Marque Medicos Archer, LLC v. Liberty Mutual Insurance Co. , 2018 IL App (1st) 163350 ( 2019 )

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Appellate Court Date: 2018.12.28
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Marque Medicos Archer, LLC v. Liberty Mutual Insurance Co.,
2018 IL App (1st) 163350
Appellate Court MARQUE MEDICOS ARCHER, LLC, and MEDICOS PAIN &
Caption SURGICAL SPECIALISTS, S.C., Plaintiffs-Appellants, v.
LIBERTY MUTUAL INSURANCE COMPANY and MORSE
AUTOMOTIVE CORPORATION, Defendants-Appellees.
District & No. First District, Second Division
Docket No. 1-16-3350
Filed June 26, 2018
Decision Under Appeal from the Circuit Court of Cook County, No. 13-L-13456; the
Review Hon. Patrick J. Sherlock, Judge, presiding.
Judgment Affirmed.
Counsel on Alan J. Mandel and Antonio D. Flores, of Alan J. Mandel, Ltd., of
Appeal Skokie, for appellants.
John F. Boyle and Cathleen M. Hobson, of Law Offices of Meachum,
Boyle & Trafman, of Chicago, for appellees.
Panel PRESIDING JUSTICE MASON delivered the judgment of the court,
with opinion.
Justices Pucinski and Hyman concurred in the judgment and opinion.
OPINION
¶1 This case arises out of defendant-appellant Liberty Mutual Insurance Company’s (Liberty)
alleged failure to fully pay plaintiffs-appellees, Marque Medicos Archer, LLC, and Medicos
Pain & Surgical Specialists, S.C. (collectively, the providers), for services they rendered to an
injured employee of codefendant-appellant, Morse Automotive Corporation (Morse
Automotive).1 The trial court dismissed with prejudice the providers’ claims for breach of
contract and violation of section 8.2(d)(3) of the Workers’ Compensation Act (Act) (820 ILCS
305/8.2(d)(3) (West 2012)) against Liberty and violation of the Consumer Fraud and
Deceptive Business Practices Act (Consumer Fraud Act) (815 ILCS 505/1 et seq. (West
2012)) against both defendants, and the providers appeal. Because we conclude that the
providers have no direct cause of action against Liberty for its delay in paying medical bills,
we affirm.
¶2 BACKGROUND
¶3 The providers first filed suit against Liberty and Morse Automotive on November 15,
2013. In their second amended complaint, at issue here, they alleged that between August 29,
2009, and November 17, 2011, they treated Ernesto Martinez for injuries he suffered while
employed by Morse Automotive. At the outset of Martinez’s treatment, he authorized payment
to be made directly to the providers for insurance benefits payable to him. The providers billed
Morse Automotive for the services they rendered to Martinez by submitting claims to Liberty,
who issued Morse Automotive’s workers’ compensation insurance policy. The medical
providers alleged that Liberty was the disclosed agent for Morse Automotive.
¶4 The providers alleged that all workers’ compensation policies issued in Illinois include a
promise by the insurer to pay “promptly” the benefits required of the employer under the Act
as well as “interest on a judgment as required by law until [the insurer] offer[s] the amount due
under this insurance.” All policies further include a provision that the insurer is “directly and
primarily liable to any person entitled to the benefits payable by this insurance,” and those
persons “may enforce our duties *** against us or against [the employer] and us.”
¶5 Notwithstanding this policy language, the complaint alleged that Liberty failed to promptly
pay bills for medical services rendered to Martinez or, to a large extent, at all. The providers
alleged that a market conduct examination conducted by the Illinois Department of Insurance
in 2013 of Liberty’s claim payment history between July 1, 2011, to June 30, 2012, found that
Liberty failed to pay interest on adequately documented medical provider bills not paid within
30 days of receipt and was in violation of section 8.2(d)(3) of the Act.
¶6 As a result of the market conduct examination, on December 12, 2013, Liberty entered into
a stipulation and consent order in which it warranted to the Department of Insurance in relevant
part that it would “[i]nstitute and maintain procedures whereby [Liberty] pays interest on
1
This case is related to Marque Medicos Farnsworth, LLC v. Liberty Mutual Insurance Co., 2018
IL App (1st) 163351, also decided today, in which Marque Medicos Farnsworth and Medicos Pain &
Surgical Specialists, S.C., alleged that Liberty failed to fully pay for services the providers rendered to
an injured employee of a different corporation. Because the causes of action asserted by the providers
and dismissed by the trial court are not identical and because the parties did not move to consolidate the
cases, we decide them separately.
