{ "id": 5085099, "name": "LARRY W. REYNOLDS, Plaintiff-Appellee, v. WARREN E. DANZ, Indiv. and d/b/a Warren E. Danz, P.C., Defendant-Appellant", "name_abbreviation": "Reynolds v. Danz", "decision_date": "1988-08-08", "docket_number": "No. 3\u201488\u20140065", "first_page": "907", "last_page": "915", "citations": [ { "type": "official", "cite": "172 Ill. App. 3d 907" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "431 N.E.2d 374", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "pin_cites": [ { "page": "377" } ], "opinion_index": 0 }, { "cite": "88 Ill. 2d 514", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3082762 ], "weight": 2, "pin_cites": [ { "page": "520" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/88/0514-01" ] }, { "cite": "408 N.E.2d 198", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "81 Ill. 2d 229", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5480680 ], "pin_cites": [ { "page": "238" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/81/0229-01" ] }, { "cite": "399 N.E.2d 603", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "78 Ill. 2d 150", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3074319 ], "opinion_index": 0, "case_paths": [ "/ill-2d/78/0150-01" ] }, { "cite": "444 N.E.2d 164", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 5, "year": 1979, "pin_cites": [ { "page": "167" }, { "page": "168" }, { "page": "169", "parenthetical": "Simon, J., dissenting" } ], "opinion_index": 0 }, { "cite": "510 N.E.2d 409", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "156 Ill. App. 3d 154", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3504673 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/156/0154-01" ] }, { "cite": "93 Ill. 2d 353", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3102733 ], "weight": 6, "year": 1983, "pin_cites": [ { "page": "362" }, { "page": "362" }, { "page": "363" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/93/0353-01" ] } ], "analysis": { "cardinality": 844, "char_count": 18166, "ocr_confidence": 0.769, "pagerank": { "raw": 7.291804728892106e-08, "percentile": 0.43377876470790383 }, "sha256": "01bef87a810027020b2367020c64cc06fc34d15c9d5d5d47551ae6ec5aebce15", "simhash": "1:a5d3b47b9ab408bf", "word_count": 2850 }, "last_updated": "2023-07-14T18:07:18.987882+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "LARRY W. REYNOLDS, Plaintiff-Appellee, v. WARREN E. DANZ, Indiv. and d/b/a Warren E. Danz, P.C., Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE BARRY\ndelivered the opinion of the court:\nOn January 20, 1986, plaintiff, Larry Reynolds, brought this action in the circuit court of Peoria County for damages allegedly resulting from the malpractice of defendant attorney Warren Danz. Plaintiff claims that he suffered a back injury at work for which he has not been fully compensated because defendant failed to pursue timely remedies on his behalf under the Workers\u2019 Compensation Act (Ill. Rev. Stat. 1985, ch. 48, par. 138.1 et seq.) (count I), the Structural Work Act (Ill. Rev. Stat. 1985, ch. 48, par. 60 et seq.) (count II), and the Social Security Act (count III). With respect to count I, both parties moved for summary judgment. On January 26, 1987, the trial court denied defendant\u2019s motion and granted judgment in favor of plaintiff on the issue of liability. The trial court found as a matter of law that defendant \u201ccommitted acts of negligence and professional malpractice by failing to perfect a timely appeal\u201d of an adverse decision in plaintiff\u2019s workers\u2019 compensation claim and that the adverse decision by the Industrial Commission was against the manifest weight of the evidence and it would have been reversed on appeal to the circuit court had an appeal been timely perfected.\nThe court\u2019s findings were affirmed on defendant\u2019s motion for reconsideration. The parties then agreed that the court\u2019s decision involves questions of law as to which \u201cthere is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation.\u201d The court, accordingly, certified these questions for review:\n\u201c(1) Was the decision of the Industrial Commission against the manifest weight of the evidence or contrary to Illinois law when the Commission found as follows:\n\u2018The Commission further notes that the evidence presented on review basically addressed the question of Petitioner\u2019s condition of ill-being subsequent to the February 4, 1982 surgery, but not the threshold issue of whether or not that surgery was reasonable and necessary as the result of the accident of May 7, 1980, and also references Zick v. Industrial Commission, 93 Ill. 2d 353 (1983)\u2019?\u201d\nand\n\u201c(2) Even assuming, arguendo, that the Commission was correct in its finding that the surgery was not \u2018reasonable and necessary as the result of the accident of May 7, 1980,\u2019 is an employer liable under the Workers\u2019 Compensation Act for a condition of ill-being or disability resulting from such surgery where the surgery was performed by a physician of the employee\u2019s choice?\u201d\nThe appeal was perfected to this court pursuant to Supreme Court Rule 308 (107 Ill. 2d R. 308).\nBecause the first question concerns the manifest weight of the evidence, it is necessary to set forth in some detail a history of plaintiff's injury as it appears from the Industrial Commission record. On May 7, 1980, plaintiff was employed as an electrician-welder. Plaintiff sprained or strained his back while lifting a steel I-beam overhead. Plaintiff promptly reported the injury and received conservative medical treatment for lumbar strain, including Dynawave, moist heat, exercises and instructions to avoid heavy lifting and to rest in bed when at home.\nPlaintiff was subsequently hospitalized and treated conservatively by Dr. Saleh Obaisi, M.D., who initially diagnosed plaintiff\u2019s condition as \u201csevere sprain of lumbosacral region of the spine.\u201d Obaisi referred plaintiff to Dr. M. Stephen Huss, an orthopedist, who described plaintiff\u2019s condition as \u201can acute lumbosacral strain which has become chronic.\u201d Plaintiff was also referred to Dr. Jerome Kaufman, head of the department of neurosurgery at Carle Clinic, Urbana. Dr. Kaufman reported that plaintiff had been seen by Drs. Menguy and Tobin of the orthopedics and neurology departments, respectively. A myelogram was done which disclosed \u201cno significant root defect, either cervical or in the lumbosacral area.\u201d Electromyography and nerve conduction studies were performed as well, and they \u201cwere completely within normal limits with no objective evidence of any radiculopathy or neuropathy.\u201d Conservative treatment and anti-inflammatory and muscle relaxant drugs were recommended.\nIn September 1980, Obaisi saw plaintiff again and wrote, \u201cIt seem[s] clearly that this case is a chronic type of strain to the bone and ligaments of the lumbar spine affecting the spinal nerves.\u201d At that time, Obaisi recommended that plaintiff not return to his usual type of work.\nPlaintiff filed for and received temporary total disability benefits under the Workers\u2019 Compensation Act for the period May 7, 1980, through January 14, 1981. On January 15, 1981, plaintiff returned to work as a welder, having received a full release from Dr. Obaisi. Plaintiff testified that he continued to experience pain, stiffness and swelling in the back; however, he was not reinjured and did not see a doctor again until January 1982. Meanwhile, plaintiff was dismissed from his employment in November 1981 for failure to wear safety glasses.\nAfter his dismissal, plaintiff discussed his condition with a friend who suggested that plaintiff see Dr. Lawrence B. Holden, a neurosurgeon at St. Francis Hospital, Peoria. Plaintiff was subsequently referred to Dr. Holden by defendant. On January 8, 1982, Holden interviewed plaintiff and performed an examination. Holden noted no limitation or restriction of activity at the time; but, based on plaintiff\u2019s complaint of back pain radiating into the left leg (according to Dr. Holden\u2019s deposition testimony), the doctor recommended that plaintiff be as active as possible and return for reexamination in a month. Plaintiff did as he was told, engaging in various physical activities, including scuba diving, erecting a shed on his property, wood chopping and motorcycling.