Injurious Practices as a Defense in Illinois Workers’ Compensation Claims

February 2025

Andrea M. Carlson

What is an Injurious Practice under the Illinois Workers’ Compensation Act? Can injurious practices be used as a defense against indemnity and medical benefits? The good news is that Section 19(d) of the Act addresses both questions. However, identifying and mounting a successful defense based on Section 19(d) involves digging further into the specific facts of a claim and applicable case law.

To start, the text of Section 19(d) of both the Illinois Workers’ Compensation Act and Illinois Workers' Occupational Diseases Act states:

“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 of any such injured employee. However, when an employer and employee so agree in writing, the foregoing provision shall not be construed to authorize the reduction or suspension of compensation of an employee who is relying in good faith, on treatment by prayer or spiritual means alone, in accordance with the tenets and practice of a recognized church or religious denomination, by a duly accredited practitioner thereof.”

820 ILCS 305/19(d), 310/19(d).

The relevant inquiry is the reasonableness of an employee's conduct with respect to securing medical, surgical or hospital treatment. Generally, employees will not be denied compensation even though their neglect of proper treatment caused a minor injury to develop into a serious disability, if such conduct was not unreasonable under the circumstances. This principle was pronounced in the case of Superior Coal Co. v. Industrial Commission, 326 Ill. 584, 158 N.E. 209, 54 A.L.R. 634 (1927).

Superior Coal Co. addressed the case of a coal miner who sustained debris in his eye while operating a machine, leading to inflammation. He initially treated his eye with some eye drops that he secured from his son. However, the drops were partially evaporated which resulted in crystal formation. The crystals further irritated the coal miner’s eyes. Respondent alleged that the employee engaged in injurious practices by utilizing the partially evaporated eye drops. The Court found that it would be acting on remote and improbable possibilities to conclude that the employee voluntarily put harmful crystals into his eye, resulting in additional irritation to the eye. The Court found it reasonable that the employee would use eyedrops for irritated eyes and he could not foresee that there would be crystals resulting in further damage. Therefore, the employee’s actions were not considered an injurious practice under the Act.

The courts have addressed Section 19(d) in modern cases and various contexts. In cases where the Commission has found that the employee engaged in injurious practices, Section 19(d) has been applied to reduce PPD benefits, suspend TTD benefits, and/or deny prospective medical treatment.

Refusal of Surgery

In some claims, a surgical procedure may be recommended to help relieve the employee of ongoing pain and physical limitations due to a work injury. However, an employee may refuse to undergo the surgery even with the probability that surgery will improve the employee’s condition, and ultimately the employee’s physical capabilities. In the case of Rockford Clutch Division, Borg-Warner Corp. v. Industrial Commission, 34 Ill.2d 240, 215 N.E.2d 209 (1966), the employee refused to submit to a laminectomy even though several doctors had recommended it, and the employer agreed to pay for the procedure. The court held that “where the operation tendered is of a major character and attended with serious risk to life or member, an injured employee’s refusal to submit thereto is not unreasonable and compensation should not be denied on that account.”

Even though an employee’s acceptance of surgery could mitigate an employer’s exposure for permanent partial disability or permanent total disability, ultimately the employee has the freedom of choice to refuse the surgery “within the bounds of reason.” In the subsequent case of Keystone Steel Wire Co. v. Ind. Com, 72 Ill. 2d 474, 381 N.E.2d 672 (Ill. 1978), the Illinois Supreme Court held that an employee’s refusal to undergo hernia repair surgery due to his fear of the procedure was not a bar to permanent total disability benefits. The employee was evaluated by a mental health professional who confirmed that the employee was of sound mind in his choice to refuse surgery. Because the employee did not undergo the procedure, he was unable to return to his prior position of a janitor due to the physical demands of the position. As a result, PTD benefits were awarded to the employee.

The above cases reaffirm the principle that benefits cannot be denied or reduced if rejection of a surgical procedure is based on a good faith and reason. In these cases, the risks versus benefits of the proposed procedure should be considered as well as the basis for the employee’s refusal. Ultimately the employee’s freedom of choice regarding medical procedures will be considered carefully by the Commission and any reviewing court.

Alcohol Use

Alcohol abuse which impairs treatment for the work injury by an employee can be considered an injurious practice under the Act. The Commission addressed alcohol use as an alleged injurious practice in the case of Cedillo v. Four Seasons Heating-Cooling, No. 03 WC 61117, 2009 WL 1064563, 09 I.W.C.C. 0290 (Mar. 26, 2009). In this case, The Arbitrator found that the employee engaged in injurious practices per Section 19(d) of the Act as of April 28, 2005, when the treating physician ceased treatment because of alcohol abuse. As a result, TTD benefits were suspended as of the last date of treatment. The treating physician noted in his medical records that the employee smelled of alcohol during his visit, and that he could provide no further treatment for the work injury until the employee addressed his alcohol addiction.

Obesity/Weight Loss

Failure to lose weight does not, per se, constitute injurious practice. See, Pignon v. Trumpf Inc., No. 02 WC 058197, 2007 WL 891352, 07 I.W.C.C. 0184 (Feb. 26, 2007). However, when a weight loss program is offered by Respondent and the employee is non-compliant, this may be basis for a denial or reduction of benefits under Section 19(d) of the Act.