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adequately documented health care provider bills not paid within thirty (30) days of receipt as
required by 820 ILCS 305/8.2(d)(3).”
¶7 In the meantime, in September 2009, Martinez timely filed a claim before the Illinois
Workers’ Compensation Commission (IWCC) for disability benefits and medical expenses. A
little over two years later, on December 14, 2011, Martinez entered into a settlement agreement
with Morse Automotive. The settlement agreement names Martinez as petitioner, Morse
Automotive as respondent, and Liberty as “[r]espondent’s insurance or service company.” The
terms of the settlement provided that respondent would pay petitioner $163,000 in a lump sum
for “full and final settlement of all claims for benefits past, present and future based on injuries
arising out of an accident on or about August 4, 2009”; the lump sum included $41,751 for
future medical expenses. The settlement further provided “[r]espondent will pay all necessary
and related medical expenses pursuant to the fee schedule or negotiated rate, whichever is less,
that have been submitted to [r]espondent prior to contract approval and that contain all the
required data elements necessary to adjudicate the bills pursuant to Section 8.2(d).” The
settlement agreement was silent on the amount of medical bills outstanding as of the date of its
execution. The complaint did not allege, and the record does not disclose, that prior to the
settlement, Liberty ever took the position that all or any portion of the medical expenses
reflected in the bills sent to it were not necessary or related to Martinez’s injuries or that the
documentation in the bills was insufficient.
¶8 As of the date of the settlement agreement, neither Morse nor Liberty had paid any of the
providers’ bills, but approximately six months after the settlement was approved by the IWCC,
Liberty made partial payments to the providers for bills it received between 2009 and 2011.
Approximately $39,000 in bills is still outstanding. And as of the date of the complaint, over
$36,000 of interest had accrued on the unpaid bills as well as the bills paid after the statutory
grace period had elapsed.
¶9 On June 5, 2014, Martinez executed a specific assignment in favor of the providers to
pursue any and all of his rights and claims arising out of the settlement agreement.
¶ 10 Based on these allegations, the second amended complaint alleged four counts against both
defendants: (1) breach of contract (based on the settlement agreement), (2) breach of contract
implied in fact (in the alternative), (3) violation of section 8.2(d)(3) of the Act (820 ILCS
305/8.2(d)(3) (West 2012)), and (4) violation of the Consumer Fraud Act (815 ILCS 505/1
et seq. (West 2012)); one count was alleged only against Liberty, namely, violation of section
155 of the Illinois Insurance Code (215 ILCS 5/155 (West 2012)).
¶ 11 The defendants filed a motion to dismiss the complaint pursuant to section 2-615 of the
Code of Civil Procedure (735 ILCS 5/2-615 (West 2012)). Ultimately, the trial court dismissed
with prejudice the providers’ claims for (1) breach of contract against Liberty based on the fact
that the providers failed to allege that Liberty was a party to the settlement agreement, (2)
violation of section 8.2(d) of the Act against Liberty only, and (3) violation of the Consumer
Fraud Act against both defendants. The providers voluntarily dismissed their remaining claims
(with leave to reinstate) to pursue this appeal.
¶ 12 ANALYSIS
¶ 13 A motion to dismiss under section 2-615 challenges the legal sufficiency of the complaint
based on defects apparent on its face. Simpkins v. CSX Transportation, Inc., 2012 IL 110662,
¶ 13. We must construe the allegations of the complaint in the light most favorable to the
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plaintiff and determine whether they state a cause of action upon which relief can be granted.
Bogenberger v. Pi Kappa Alpha Corp., 2018 IL 120051, ¶ 23. In making this determination, all
well-pleaded facts, and all reasonable inferences drawn from those facts, are taken as true.
Ferris, Thompson & Zweig, Ltd. v. Esposito, 2017 IL 121297, ¶ 5. Dismissal is appropriate
only where it is apparent that no set of facts can be proven that would permit the plaintiff to
recover. Cochran v. Securitas Security Services, USA, Inc., 2017 IL 121200, ¶ 11. We review a
trial court’s dismissal under section 2-615 de novo. Id.
¶ 14 Turning first to the breach of contract theory, the providers allege that they are intended
third-party beneficiaries of the settlement agreement and that Liberty and Morse Automotive’s
failure to pay them the amount due amounted to a breach of that settlement agreement. The
trial court agreed that the providers were third-party beneficiaries of the agreement and found
that the complaint stated a cause of action against Morse Automotive but dismissed this count
against Liberty based on its finding that the latter was not a party to the settlement agreement.