\nOn January 22, plaintiff returned to see Dr. Holden complaining of increased pain in the right leg and low back. Plaintiff was hospitalized and, upon examination, had forward flexion limited 45 degrees and positive straight leg raising on the right of 45 degrees. X rays revealed straightened usual lumbar lordosis creating the impression of spasm. When bedrest failed to give plaintiff any relief, Holden decided to operate. On February 4, 1982, without performing any further tests, Holden performed a lumbar laminectomy. He noted a protruded disk at the L5, SI interspace level and removed the central portion of the 5th disk. Holden admitted that he had seen a letter from Dr. Kaufman to Dr. Obaisi dated September 17, 1980, in which Kaufman had stated that myelogram and nerve conduction testing had been done indicating no disk or nerve root involvement at that time. He further admitted that a protruded disk could have been caused by something other than plaintiff\u2019s May 1980 accident; but he did not believe that the activities plaintiff said he had engaged in between the two examinations in January would have done more than aggravate an already existing protruded disk.\nAt his appearance before the Industrial Commission in September 1983, plaintiff testified that he continued to see Dr. Holden on a monthly basis. Plaintiff stated that he felt that his condition was deteriorating because the pain continued in his low back and both legs and radiated up into his shoulders.\nBased on the foregoing evidence, plaintiff\u2019s claim for workers\u2019 compensation benefits after January 14, 1981, was denied. The arbitrator found \u201cno evidence that the surgery performed by Dr. Holden *** was necessary or required,\u201d and that plaintiff\u2019s \u201ccurrent low back problems exist subsequent to surgery not necessitated by [the May 7, 1980,] accident.\u201d The arbitrator concluded that plaintiff had \u201cfailed to prove any causal connection between the *** accident and the present condition of ill-being complained of.\u201d\nOn review before the Industrial Commission, the arbitrator\u2019s decision was affirmed in an opinion dated September 7, 1984. The Commission observed that another examining physician, Dr. John G. Meyer, who had seen plaintiff in March 1983, testified that he could not state whether plaintiff\u2019s condition at that time was caused by the 1982 surgery. The Commission noted further that plaintiff\u2019s evidence failed to address the issue of whether the 1982 surgery was reasonable and necessary as a result of the May 7, 1980, accident. The Commission therefore concluded that it had no reason to change the decision of the arbitrator. The Commission\u2019s decision was not appealed to the circuit court, as aforesaid.\nWhen leave to appeal an interlocutory order is granted under Supreme Court Rule 308, our review is limited to those questions that have been certified by the trial court. (Zimmerman v. Northfield Real Estate, Inc. (1986), 156 Ill. App. 3d 154, 510 N.E.2d 409.) It seems logical to consider the questions certified in this case in the reverse order presented. The second question asks whether an employer is liable under the Workers\u2019 Compensation Act for a condition of ill-being or disability resulting from surgery that is unreasonable and unnecessary when that surgery is performed by a physician of the employee\u2019s choice. Defendant says that the answer is \u201cno\u201d and cites to Zick v. Industrial Comm\u2019n (1982), 93 Ill. 2d 353, 444 N.E.2d 164. Plaintiff seeks to distinguish Zick on its facts, pointing out that, unlike this case, issues of the operating doctor\u2019s malpractice and the claimant\u2019s mistreated congenital anomaly were there introduced. Plaintiff suggests that Brooks v. Industrial Comm\u2019n (1979), 78 Ill. 2d 150, 399 N.E.2d 603, is factually analogous and supports the trial court\u2019s finding of liability here.\nIn Zick, the arbitrator denied claimant workers\u2019 compensation benefits on the ground that there was no causal relationship between claimant\u2019s injury and her present condition of ill-being. This decision was upheld on review by the Commission and the circuit court. In addressing the issue of the respondent employer\u2019s liability, the supreme court observed that the Commission had determined that the claimant\u2019s condition of ill-being resulted from mistreatment of a congenital anomaly of the foot, not from claimant\u2019s earlier, work-related injury. The court did not find the Commission\u2019s factual determination contrary to the manifest weight of the evidence. On appeal, the claimant argued that even if her treating physicians had committed malpractice, she was obliged to seek medical treatment for the foot following the injury and her employer should be liable for any aggravation of the injury or new injuries resulting from her doctors\u2019 malpractice. Zick, 93 Ill. 2d at 362, 444 N.E.2d at 167.