Wednesday, January 14, 2015

Whose Body Is It Anyway?

The cardinal rule in workers' compensation has always been, control of the medical is control of the case.

Those in work comp litigation understand this concept very well, on both sides of the fence.

A recent Illinois case is demonstrative.

In Bob Red Remodeling Inc. v. Illinois Workers' Compensation Commission (Lemanski), No. 1-13-0974WC, 12/31/2014, Zenon Lemanski, a mono-lingual Polish immigrant, suffered a traumatic brain injury in July 2007 when he fell 11 feet from a rooftop while working for Bob Red Remodeling.

He was hospitalized for several days after his fall, and he underwent a craniotomy, performed by Dr. Leonard Kranzler.

Lemanski followed up with Kranzler after being discharged from the hospital. He then began seeing Dr. Prasad Gourineni, an orthopedic specialist.

On the advice of his attorney, Lemanski later switched to Dr. Victor Forys as his treating physician.

Bob Red also had Lemanski see Dr. Felise Zollman for an evaluation.

Zollman recommended vestibular rehabilitation for Lemanski's vertigo, further neuropsychological testing, speech therapy, psychological testing and perhaps counseling for depression.

Bob Red authorized the course of treatment recommended by Zollman, but it refused to authorize treatment from Dr. Anna Wegierek, a psychologist to whom Forys had referred Lemanski.

Let's hit the pause button here for a moment: 

The employer controlled physician recommended evaluation for potential depression. Lemanski goes to see a psychologist (which to me seems reasonable under the case facts), just not the specific psychologist that the employer wants.

Play button:

Bob Red filed a motion to terminate the payment of benefits to Lemanski based on his failure to obtain care in accordance with Zollman’s recommendations.

An arbitrator denied the motion, because Bob Red could not show that Zollman’s recommendations offered a reasonable prospect of restoring Lemanski to a level at which he could perform work, and instead found Lemanski to be permanently and totally disabled.

The Illinois Workers' Compensation Commission upheld the arbitrator's ruling, and Bob Red sought judicial review.

A judge from the circuit court of Cook County dismissed the appeal based on Bob Red's failure to file an effective appeal bond, but the judge proceeded to address the merits of the dispute anyway. The judge opined that it was not an abuse of discretion for the Commission to deny Bob Red's motion to terminate.

Bob Red appealed, after correcting the deficiency with its appeals bond.

The appellate court said that Lemanski's decision to follow the advice of his treating physician rather than the advice of Zollman was not unreasonable.

"Admittedly, Zollman’s credentials with respect to brain injuries are more substantial than those of Forys," the court said, but "Forys is board certified in internal medicine, and his credentials are not insignificant."

But the relevant inquiry "is not which course of treatment was superior, it is whether claimant’s behavior was reasonable under the circumstances," the court said, and it found Lemanski wasn't unreasonable in listening to Forys.

This isn't an issue of compliance with a set of medical treatment guidelines, it's a dispute over who is going to invade the psychological space of the patient: a doctor that is chosen by the patient (well, in this case, the patient's attorney), or a doctor that may be better controlled by the "payer" employer.

In other words, who's body is it?

The likelihood is that Lemanski doesn't really know which doctor, if any of them, is best for his physical and mental health. But he chose to put trust in his attorney, for better or for worse.

As in the majority of workers' compensation treatment cases, Lemanski himself wasn't in control of his medical destiny.

At least relative to litigation outcomes, the attorney-directed medical was probably a better choice as this got Lemanski a finding of permanent total disability, and frankly based on the facts recited by the appellate opinion, that's probably a fair award.

Perhaps Lemanski did receive the very best care for traumatic brain injury ... or maybe he did. We don't know.

The kicker: Bob Red was liable for the cost of Forys' treatment.

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