¶ 15 We agree that the providers failed to allege that Liberty was a party to the settlement
agreement in the first instance. On its face, the agreement (attached as an exhibit to the
complaint), names Martinez as the petitioner and Morse Automotive as the respondent. In their
opening brief, the providers claim that the agreement was signed by an attorney for Liberty
rather than for Morse Automotive, but this allegation is not found in the complaint. Likewise,
the providers allege on appeal that the workers’ compensation policy “expressly prohibits”
Morse Automotive from making payments under the Act but again fail to make this allegation
in the complaint, nor do they attach the policy to the complaint, which prohibits us from
considering it. See Lake Point Tower Condominium Ass’n v. Waller, 2017 IL App (1st)
162072, ¶ 10 (“[C]ourts may not rely on matters outside the complaint in considering a section
2-615 motion.”).
¶ 16 To be sure, the agreement names Liberty as “respondent’s insurance or service company”
and Liberty—not respondent—made partial payments to the providers. The providers argue
that the payments are particularly significant, citing Yellow Book Sales & Distribution Co. v.
Feldman, 2012 IL App (1st) 120069, ¶¶ 38-39, for the proposition that a disclosed agent’s
demonstration of its willingness to pay the principal’s obligation renders it directly liable for
those obligations. But Yellow Book does not so hold. There, the agent executed the contract on
behalf of the disclosed principal but argued that he was not personally liable. Id. ¶ 34. This
court noted that an intent to be personally liable need not be expressed, but can be inferred
from the facts in evidence. Id. ¶¶ 38-39. Here, there is no allegation in the complaint that
Liberty signed the settlement agreement on behalf of Morse Automotive, thus distinguishing
this case from Yellow Book. Ultimately, there are insufficient allegations to establish that
Liberty is a party to the agreement. And without these allegations, we agree with the trial court
that the providers have not stated a cause of action against Liberty for breach of contract.
¶ 17 The providers next challenge the dismissal of count III, which alleges a violation of section
8.2(d)(3) of the Act, requiring an employer who fails to pay a provider within 30 days of
receipt of a bill that contains substantially all of the necessary requirements to adjudicate it to
pay interest of 1% per month to that provider. 820 ILCS 305/8.2(d)(3) (West 2012). The
providers do not dispute that this section does not expressly provide for a private right of action
but argue that a private right of action is implied. We rejected this identical argument in
Marque Medicos Fullerton, LLC v. Zurich American Insurance Co., 2017 IL App (1st)
160756, ¶¶ 56-61, and we decline to depart from this decision today.
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¶ 18 In order to determine whether a statute implies a private right of action, we must consider
whether (1) the plaintiff is a member of the class that the statute is intended to benefit, (2) the
plaintiff’s injury is one the statute was designed to prevent, (3) a private right of action is
consistent with the underlying purpose of the statute, and (4) implying a private right of action
is necessary to provide an adequate remedy for statutory violations. Fisher v. Lexington Health
Care, Inc., 188 Ill. 2d 455, 460 (1999). With regard to the first factor, the providers argue that
because the payment obligation in section 8.2(d)(3) is to providers alone, they are members of
the class the statute is intended to benefit. But the court in Zurich disagreed, relying in part on
Fisher (Zurich, 2017 IL App (1st) 160756, ¶ 59 (citing Fisher, 188 Ill. 2d at 462-63)), which
we find dispositive.
¶ 19 In Fisher, two nursing home employees who had cooperated with an investigation into the
death of a nursing home resident sought to imply a private right of action for retaliatory
conduct under section 3-608 of the Nursing Home Care Act (210 ILCS 45/3-608 (West 1996)).
Fisher, 188 Ill. 2d at 456-58. Section 3-608 prohibits a nursing home facility or its agents from
discharging or retaliating against a resident, resident’s representative, or an employee who
testifies or reports misconduct under certain sections of that statute. 210 ILCS 45/3-608 (West
1996). The supreme court rejected the plaintiffs’ contention that this section implied a private
right of action, explicitly holding that, as nursing home employees, they were not part of the
class the statute was designed to protect. Fisher, 188 Ill. 2d at 463. In reaching this conclusion,
the court did not consider section 3-608 standing alone, but read the statute as a whole. Id. at
462-63. And as a whole, the court found the Nursing Home Care Act was not designed to
protect nursing home employees from retaliation for reporting misconduct. Id. at 463. Rather,
the statute’s “central purpose” was to protect nursing home residents, and section 3-608
merely served to advance that purpose. Id.