In Pignon, Respondent alleged that the employee’s weight and his failure to lose weight, when advised by his treating physicians to lose weight, constituted insanitary or injurious practices. Employee was employed as a Punch/Brake Field Service Engineer to install and service sheet metal fabricating machines. Notably, he passed a pre-employment physical five years before the accident when he weighed 360 lbs. The employee could perform his job prior to his accident while weighing 450 lbs. The employee testified that he injured his low back when he was attempting to put his 70 lb. toolbox into the trunk of a rental car. As a result, he felt an immediate onset of low back pain which dropped him to his knees. After the accident involving his low back, the employee complied with all diagnostic medical testing. Two treating physicians related his back symptoms to the work accident. In addition, the employee underwent extensive physical therapy for his left knee and low back.

After the injury, the employee testified that he was inactive due to back pain. When his symptoms continued after completing physical therapy, his treating physician suggested bariatric surgery. The employee attempted to have the procedure authorized through his group health plan without success. The Commission found that Respondent did not offer the employee any weight loss plan, recommend a weight loss plan, nor did it agree to pay for any weight loss plan or treatment including the bariatric surgery. The Commission affirmed a trial award of PTD benefits and did not find that the employee engaged in injurious practices.

Obesity was also addressed in the subsequent case of Hatten v. Illinois Workers' Comp. Comm'n (Wal-Mart Assocs., Inc.), 2018 IL App (5th) 160234WC-U (Rule 23 Opinion). However, the Commission reached a different finding as compared to the Pignon case. The employee in Hatten sustained an injury to her low back. She treated with an orthopedic surgeon who recommended lumbar surgery but declined to perform the surgery same because of her obesity. Her treating physician referred her to an internist to complete a weight management program. Over the course of months, the treatment records reflected that both her orthopedic surgeon and internist found her to be noncompliant with the recommended weight loss treatment. In fact, the employee gained weight during this period.

Unable to undergo the surgery, the employee was placed at MMI following an FCE. The employee sought an odd lot permanent total disability award at trial. The Arbitrator found the employee’s non-compliance an injurious practice under Section 19(d) and awarded 25% under loss of person as a whole. The Commission reduced the PPD award to 15% loss of use on appeal. The Appellate court affirmed the decision of the Commission.

Unlike the Pignon case, the record in Hatten supported repeated non-compliance with the weight management program prescribed and ultimately the Appellate Court affirmed the Commission’s discretion to apply 19(d) to reduce PPD benefits based on the evidence submitted. The Hatten case highlights the importance of identifying instances of non-compliance in the treatment records in order to successfully utilize Section 19(d) as a basis to reduce PPD benefits.

Smoking

Smoking has been held to be neither an intervening cause nor an injurious practice, notwithstanding medical testimony that cigarette smoking was the cause for a failed medical procedure or healing. The specific issue of smoking was addressed in the case of Global Products v. Workers’ Compensation Commission, 392 Ill.App.3d408, 911 N.E.2d 1042 (1st Dist. 2009).

In Global Products, the employee injured his lower back while working as a laborer. Following failure of conservative treatment, the employee underwent a lumbar surgery. Even after the surgery, the employee reported ongoing complaints and ultimately underwent a second procedure, a lumbar fusion.

Notably, the employee smoked cigarettes both before and following his injury despite being advised by his treating physician and Respondent’s Independent Medical Examiner (IME) to cease smoking. The IME physician even opined that the employee’s smoking resulted in the failure of his first spinal fusion. A third surgery was recommended by the treating physician. Respondent refused to authorize the third procedure due to the employee’s continued smoking. The Commission found that employee’s smoking of cigarettes was not a reasonable basis upon which to deny the recommended third surgery recommended and awarded medical expenses, TTD, penalties and fees.

On appeal, the court affirmed the conclusion that smoking was not an intervening behavior which broke the causal chain between the employee’s accident and his condition of ill-being. Furthermore, the Court found that there was no evidence in the record to support a finding that the employee smoked cigarettes with the purpose of impeding his recovery. It was also noted in the opinion that the employee had made unsuccessful attempts to quit smoking, and it is commonly accepted by the medical community that smoking is an addiction. However, the Court found the Commission’s decision to award penalties and fees was an abuse of discretion, and Respondent’s reliance on its IME opinion was reasonable.

Active hinderance of recovery

There is also the rare circumstance of an injured employee actively working to impede her own recovery. Where the evidence reflects that a claimant is actively hindering his recovery, there is a strong basis to argue for a denial or reduction of benefits under Section 19(d). This scenario was addressed in the case of Gallego v. Industrial Com'n of Illinois, 168 Ill. App. 3d 259, 119 Ill. Dec. 30, 522 N.E.2d 692 (1st Dist. 1988). The employee in this case was working on a bus and standing in a pit full of oil and fuel to change a power steering filter, he slipped while climbing the pit stairs and struck the right side of his body on the ground, cutting his right hand on an oil drain. He eventually underwent surgery to the hand. When his treating physician suggested that he could return to work, the employee continued to complain of pain and swelling.

The employee’s treating doctor noted constriction marks during a follow up examination. The employee was in fact binding his arm which in turn interrupted blood flow and produced swelling of the affected hand. Multiple doctors (including his treating physician) opined that the cause of claimant's regression was due to repeated reinjury and from something being wrapped around his arm very tightly to cut off his circulation. As such, the Court found that the employee was engaging in an injurious practice.

Ultimately, a successful application of Section 19(d) to suspend or mitigate benefits under the Act is a heavily fact specific task. If there is any concern that an injured employee is engaging in injurious practices, the medical records should be reviewed carefully to confirm compliance with physician recommendations and any ongoing pattern of ignoring medical advice by the employee. It may also be beneficial for the IME physician to review the treatment records and specifically address any hindrance of recovery based on the employee’s behavior, actions, or lack thereof. Of course, if the medical evidence demonstrates a purposeful effort to sabotage or hinder recovery by the employee, a strong argument can be made that benefits should be ceased or mitigated under Section 19(d) of the Act.