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IL WC UPDATE: New Accident While Seeking Treatment from Prior Accident Found Not Compensable

In 2019, the Third District Appellate Court issued a Rule 23 Decision in Gaytan v. The Illinois Workers’ Comp. Comm’n, 2019 IL App (3d) 180141WC-U, in which they found a petitioner’s second accident, suffered en route to treatment for the original accident, not to be compensable.

The petitioner originally suffered an accepted accident that caused left elbow injuries.  As she was driving to an appointment for related left elbow treatment, she was involved in a head-on collision with another car, suffering new injuries.  The Arbitrator, Commission, and Circuit Court all found that this second auto accident was not a compensable workers’ compensation accident.  The Appellate Court agreed and explained their reasoning for this decision.

The Court gave significant weight to the fact that the employer had not directed the petitioner to seek that particular treatment at that facility on that date.  The Court also examined a prior case, Lee v. Indus. Comm’n, 167 Ill. 2d 77, 656 N.E.2d 1084, (1995), and commented on a distinguishable circumstance where a second accident while seeking treatment could be compensable.  Specifically, if an employee was instructed to seek treatment while in the middle of a shift, and did so “while on the employer’s dime,” that situation could be compensable.  Gaytan at ¶ 46.

The Court also addressed the argument that the respondent was aware of the medical appointment at the time of second accident.  The Court found that respondent’s knowledge did not make the accident compensable, and again focused on the fact that the petitioner’s decision to seek that treatment was not a duty of her employment.  Furthermore, the fact that the employer offered for a translator to accompany the petitioner to the appointment also did not establish that the employer was requiring the petitioner to attend the appointment.

The Court also responded to the petitioner’s argument that, since the head of HR at the employer had suggested that the petitioner seek treatment at the particular clinic the petitioner was heading to, the recommendation should actually be interpreted as a “polite command.”  However, the Court also noted that the HR head had explicitly explained to the petitioner that she could seek treatment wherever she wanted.  The Court found that this was indeed simply a suggestion rather than a subtle instruction.

Lastly, the Court discussed the fact that the employer-provided translator had instructed the petitioner to follow her to the clinic, in order to help the petitioner find the facility’s location.  The Court found that this translator was not the petitioner’s supervisor and that the petitioner would not have suffered any reprimand or discipline from deciding not to follow the translator to the clinic.

As this is an unpublished opinion, this case cannot be cited as binding precedent in future cases. It still serves, however, as a useful indicator of the Court’s perspective on these situations.  As we can see, the primary factor used to assess the compensability of a second accident that occurs in route to an appointment for a workers’ compensation claim is whether the respondent controlled the petitioner’s attendance at the particular medical facility at issue.  If the petitioner is exercising their own independent choice on where and when to treat, then it appears that the Respondent has a good argument that any such accident in transit to the appointment will not be compensable. 

Thanks to attorney Michael Bantz for this update and summary. Michael is a regular contributor to the blog and represents Illinois employers on behalf of the firm from our Champaign office.

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