¶ 20 The same analysis governs here. The “fundamental purpose” of the Act is to “afford
protection to employees by providing them with prompt and equitable compensation for their
injuries.” (Emphasis added.) Kelsay v. Motorola, Inc., 74 Ill. 2d 172, 180-81 (1978). As Zurich
noted, the interest required to be paid to providers under section 8.2(d)(3) merely encourages
this prompt payment by penalizing delays in compensation. Zurich, 2017 IL App (1st) 160756,
¶ 60. In other words, the benefit to providers is incidental to the Act’s central purpose. Id.
Accordingly, we conclude that the providers are not members of the class the Act was intended
to benefit and, as such, are not entitled to pursue a private right of action under section
8.2(d)(3). See Abbasi v. Paraskevoulakos, 187 Ill. 2d 386, 393 (1999) (declining to analyze all
four factors where the plaintiff failed to satisfy one factor of the analysis).
¶ 21 The medical providers attempt to distinguish Zurich on the basis that this case involves a
settlement agreement and a market conduct examination that disclosed Liberty’s practice of
not paying interest on medical bills. But we fail to understand how these extraneous materials
bear on the question of whether section 8.2(d)(3) implies a private right of action. This is a
matter of statutory interpretation for which we cannot consider matters outside the statute.
¶ 22 Finally, we address the sufficiency of the providers’ claim under the Consumer Fraud Act.
This claim is premised on the validity of Martinez’s assignment of all his “right, title and
interest” in the settlement contract to the medical providers. Liberty argues that the Act forbids
this assignment, and we agree.
¶ 23 Section 21 of the Act provides:
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“No payment, claim, award or decision under this Act shall be assignable or subject to
any lien, attachment or garnishment, or be held liable in any way for any lien, debt,
penalty or damages, except the beneficiary or beneficiaries of a deceased employee
who was a member or annuitant under Article 14 of the ‘Illinois Pension Code’ may
assign any benefits payable under this Act to the State Employees’ Retirement
System.” 820 ILCS 305/21 (West 2012).
¶ 24 The medical providers do not dispute that the plain language of the Act prohibits
assignment of awards or decisions but maintain that the purpose of this prohibition is to protect
an injured worker from his creditors and not to prevent the injured worker from tasking a third
party with enforcing his rights to payment of benefits. In other words, the providers urge us to
find an implicit exception to the prohibition on assignment. But the rules of statutory
construction prohibit us from accepting the providers’ invitation.
¶ 25 Our supreme court has cautioned that we cannot construe a statute to add an exception
when none otherwise exists. In re Michael D., 2015 IL 119178, ¶ 9 (“It is never proper to
depart from plain language by reading into a statute exceptions *** which conflict with the
clearly expressed legislative intent.”). And it is a well-established canon of statutory
construction that where the statutory language expresses certain exceptions, it is construed as
an exclusion of any other exceptions. State v. Mikusch, 138 Ill. 2d 242, 250 (1990). This is the
case here. The Act excepts from its general prohibition against assignment those assignments
made by beneficiaries of certain deceased employees. It does not include an exception for an
injured worker to assign the enforcement of his rights to a third party.
¶ 26 But even assuming that the Act could be read to allow Martinez’s assignment of his rights
under the settlement contract, we nevertheless agree that the providers have not stated a claim
under the Consumer Fraud Act, which requires a plaintiff to plead (1) a deceptive act or
practice by the defendant, (2) the defendant’s intent that the plaintiff rely on the deception, and
(3) the occurrence of the deception during a course of conduct involving trade or commerce.
Robinson v. Toyota Motor Credit Corp., 201 Ill. 2d 403, 417 (2002).
¶ 27 Significantly, a deceptive act or practice “involves more than the mere fact that a defendant
promised something and then failed to do it,” given that this type of “deception” occurs every
time a defendant breaches a contract. (Internal quotation marks omitted.) Avery v. State Farm
Mutual Automobile Insurance Co., 216 Ill. 2d 100, 169 (2005). Indeed, “[w]ere *** courts to
accept plaintiff’s assertion that promises that go unfulfilled are actionable under the Consumer
Fraud Act, consumer plaintiffs could convert any suit for breach of contract into a consumer
fraud action.” (Internal quotation marks omitted.) Id. Stated differently, a breach of contract is
not tantamount to a violation of the Consumer Fraud Act, and we reject the providers’ attempt
to supplement their breach of contract claim with this “redundant remedy.” (Internal quotation
marks omitted.) Id.
