitive impairment.” A functional capacity
evaluation performed about a month prior to the hearing indicated that claimant was
functioning below the sedentary level. Thus, the Commission’s decision finds support in
Helma’s testimony.
¶ 40 Respondent attacks the bases underlying Helma’s opinion. Such matters are relevant to the
weight to which her opinion was entitled. Cassens Transport Co. v. Industrial Comm’n, 262
Ill. App. 3d 324, 332 (1994). Hence, these questions are primarily for the Commission to
resolve. Fickas v. Industrial Comm’n, 308 Ill. App. 3d 1037, 1042 (1999). Moreover, the
Commission’s expertise in the area of workers’ compensation is well established. Mobil Oil
Corp. v. Industrial Comm’n, 309 Ill. App. 3d 616, 624 (1999). We therefore owe such
decisions substantial deference. Id. None of respondent’s criticisms is so persuasive that we
could hold that the Commission was not entitled to rely on Helma’s opinion or that an opposite
conclusion is clearly apparent.
¶ 41 Accordingly, assuming, arguendo, that respondent is correct that the Commission erred in
finding claimant permanently and totally disabled based on the medical evidence, claimant
was nevertheless entitled to prevail on an odd-lot theory.
¶ 42 B. REFUSAL TO SUBMIT TO MEDICAL TREATMENT
¶ 43 Section 19(d) of the Act provides, in pertinent part, “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) (West 2010). In accordance
with this provision, “benefits may be suspended or terminated if the employee refuses to
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submit to medical, surgical, or hospital treatment essential to his recovery, or if the employee
fails to cooperate in good faith with rehabilitation efforts.” Interstate Scaffolding, Inc. v.
Illinois Workers’ Compensation Comm’n, 235 Ill. 2d 132, 146 (2010). Our 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.” Rockford Clutch Division, Borg-Warner Corp. v. Industrial Comm’n, 34 Ill. 2d 240,
247-48 (1966). Thus, the question before us is whether the course of treatment chosen by
claimant was unreasonable. See Allied Chemical Corp. v. Industrial Comm’n, 140 Ill. App. 3d
73, 76-77 (1986). This issue presents a question of fact, which we review using the
manifest-weight standard. Id. at 77.
¶ 44 Respondent complains that claimant did not follow Zollman’s recommended course of
treatment. Zollman recommended vestibular therapy for vertigo, neuropsychological testing,
speech therapy, and psychological testing and counseling if indicated. The Commission noted
that claimant had, in fact, “undergone a long course of treatment by qualified physicians and
therapists.” After reciting Zollman’s and Forys’s qualifications, the Commission found Forys
more credible. It also noted Helma’s testimony, and then found that respondent had not
established that Zollman’s recommended course of treatment offered “a reasonable prospect of
restoration or relief from incapacity.” We cannot say that this finding is contrary to the
manifest weight of the evidence.
¶ 45 Indeed, we note that, in essence, respondent is complaining that claimant chose to follow
the advice of his treating physician rather than that of Zollman. Admittedly, Zollman’s
credentials with respect to brain injuries are more substantial than those of Forys. However,
Forys is board certified in internal medicine, and his credentials are not insignificant. We
recognize that several other doctors agreed with Zollman’s assessment. Nevertheless, 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. At the very least, we certainly
could not say that an opposite conclusion to the Commission’s on this issue is clearly apparent.
¶ 46 C. CHAIN OF REFERRAL
¶ 47 Finally, respondent contends that Forys was not within the allowable chain of referral, as
claimant had purportedly previously elected to treat with Kranzler and Gourineni, which
would make Forys claimant’s third chosen doctor. Section 8(a) of the Act (820 ILCS 305/8(a)
(West 2010)) limits an employer’s liability to pay for medical services to (1) first aid and
emergency services and (2) two additional doctors chosen by an employee and any additional
providers and services recommended by those two doctors. See Absolute Cleaning/SVMBL v.
Illinois Workers’ Compensation Comm’n, 409 Ill. App. 3d 463, 468-69 (2011). If either
Kranzler or Gourineni was not a choice within the meaning of section 8(a), Forys would be
claimant’s second choice and respondent would not be shielded from liability for his services.
This issue presents a question of fact subject to review using the manifest-weight standard. Id.
