Where a doctor's opinion regarding the permanency of a worker's condition is based on the worker's inability to undergo surgical intervention due to the employer's failure to provide authorization, then the worker has not yet reached maximum medical improvement.
On November 24, 2000 the employee was severely injured when he fell from a broken chair and landed on a concrete floor. An MRI of the thoracic spine confirmed a herniated disk with spinal cord encroachment and displacement. The arbitrator awarded 238 weeks of temporary total disability benefits from Dec. 5, 2000 through June 30, 2005, permanent total disability benefits, medical expenses and penalties and fees pursuant to Sections 19(k), 19(l) and 16. Upon review the Illinois Workers' Compensation Commission modified the arbitrator's decision by vacating the permanency award and extending the award for temporary total disability through March 7, 2007, the date of the hearing. The arbitrator awarded TTD through June 20, 2005, the date the treating doctor opined that the claimant was permanently and totally disabled from returning to work. However, the Commission noted that the employer refused to authorize recommended fusion surgery for the claimant. On March 10, 2005, a shoulder specialist recommended right shoulder arthroscopic surgery, but again the employer would not approve the surgery. The treating doctor's opinion as to the permanent nature of the employee's condition was based on the employee's inability to undergo surgical intervention due to the employer's failure to provide authorization. Because surgical intervention is still pending, the Illinois Workers' Compensaiton Commission found that the employee has not yet reached maximum medical improvement. Therefore, the employee was entitled to 326 weeks of temporary total disability benefits, through the date of the hearing.
Furthermore, the record was clear that the intention of the parties was to try this case pursuant to Section 19(b) of the WCA. The parties did not list nature and extent as one of the issues in dispute and therefore were not prepared to argue nature and extent of the employee's disability. Based on the lack of notice and potential prejudice, the Illinois Workers' Compensation Commission vacated the arbitrator's permanency award.