¶ 28 The conclusion we reach today should not be construed to mean that we condone Liberty’s
conduct in failing to pay outstanding medical bills and interest as it is obligated to do under
both the Act and its insurance policy. Accepting the well-pleaded allegations of the providers’
complaint as true, Liberty’s conduct in (i) accepting Morse Automotive’s premiums under a
policy of insurance that renders it “directly and primarily liable” for benefits payable under the
Act, (ii) authorizing a settlement agreement that plainly contemplates payment of those
benefits, and (iii) claiming after the fact that no benefits are payable threatens the stability and
predictability of benefits the Act is designed to provide. See McMahan v. Industrial Comm’n,
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183 Ill. 2d 499, 514 (1998) (“The refusal of an employer to pay for an injured employee’s
medical expenses is as contrary to the purposes of the [Act] as an employer’s refusal to
compensate the employee for lost earnings. *** Indeed, to the extent that nonpayment of
medical expenses may imperil the employee’s ability to obtain future treatment, the
consequences of the employer’s actions may actually be far worse.”). Many employees, like
Martinez, accept a lump sum settlement to cover not only past medical care but also medical
care reasonably anticipated to be necessary in the future. But if a workers’ compensation
carrier can authorize a settlement whereby the employer undertakes to pay past due bills and
then fail to remit policy proceeds to cover that obligation, the pool of medical providers willing
to render services to patients suffering work-related injuries will necessarily diminish.
¶ 29 During oral argument, counsel for Liberty took the position that Morse Automotive’s
commitment in the settlement agreement “to pay all necessary and related medical expenses”
was essentially illusory. This is because Liberty, to whom all of the medical bills had been
submitted and who was obligated to “promptly” pay those bills, had not agreed that the
medical expenses incurred by Martinez were “necessary and related.” In other words, Liberty’s
position is that it may remain silent when medical bills are submitted directly to it, authorize its
policyholder to enter into a settlement whereby the policyholder undertakes to pay those
outstanding bills, and then leave both its policyholder and the injured worker on the hook for
unpaid bills after the fact.
¶ 30 We do not read the Act as giving Liberty the option to refrain from raising any issues
regarding the reasonableness of bills submitted to it until after its policyholder has, with its
approval, committed to pay them. Rather, the Act contemplates that when an insurer receives
bills allegedly relating to a work-related injury, the insurer will promptly raise any issues
regarding whether the services rendered were reasonable and related to the employee’s injury
or whether the detail in the bills is insufficient to make that determination. 820 ILCS
305/8.2(d) (West 2012). As far as the record here discloses, Liberty never raised any such
issues after receipt of bills from Marque Medicos.
¶ 31 Accepting the complaint’s allegations as true, as we must, such conduct appears to be a
textbook example of “vexatious and unreasonable” claims handling practices under section
155 of the Illinois Insurance Code (215 ILCS 5/155 (West 2012)). And the Director of
Insurance should pay close attention to whether Liberty is, in fact, living up to its obligations
under the stipulation and consent order. To that end, we are directing the clerk of the court to
send a copy of the opinion to the Director of Insurance.
¶ 32 But as egregious as Liberty’s conduct appears to be, it does not translate into recognition of
a direct action by providers against Liberty. Rather, when the legislature enacted section 8.2 of
the Act by amendment in 2011, it simultaneously created a remedy for its violation. In
particular, section 8.2(e-20) provides that after a final award by the IWCC, a provider may
resume efforts to collect unpaid bills from the employee and “the employee shall be
responsible for payment of any outstanding bills *** as well as the interest awarded under
subsection (d) of this Section.” 820 ILCS 305/8.2(e-20) (West 2012). At first blush, the ability
to pursue the injured employee for payment of outstanding medical bills appears to run counter
to the overarching purpose of the Act to protect the interests of injured workers. But the
legislature may well have assumed that an employee who receives an award from the IWCC is
the party responsible for paying outstanding medical bills from the award. When, as here, that
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is not the case, the methods of enforcing a workers’ compensation carrier’s obligation to pay
outstanding medical bills are varied and somewhat circuitous.
¶ 33 Under the Act, the IWCC lacks authority to enforce its own awards and decisions.
Millennium Knickerbocker Hotel v. Illinois Workers’ Compensation Comm’n, 2017 IL App
(1st) 161027WC, ¶ 21 (citing Smith v. Gen Co., 11 Ill. App. 3d 106, 110 (1973)). Therefore, in
order to enforce an employer’s obligation to pay an award, the employee must look elsewhere.
