Plantation Manufacturing Co. v. Industrial Comm'n

NO. 2-97-0018WC, 2-97-0019WC, 2-97-0020WC

IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
INDUSTRIAL COMMISSION DIVISION

PLANTATION MANUFACTURING CO., ) Appeal from
Petitioner-Appellant, ) Circuit Court
v. ) Lake County
THE INDUSTRIAL COMMISSION, et al., ) No. 94MR97
(Maria Razo, Appellee.) )
) Honorable
) Stephen E. Walter,
) Judge Presiding.


JUSTICE RARICK delivered the opinion of the court:
Claimant, Maria Razo, sought benefits pursuant to the
Workers' Compensation Act (the Act) (820 ILCS 305/1 et seq. (West
1992)) for injuries sustained while in the employ of Plantation
Manufacturing Company (Plantation). On August 21, 1985, Razo
slipped on a wet floor and fell, injuring her back. She was
ultimately diagnosed with a herniated disc. Her physician, Dr.
Allan Minster, recommended lumbar surgery, but Razo declined.
She did undergo a work hardening program and rehabilitation at
Plantation's expense. An arbitration hearing was held on
February 9, 1988. The arbitrator found Razo to be permanently
partially disabled to the extent of 30% of the person as a whole,
and awarded temporary total disability (TTD) benefits for 54 4/7
weeks. This decision was confirmed by the Industrial Commission
(the Commission).
On October 20, 1992, Razo filed a petition pursuant to
section 8(a) of the Act, seeking an order requiring Plantation to
pay for a lumbar surgery that her physician had prescribed, but
had not yet performed.
A hearing on Razo's section 8(a) petition was held July
15, 1993. Razo testified that since the date of her original
arbitration hearing, the pain and numbness in her back had gotten
worse. Razo also stated that at the time of arbitration she
declined to have surgery because she feared death from
anesthesia. Admitted into evidence were the results of a
September 28, 1990, CT scan. According to the report, the scan
revealed a central and right lateral herniated disc at L3-L4,
which was not present in 1985, and a small central herniated disc
at L4-L5. The test also indicated a spinal stenosis at the L4-L5
level which could possibly be made worse by a herniated disc.
Oddly, the report concluded that the examination ruled out a
herniated disc at the L3-L4 level, central and to the right. On
November 9, 1990, Razo was examined by Dr. Marshall Matz at
Plantation's request. His report indicated that in addition to
an examination, he reviewed the September 28, 1990, CT scan. Dr.
Matz opined that given the subjective nature of Razo's
complaints, surgery offered only a remote probability of relief
and would be hazardous.
On January 16, 1991, Dr. Minster had again recommended
surgery based on the failed conservative treatments, two
ineffective epidural steroid injections, physical therapy and
work hardening that worsened Razo's symptoms, and no work since
1985. Dr. Minster had scheduled Razo for surgery on November 9,
1991, but Plantation refused to authorize payment for the
procedure based on Dr. Matz's report.
Razo was examined on October 28, 1992, by Dr. Irwin
Barnett. He found reduced lumbar range of motion, diminished
sensation at the right thigh and anterior right leg below the
knee, and atrophy in the right thigh and calf. Based on his
examination and on x-ray, Dr. Barnett opined that the clinical
and x-ray findings indicated the possibility of a herniated disc
at L3-L4 and/or L4-L5, and recommended that surgery be
considered. Dr. Barnett concluded that Razo had sustained a
major loss of the person as a whole.
Dr. Matz examined Razo again on November 27, 1992. He
found some limited range of motion and weakness in her legs, no
sensory loss and no atrophy. He concluded that her complaints
were not substantiated by the neurological examination. He also
opined that Razo's choice of no work since 1985 was motivational
in nature because there was no evidence of residual organic low
back impairment. Dr. Matz further opined that Razo needed no
further medical treatment for any work accident residuals. Based
on Dr. Matz's reports, Plantation declined to pay for Razo's
prescribed surgical treatment.
On February 17, 1994, the Commission ruled that Razo
had established that her condition was causally connected to the
August 21, 1985, work accident and, relying in part on Zephyr,
Inc. v. Industrial Comm'n, 215 Ill. App. 3d 669, 576 N.E.2d 1
(1991), ordered Plantation to pay for the prescribed surgery.