¶ 48 The Commission found that claimant was transported by ambulance to Advocate Illinois
Masonic Hospital. While there, he was operated upon by Kranzler. Subsequently, he was
referred to Gourineni. It further found that Forys was claimant’s first choice of a physician,
which indicates that the Commission regarded Kranzler as providing emergency care. If either
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of these findings regarding Kranzler’s and Gourineni’s involvement in claimant’s care is not
contrary to the manifest weight of the evidence, respondent is liable for Forys’s services.
¶ 49 Having reviewed the record, we cannot say that the Commission’s conclusion that
Kranzler was providing emergency services is against the manifest weight of the evidence. As
noted, claimant was transported by ambulance to the emergency room on July 27, 2007. He
was admitted to the hospital and remained in the intensive care unit from that day through the
day on which Kranzler performed surgery (August 3, 2007). Kranzler’s operative report states
that claimant was monitored for several days and experienced a “progressively severe
headache combined with nausea and vomiting.” This “pattern persisted.” The report of the
surgery indicates that “dark red clotted blood was found” inside claimant’s skull. Also, “a
small bleeding point was coagulated.” The Commission could readily conclude that Kranzler’s
treatment of claimant was in response to an ongoing emergency, which flowed continually
from claimant’s accident. Moreover, given that this is a medical issue, we owe increased
deference to the Commission due to its expertise in such matters. Long v. Industrial Comm’n,
76 Ill. 2d 561, 566 (1979).
¶ 50 Respondent argues that Kranzler’s care did not constitute emergency treatment. It points
out that Kranzler did not operate on claimant until a week after claimant’s accident. Moreover,
claimant continued to follow up with Kranzler for over four months after the surgery.
Respondent set forth a portion of a dictionary’s definition of “emergency” in support of its
argument: “an unforeseen combination of circumstances or a resulting state that calls for
immediate action,” “a pressing need,” “a sudden bodily alteration such as is likely to require
immediate medical attention (as a ruptured appendix or surgical shock).” (Emphasis added.)
Webster’s Third New International Dictionary 740 (2002). We note that the same dictionary
defines “immediate” as “acting or being without the intervention of another object, cause, or
agency.” Webster’s Third New International Dictionary 1129 (2002). Here, claimant’s
medical care following his accident was continuous, and Kranzler’s surgery was a part of that
course of care. Thus, claimant received medical care without the “intervention of another
object, cause, or agency.” As such, the Commission could reasonably determine that the
surgery was “emergency treatment” within the meaning of section 8(a).
¶ 51 As for the follow-up visits, there is no indication that they consisted of any sort of
treatment other than the type that ordinarily follows a surgical procedure. While we find no
Illinois case law on this point, we find the following foreign authority persuasive. In Ceco
Steel, Inc. v. District of Columbia Department of Employment Services, 566 A.2d 1062 (D.C.
Cir. 1989), the District of Columbia Court of Appeals discussed what it termed “constructive
selection.” A claimant constructively selects a medical provider who has provided emergency
treatment if follow-up care is “extended beyond reasonable limits.” Id. at 1064. In other words,
if the treatment a claimant receives from a medical provider who has previously provided
emergency services is of the sort that typically follows such emergency services, the medical
provider does not constitute a choice of the claimant’s. This rule is logically sound and bears
obvious relevance to this case.
¶ 52 Here, nothing in the record indicates that the services provided by Kranzler were anything
other than ordinary follow up to the surgery he performed following claimant’s accident.
Kranzler saw claimant on November 8, 2007, and December 5, 2007. Letters written by
Kranzler to claimant’s insurance carrier describe both visits as follow-ups to claimant’s
surgery. Nothing is discussed outside of claimant’s head injury. Thus, the available evidence
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indicates that claimant’s post-surgery visits with Kranzler were nothing more than ordinary
follow-up appointments. As such, they are directly related to the emergency surgery and do not
constitute a choice of a medical provider for the purpose of section 8(a) of the Act (820 ILCS
305/8(a) (West 2010)).
¶ 53 Accordingly, Forys was, at most, claimant’s second choice of doctors (we therefore need
not address Gourineni’s status). We affirm this portion of the Commission’s decision.
¶ 54 IV. CONCLUSION
¶ 55 In light of the forgoing, the judgment of the circuit court of Cook County confirming the
decision of the Commission is affirmed.
¶ 56 Affirmed.
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