\nThe Zick majority disagreed. They reasoned:\n\u201c[Claimant voluntarily submitted to treatment by a physician of her choice. Where such treatment results in a disability unrelated to an injury sustained during employment, it would be unjust to hold the respondent liable. Cf Collier v. Wagner Castings Co. (1980), 81 Ill. 2d 229, 238[, 408 N.E.2d 198] (the likelihood that plaintiff\u2019s chosen doctor would inflict emotional distress is plaintiff\u2019s risk, not the employer\u2019s).\u201d 93 Ill. 2d at 362, 444 N.E.2d at 168.\nIn his dissent, Justice Simon took strong exception to the majority\u2019s holding \u201cthat even if claimant\u2019s current disability was caused by an operation induced by work-related pain, she cannot recover for it if the choice of doctors was her own.\u201d (93 Ill. 2d at 363, 444 N.E.2d at 169 (Simon, J., dissenting).) In support of his position that this holding was unwarranted, Justice Simon cited to numerous precedents, including Brooks, wherein compensation had been approved despite the fact that the claimant\u2019s condition of ill-being resulted from treatment by a physician of claimant\u2019s choosing.\nObviously, Zick, being the more recent decision, overrules Brooks to the extent that the precise question here presented was addressed in Brooks. In the present case, plaintiff voluntarily submitted himself to Dr. Holden for treatment. Assuming that Dr. Holden\u2019s surgery in this case was not \u201creasonable and necessary as the result of the accident of May 7, 1980,\u201d and assuming further that plaintiff\u2019s condition of ill-being resulted from that surgery, Zick clearly controls the question of the employer\u2019s liability. As we see it, the parties essentially are asking this court to determine whether Zick remains good law. It does. Zick was decided by this State\u2019s highest court and has never been overruled. Accordingly, we agree with defendant that the second question certified for our review must be answered in the negative.\nThe first question certified for our review asks whether the Industrial Commission\u2019s decision was contrary to Illinois law or against the manifest weight of the evidence. The question is unnecessarily complicated by language quoted from the Commission\u2019s written opinion which the parties have characterized as the Commission\u2019s \u201cfinding.\u201d The Commission, in affirming the arbitrator\u2019s decision to deny benefits, made an observation about the nature of the evidence presented by plaintiff in support of his request for review. That is, that plaintiff\u2019s proof went to the question of whether plaintiff was temporarily or permanently, partially or totally disabled subsequent to Dr. Holden\u2019s surgery in February 1982, but failed to enlighten the Commission on the linchpin issue of whether there was a causal relationship between plaintiff\u2019s present condition of ill-being and the May 7, 1980, accident. In this regard, the Commission cited to Zick. We interpret the Commission\u2019s comments to mean simply that the additional evidence presented by plaintiff on review missed the point. In order to overcome the arbitrator\u2019s decision, plaintiff would have had to establish that his condition of ill-being was the result of the accident and not some intervening cause or Dr. Holden\u2019s surgery itself.\nAs we have earlier noted, the employer\u2019s liability is limited where treatment by a physician of the claimant\u2019s choice results in a condition of ill-being unrelated to a work injury. (Zick, 93 Ill. 2d 353, 444 N.E.2d 164.) Thus, we find that the Commission properly focussed on the causal relationship between plaintiff\u2019s current disability and the May 7,1980, accident.