The circuit court of Lake County remanded the cause to the
Commission for a review of the decision and issue of an order
regarding the Commission's findings under section 8(a). The
Commission subsequently ordered Plantation to provide written
authorization to the surgeon and to pay all reasonable and
necessary bills related to that surgery. The circuit court again
remanded the cause, this time for a determination of Razo's
ability to pay. At a hearing on November 30, 1995, Razo
testified that she had no health insurance, received no public
aid, and had no money to pay for the surgery. The Commission
found that Razo was unable to pay for the surgery, but noted its
opinion that a claimant's ability to pay for medical care was not
relevant to an employer's obligation under section 8(a). The
circuit court confirmed the decision.
On appeal, Plantation first argues that section 8(a) of
the Act does not require it to pay for future, speculative
medical costs not yet incurred. Plantation contends that both
the plain language of section 8(a) and the statute's legislative
history support its position.
Section 8(a) of the Act provides in relevant part:
The employer shall provide and pay for all
the necessary first aid, medical and surgical
services, and all necessary medical, surgical
and hospital services thereafter incurred,
limited, however, to that which is reasonably
required to cure or relieve from the effects
of the accidental injury. The employer shall
also pay for treatment, instruction and
training necessary for the physical, mental
and vocational rehabilitation of the
employee, including all maintenance costs and
expenses incidental thereto. If as a result
of the injury the employee is unable to be
self-sufficient the employer shall further
pay for such maintenance or institutional
care as shall be required. 820 ILCS 305/8(a)
(West 1994). (emphasis added)
Plantation argues that the language of the statute is
plain and unambiguous, and precludes awards for prospective
medical treatment. Specifically, Plantation maintains that the
word "incurred" is in the past tense, demonstrating the
legislature's intent that the employer's liability for medical
expenses be limited to those already provided for prior to
arbitration. In support of its argument, Plantation points to
the legislative history of section 8(a), as well as other
sections of the statute which speak in the past tense.
The word "incurred" was added to section 8(a) by P.A.
79-79, effective July 1, 1975. The Senate Debates on P.A. 79-79,
Plantation argues, demonstrate that the legislature added the
word "incurred" to limit an employer's liability for prospective
medical treatment. Plantation has included the text of the
debate in an appendix in its brief. Reviewing the debate, we
conclude that it does not support Plantation's position. The
debate indicates that the practice of the employer affording the
injured worker medical care shall continue unless the employee
later on elects to secure his own medical care. Nothing in the
debate indicates any intent to limit the employer's liability for
medical care to that already provided prior to arbitration.
Plantation also contends other parts of the statute,
including the section on the employee's choice of medical
treatment, also speak in the past tense. The consistent use of
the past tense in reference to medical treatment, Plantation
argues, further demonstrates the legislature's intent to limit
the employer's liability for prospective medical treatment.
Plantation misinterprets the statute. The term "incurred," as
used in the statute, refers to the necessity of the medical
treatment or procedure having been incurred, not the costs
thereof. Specific medical procedures or treatments that have
been prescribed by a medical service provider have been
"incurred" within the meaning of the statute, even if they have
not yet been paid for. To limit the scope of section 8(a) to
treatments already performed or paid for would be contrary to the
remedial purpose of the Act and the mandate to interpret the Act
liberally so as to affect that purpose. Hardin Sign Co. v.
Industrial Comm'n, 154 Ill. App. 3d 386, 506 N.E.2d 1066 (1987).
Plantation next argues that the Commission misapplied
our holding in Zephyr v. Industrial Comm'n, 215 Ill. App. 3d 669,
576 N.E.2d 1 (1991). Plantation maintains that Zephyr does not
stand for the proposition that section 8(a) authorizes the
Commission to award prospective medical expenses, only that the
employer could be held liable for the remodeling of the injured
employee's home even though such modifications are not explicitly
authorized by section 8(a).
In Zephyr, the claimant sustained a work injury which
resulted in the complete loss of use of both legs. The parties
agreed that the claimant was permanently and totally disabled.
The arbitrator ordered Zephyr to pay for the remodeling of the
claimant's home, finding such changes "reasonable and necessary"
for the claimant's physical, mental, and occupational
rehabilitation under section 8(a). On appeal, Zephyr argued that
this decision was contrary to the manifest weight of the evidence
because, inter alia, that the claimant's proposed modifications
were based upon a rough estimate of costs, and were therefore too
speculative and uncertain upon which to base a dollar award
against Zephyr, and that section 8(a) did not cover payment for
remodeling of an employee's home. In rejecting these arguments
we held that claimant's proposal was based upon a comprehensive
plan and that the amount of the award was supported by the
evidence, and that while the explicit language of 8(a) did not
refer to home modifications, neither did a fair reading of the
statute preclude such compensation, and that the result was in
keeping with the Act's purpose. Zephyr, 215 Ill. App. 3d at 76-
79, 576 N.E.2d at 4-7.
