Failure to Quit Smoking Defense: Disability Benefits and 3rd Surgery Awarded

6-14-09

Smoking alert. In a recent case, a smoker was denied disability benefits and denied a new surgery by his employer because he could not quit smoking following his low back surgery. While the current social and political consensus is that tobacco smoking is evil, bad and harmful, Illinois has yet to make it a criminal activity sufficient to deny workers' compensation benefits.

In Global Products (1st Dist. June 9, 2009) the IME defense doctor blamed a failed back fusion on smoking. Based upon the IME opinion, the employer denied temporary disability benefits and denied a proposed 3rd lumbar surgery. The arbitrator and the Illinois Workers Compensation Commission disagreed and awarded a full 6 years of temporary disability benefits, a third lumbar fusion surgery and awarded penalties and attorneys fees for the unreasonable denial of benefits.

Smoking or obesity are not yet in and of themselves a legitimate reason for an employer to deny surgery or to deny disability benefits in Illinois. That did not stop the employer in Global from arguing that smoking was a form of "injurious practices" under Section 19(d) of the Illinois Workers Compensation Act. The employer argued that continued smoking was a deliberate intentional act undertaken to retard the medical recovery.

The doctors agreed that there is an increased risk of fusion failure in smokers. Smokers are well advised to quit smoking to increase their healing, decrease their recovery time and increase their chances for a successful back fusion. It is clear that the doctors did advise the injured worker to quit smoking. The law is also clear that "If any employee shall persist in insanitary or injurious practices which tend to either imperil or retard his recovery or shall refuse to submit to such medical, surgical, or hospital treatment as is reasonably essential to promote his recovery, the Commission may, in its discretion, reduce or suspend the compensation. 820 ILCS 305/19(d)

There was no evidence that the worker had deliberately attempted to impair his recovery. In fact, the injured worker did make an unsuccessful attempt to quit smoking. Anyone who has tried to quit smoking knows that it is not an easy proposition.

Our Appellate Court found that the employer could "reasonably rely" upon the IME opinion blaming a failure to quit smoking in cutting off benefits and so they denied the award of penalties and attorneys fees.

What is our court saying ?? That the law did not support the employer's denial of benefits based upon a failure to quit smoking but that the "smoker defense" was reasonable enough to avoid penalties and attorneys fees. Was the court creating a new defense sufficient to tie up benefits without the imposition of penalties and fees for improperly delayed benefits?? Is this the message or are they really emphasizing that reliance on an employer's IME opinion will avoid penalties?? Are obesity and diabetes the next "reasonable defenses" sufficient to deny benefits since they are also conditions allegedly within the worker's control that impair and prolong recovery as long as the IME doctor blames these two known risk factors for a delay in recovery?? In our view, probably not. Obesity and diabetes are much harder to control.

See: Larson's Workers' Compensation Law § 10.10 Refusal of Reasonable Treatment: an unreasonable refusal to follow medical instructions will usually lead to a loss of disability benefits attributable to the refusal but, when the recommended treatment involves things like weight loss reduction .... the courts have generally been far less stern, ... (the courts) are reluctant to stigmatize human failures as a ''willful refusal.'' Here, as in the case of (refusing surgery), the test of reasonableness of the worker's refusal applies.

Although an employer's reliance upon a medical opinion will generally avoid penalties, here, that medical opinion did not support an existing defense to the payment of compensation under Illinois law. The Court held that failure to quit smoking does not constitute an intervening act breaking the chain of medical causation nor does it constitute a willful, intentional and deliberate interference with recovery.

I agree with the dissent that denying workers compensation disability benefits without an existing legal basis is unreasonable and it should generally lead to an award of penalties against the employer.

To review workers compensation benefits and existing defenses contact our Chicago workers compensation attorneys.

Chicago Workers Compensation Attorney -- 6-14-09