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Hollywood Casino-Aurora, Inc v. the Illinois Workers' Compensation Commission et al.

March 16, 2012


Appeal from the Circuit Court of Kane County Honorable Thomas E. Mueller, Judge, Presiding. No. 10-MR-513

The opinion of the court was delivered by: Justice Hoffman

JUSTICE HOFFMAN delivered the judgment of the court, with opinion.

Presiding Justice McCullough and Justice Hudson concurred in the judgment and opinion. Justice Holdridge dissented, with opinion.

Justice Stewart dissented, with opinion, joined by Justice Holdridge.


¶ 1 The claimant, Gill Vierickl-Iverson, appeals from an order of the circuit court of Kane County which reversed a decision of the Illinois Workers' Compensation Commission (Commission) that awarded her $40,750 in penalties against her employer, Hollywood Casino-Aurora, Inc. (Hollywood), pursuant to section 19(k) of the Workers' Compensation Act (Act) (820 ILCS 305/19(k) (West 2006)). For the reasons which follow, we affirm the circuit court.

¶ 2 The claimant was employed by Hollywood as a cocktail waitress. On January 1, 1999, she suffered a crushing injury to her right foot while working. The claimant was diagnosed with reflex dystrophy of the right foot and leg. She was treated by Dr. Timothy Lubenow on referral from Hollywood's nurse case manager. During the course of his treatment, Dr. Lubenow implanted a spinal cord stimulator in the claimant.

¶ 3 The claimant filed an application for adjustment of claim pursuant to the Act (820 ILCS 305/1 et seq. (West 1998)), seeking benefits for the injuries she sustained on January 1, 1999. Following a hearing, the arbitrator issued a decision on November 19, 2004, awarding the claimant 147 weeks of temporary total disability (TTD) benefits, 75 weeks of permanent partial disability (PPD) benefits under section 8(d)(2) of the Act (820 ILCS 305/8(d)(2) (West 2002)) for a 15% loss of a person as a whole, and 69.75 weeks of PPD benefits under section 8(e) of the Act (820 ILCS 305/8(e) (West 2002)) for a 45% loss of use of her right foot. In addition, Hollywood was ordered to pay for the reasonable and necessary medical expenses incurred by the claimant, including the cost of the spinal cord stimulator. Neither party sought a review of the arbitrator's decision, and as a consequence, it became the decision of the Commission. 820 ILCS 305/19(b) (West 2002).

¶ 4 Following the decision awarding her benefits, the claimant continued under the care of Dr. Lubenow. On December 22, 2006, Dr. Lubenow sent a letter to Paula Williams, a claims adjuster employed by Hollywood's workers' compensation insurance carrier. The letter stated that the claimant had "responded favorably" to the spinal cord stimulator, but that there were signs indicating that the stimulator's battery was nearing the end of its life and would likely need replacement "within the first quarter of 2007." In addition, the letter stated:

"The hospital cost for replacing the pulse generator battery, including battery recharger, is $77,000. In addition, there will be a physician implanting charge of approximately $3,500 and an anesthesiologist charge of $1,000, if the procedure is done at Rush University Medical Center Hospital. If the authorization is granted to proceed in the Rush Surgicenter, the cost of replacing it would be the same for the physician fees, but the facility fees would be less in the Surgicenter compared with Rush Hospital."

Dr. Lubenow concluded the letter by requesting that Williams contact him if she had "any additional questions." Williams received the letter on January 9, 2007, but never contacted Dr. Lubenow with any questions. Williams testified that Dr. Lubenow's letter led her to believe that the procedure would be scheduled at some time in the future, but was not imminent. She stated that she did not interpret the letter as requesting authorization for the procedure, but only a statement that the procedure was under consideration.

¶ 5 In May 2007, the battery in the claimant's spinal cord stimulator ceased to function, and Dr. Lubenow scheduled battery replacement surgery to take place that month. Dr. Lubenow's office contacted Williams and requested authorization for the procedure. Williams spoke with Renata at Dr. Lubenow's office on May 8, 2007, and again on May 10, 2007. She advised Renata that she needed a report from Dr. Lubenow explaining the medical necessity for the procedure, and she inquired whether the procedure could be performed at a surgical center rather than a hospital. In addition Williams requested copies of Dr. Lubenow's records.

¶ 6 On June 18, 2007, Renata sent a facsimile correspondence to Williams from Dr. Lubenow setting forth the medical necessity for the procedure and requesting authorization for the surgery which had been rescheduled for July 9, 2007. Attached to the correspondence were copies of the claimant's medical records covering the period from September 2005 through 2006, and another copy of Dr. Lubenow's letter of December 22, 2006.

ΒΆ 7 On August 2, 2007, the claimant filed a petition with the Commission, requesting that penalties and attorney fees be assessed against Hollywood for failure of its insurance carrier to authorize the battery replacement procedure despite repeated demands and for failure to authorize payment for prescribed medications. On August 15, ...

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