Although the court in Zephyr did not specifically hold
that section 8(a) authorized the Commission to award prospective
medical expenses, the Commission's award was clearly prospective
in nature as the expenses for modifying claimant's house had not
yet been paid. Zephyr is illustrative of the fact that expenses
need not have to have been paid to have been incurred.
Plantation next argues that even if section 8(a) gives
the Commission the authority to grant prospective medical
benefits, doing so in the present case was contrary to the
manifest weight of the evidence because the issue of
reasonableness and necessity of such benefits was never litigated
at the arbitration hearing, and that the medical evidence
produced at the hearing on the section 8(a) petition does not
support such an award.
At the hearing on Razo's section 8(a) petition, the
reports of Drs. Minster and Barnett were submitted into evidence.
Dr. Barnett opined that surgical intervention should be
considered and Dr. Minster's report indicated that Razo had two
choices, live with the pain or have surgery, and that Razo chose
surgery. The reports of Dr. Matz, indicating that surgery was
unwarranted, were also admitted.
In its February 17, 1994, decision on Razo's section 8
petition, the Commission reviewed all of the evidence before it
and specifically concluded that the prescribed surgery was
reasonable and necessary. While the issue of reasonableness and
necessity may not have been addressed at the arbitration hearing,
it was before the Commission.
With respect to Plantation's argument that the medical
evidence does not support the award, it is well settled that it
is the province of the Commission to resolve conflicts in the
medical evidence and its decision in that regard will not be set
aside on review unless it is contrary to the manifest weight of
the evidence. Prairie Farms Dairy v. Industrial Comm'n, 279 Ill.
App. 3d 546, 664 N.E.2d 753 (1996).
The manifest weight of the evidence is that
which is clearly evident, plain and
indisputable weight of the evidence. In
order for a finding to be contrary to the
manifest weight of the evidence, an opposite
conclusion must be clearly apparent. McRae
v. Industrial Comm'n, 285 Ill. App. 3d 448,
451, 674 N.E.2d 512, 514 (1996).
Stated differently, a decision is contrary to the manifest weight
of the evidence only when, after viewing the evidence in a light
most favorable to the agency, the court determines that no
rational trier of fact could have agreed with the agency's
decision. Beeler v. Industrial Comm'n, 179 Ill. App. 3d 463,
467, 534 N.E.2d 408, 411 (1989), quoting Board of Trustees of
Southern Illinois University v. Knight, 163 Ill. App. 3d 289,
291, 516 N.E.2d 991, 993 (1987).
Reviewing the record, we find that Dr. Minster's
opinion, which the Commission found to be more persuasive than
that of Dr. Matz's, supports the Commission's determination that
the surgery was reasonable and necessary. Plantation contends
that the objective diagnostic tests ordered by Dr. Minster and
upon which he relied do not support the need for surgery. Dr.
Matz's opinion, Plantation maintains, is more persuasive because
it is supported by objective diagnostic evaluations. As we have
frequently held, however, it is not the function of this court to
reweigh the evidence and substitute our judgment for that of the
Commission. Archer Daniels Midland Co. v. Industrial Comm'n, 138 Ill. 2d 107, 561 N.E.2d 623 (1990).
We note that in its March 7, 1996, decision, the
Commission ordered Plantation to provide written authorization to
Dr. Minster to perform the surgery prescribed. This would leave
Plantation with no recourse to challenge the reasonableness of
the cost of the surgery. We therefore modify the decision of the
Commission by eliminating the direction to execute such
authorization. We find the surgery to be necessary and order
Plantation to pay all reasonable costs in connection therewith.
Finally, we feel it necessary to comment on the circuit
court's order remanding the cause for a determination of Razo's
ability to pay, and the Commission's notation that a claimant's
ability to pay is not relevant to an employer's obligation under
section 8(a). The Commission is correct. Nothing in section
8(a) limits the employer's obligation to pay for medical
treatment, prospective or otherwise, to situations where the
claimant cannot pay.
For the foregoing reasons, the judgment of the circuit
court of Lake County is affirmed as modified.
Affirmed as modified.
McCULLOUGH, P.J., and RAKOWSKI, COLWELL, and HOLDRIDGE,
JJ., concur.