\nThe arbitrator found that plaintiff\u2019s condition as a result of the accident did not justify surgery. There is ample support for this conclusion inasmuch as no less than five physicians who examined plaintiff after the accident determined that surgery was not indicated. There was evidence that plaintiff improved with conservative treatment, inasmuch as plaintiff was given a full release from his doctor in January 1981. Plaintiff did not develop objective symptoms of a back injury until January of 1982, after he had worked without restrictions or reinjury for approximately 11 months and, at Dr. Holden\u2019s request, had engaged in as much physical activity as he could immediately prior to Holden\u2019s follow-up examination in January 1982. At that point, plaintiff\u2019s condition was noticeably deteriorated. Without further testing to determine whether conservative treatment was still appropriate, Dr. Holden performed back surgery in February and found a protruded disk. Dr. Holden could not state from objective evidence that the protrusion had developed as a result of plaintiff\u2019s work-related injury in 1980. There was some evidence that back surgery could result in the condition of ill-being that plaintiff complained of at the time of his hearing before the Industrial Commission. Plaintiff testified before the Commissioners that the pain radiating from his back was worsening, thereby supporting the conclusion that the surgery itself caused his current condition of ill-being.\nThe facts before us are similar to those presented in Odie v. Industrial Comm\u2019n (1982), 88 Ill. 2d 514, 431 N.E.2d 374. There, as here, the Commission found that the claimant\u2019s evidence was inadequate to establish the reasonableness or necessity of back surgery performed by a physician of the claimant\u2019s choosing several months after an injury at work and after conservative treatment had been indicated in the absence of objective clinical findings. There, as here, there was evidence that the claimant had left his employment for reasons unrelated to his injury before seeking surgical treatment. On review, our supreme court affirmed the denial of workers\u2019 compensation benefits, stating,\n\u201cDr. Berry went ahead with the surgical procedure even though the findings of Dr. Vaidya and the myelogram results did not indicate there was any need for it. And the surgery established that claimant did not have a herniated disc or any other abnormality requiring such treatment. Reluctant as we are to set aside the independent judgment of the operating physician, the facts here so clearly justify the conclusion that the lumbar fusion was not reasonably required that we cannot say the Commission erred.\u201d 88 Ill. 2d at 520, 431 N.E.2d at 377.\nAs the court observed in Odie, we are obliged to accept the Commission\u2019s determination on the question of whether medical treatment is reasonable and necessary to cure or relieve from the effects of an accidental injury (see Ill. Rev. Stat. 1985, ch. 48, par. 138.8(a)) if that finding is not contrary to the manifest weight of the evidence. The Commission\u2019s decision denying benefits in this case is not contrary to the manifest weight of the evidence. Accordingly, we answer the first question certified for our review in the negative as well.\nThe judgment of the circuit court is reversed and this cause is remanded for further proceedings consistent with the holdings herein.\nReversed and remanded.\nSTOUDER, RJ., and SCOTT, J., concur.", "type": "majority", "author": "JUSTICE BARRY" } ], "attorneys": [ "Stephen R. Swofford, of Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Chicago, and David E. Jones, of Thomas & Hinshaw, Culbertson, of Peoria (Bruce L. Carmen, of counsel), for appellant.", "Ray Moss, of Ray Moss & Associates, of Clinton, for appellee." ], "corrections": "", "head_matter": "LARRY W. REYNOLDS, Plaintiff-Appellee, v. WARREN E. DANZ, Indiv. and d/b/a Warren E. Danz, P.C., Defendant-Appellant.\nThird District\nNo. 3\u201488\u20140065\nOpinion filed August 8, 1988.\nStephen R. Swofford, of Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Chicago, and David E. Jones, of Thomas & Hinshaw, Culbertson, of Peoria (Bruce L. Carmen, of counsel), for appellant.\nRay Moss, of Ray Moss & Associates, of Clinton, for appellee." }, "file_name": "0907-01", "first_page_order": 929, "last_page_order": 937 }