¶ 34 One possible scenario is that when the providers pursue payment of outstanding bills from
the employee, the employee, in an effort to enforce the IWCC award, can present a certified
copy of the award to the circuit court under section 19(g) of the Act (820 ILCS 305/19(g)
(West 2012)) in order to reduce the award to judgment. The employer, upon whom the
obligation to pay is imposed under the award (and the judgment entered on the award), can, in
turn, pursue a third-party action against its insurer for breach of the workers’ compensation
insurance policy and, presumably, for a violation of section 155 of the Insurance Code (215
ILCS 5/155 (West 2012)). If the circuit court finds that there has been a failure to pay the
employee in accordance with the IWCC award, section 19(g) further mandates an award of
attorney fees and costs incurred by the employee not only in the circuit court action, but also in
the proceedings before the IWCC.
“In a case where the employer refuses to pay compensation according to such final
award or such final decision upon which such judgment is entered the court shall in
entering judgment thereon, tax as costs *** the reasonable costs and attorney fees in the
arbitration proceedings and in the court entering the judgment for the person in whose
favor the judgment is entered ***.” (Emphasis added.) 820 ILCS 305/19(g) (West
2012).
And the fees and costs recovered by the employee as well as the employers’ own attorney fees
and costs would be compensable damages proximately caused by the insurer’s breach of
contract. In the end, the recalcitrant insurer would end up paying its own, its insured’s, and the
employee’s attorney fees and costs, plus whatever sums the court deemed appropriate under
section 155. 215 ILCS 5/155(1) (West 2012) (providing for an award of up to $60,000 in
addition to attorney fees and costs). Accordingly, the price of an insurer’s decision to stonewall
payment of benefits due under an IWCC award is, indeed, steep.
¶ 35 Alternatively, there are two provisions of the Act that provide for the award by the IWCC
of additional compensation to the employee in the case of nonpayment of benefits. First,
section 19(k) of the Act authorizes the employee to seek and the IWCC to award additional
compensation equal to 50% of the amount otherwise payable to the employee if the employer
vexatiously delays in paying benefits due under the Act. 820 ILCS 305/19(k) (West 2012). In
the event the IWCC determines that a penalty is appropriate under section 19(k), section 16 of
the Act further authorizes an award of attorney fees and costs “against such employer and his
or her insurance carrier.” (Emphasis added.) Id. § 16. Second, section 19(l) contemplates that
an employee may file a written demand for payment of benefits for necessary medical care
payable under section 8(a). Id. § 19(l) In the event of such written demand, the employer must
respond within 30 days, articulating in writing the reason for the delay. Section 19(l) further
provides:
“In case the employer or his or her insurance carrier shall without good and just cause
fail, neglect, refuse, or unreasonably delay the payment of benefits under Section 8(a)
***, the Arbitrator or the Commission shall allow to the employee additional
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compensation in the sum of $30 per day for each day that the benefits under Section
8(a) *** have been so withheld or refused, not to exceed $10,000.” (Emphasis added.)
Id.
¶ 36 What is common to all of these alternative courses of action is that they must be undertaken
by the employee for whose benefit these provisions were enacted. Which brings us to another,
less circuitous means of avoiding this problem in the future. Attorneys handling workers’
compensation cases on behalf of claimants must be cognizant of their clients’ potential
post-award exposure to claims by medical providers for unpaid bills. As noted, if, as happened
here (and apparently in a number of other cases involving Liberty), the employer does not
fulfill its undertaking to pay outstanding medical bills, providers are permitted to pursue
payment from the injured employee. With that in mind, competent counsel should insist that
any settlement agreement contain a sum certain that the employer has agreed to pay for
outstanding medical bills and also contain a representation that the employer has consulted
with its insurance carrier and secured the carrier’s commitment to pay that amount upon
execution of the settlement. The settlement here contained no such detail and merely provided
that Morse Automotive “will pay all necessary and related medical expenses *** that have
been submitted prior to contract approval and that contain all the required data elements.” This
lack of specificity permitted Liberty to “lay in the weeds” to the employee’s, the providers’
and, ultimately, its own policyholder’s detriment.
¶ 37 CONCLUSION
¶ 38 We affirm the trial court’s dismissal of the providers’ claims for breach of contract,
violation of section 8.2(d)(3) of the Act against Liberty, and violation of the Consumer Fraud
Act against both defendants. We further order the clerk of the court to send a copy of this
opinion to the Director of Insurance.
¶ 39 Affirmed.
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