Appeal from the Circuit Court of La Salle County. No. 11-MR-31 Honorable R.J. Lannon, Jr., Judge, Presiding.
The opinion of the court was delivered by: Justice Hudson
2012 IL App (3d) 110907WC
JUSTICE HUDSON delivered the judgment of the court, with opinion.
Presiding Justice Holdridge and Justices Hoffman and Stewart concurred in the judgment and opinion.
Justice Turner specially concurred in part and dissented in part, with opinion.
¶ 1 Claimant, Linda Dye, filed an application for adjustment of claim pursuant to the Workers' Compensation Act (Act) (820 ILCS 305/1 et seq. (West 2006)) seeking benefits for injuries she allegedly sustained while in the employ of respondent, Plymouth Tube. Following a hearing pursuant to section 19(b) of the Act (820 ILCS 305/19(b) (West 2006)), the arbitrator determined that claimant's current condition of ill-being is causally related to her employment. However, he denied her claim for prospective cosmetic medical care (see 820 ILCS 305/8(a) (West 2006)) and her request that penalties, additional compensation, and attorney fees be assessed against respondent (see 820 ILCS 305/16, 19(k), 19(l) (West 2006)). The Illinois Workers' Compensation Commission (Commission) affirmed these findings, and the circuit court of La Salle County confirmed the decision of the Commission. On appeal, claimant insists that the Commission's decision to deny authorization for prospective cosmetic medical care as well as its decision to deny the imposition of penalties, additional compensation, and attorney fees are against the manifest weight of the evidence. For the reasons which follow, we reverse the Commission's denial of prospective cosmetic medical care, but affirm the denial of penalties, additional compensation, and attorney fees, and remand the matter for further proceedings in accordance with Thomas v. Industrial Comm'n, 78 Ill. 2d 327 (1980).
¶ 3 The following factual recitation is taken from the evidence presented at the arbitration hearing held on April 30, 2010, as well as the record on appeal. Claimant began working for respondent in June 1978. In January 2007, claimant's position was that of a furnace operator. Claimant suffered an undisputed work injury on January 27, 2007, when a steel cylinder struck her right temple as she was attempting to hook the cylinder to an air hose. Shortly after the accident, claimant was taken to St. Mary's Hospital. Hospital records note an abrasion to the right side of claimant's forehead. However, a CT scan of the brain was normal and showed no evidence of a skull fracture. Claimant was diagnosed with closed head trauma, a concussion, and an abrasion to the forehead. She was instructed to remain off work for two days and to seek follow-up treatment.
On January 29, 2007, claimant was examined by Dr. Amit Garg of Parkview Family Practice. Dr. Amit Garg noted that claimant was doing well overall, with the only complaint of significance being "mild generalized headaches." Upon returning to work, claimant worked light duty for five days. She then resumed full duty in her position as a furnace operator.
¶ 4 The medical records indicate that claimant did not receive any additional treatment relative to her work injury until February 4, 2009, when she returned to Parkview Family Practice and was examined by Dr. Glen Ricca. At that time, claimant complained of headaches. Claimant told Dr. Ricca that the headaches resolve after she takes an allergy pill and that she did not think that the headaches were related to her work injury. Upon examination, Dr. Ricca noted a nontender "small indentation" in the right lateral forehead. Dr. Ricca's notes reflect that "workman's comp wanted [claimant] to be checked by 'neurosurgeon.' " In accordance with that request, Dr. Ricca referred claimant to Dr. Rakesh Garg. Dr. Rakesh Garg examined claimant on February 11, 2009. In his report, Dr. Rakesh Garg noted that claimant's neurological examination was "completely normal." Dr. Rakesh Garg also reported that claimant had a "dent in the right frontal area which is most likely related to the trauma and loss of front muscle in that area." He concluded that the dent was "left over from the trauma," but determined that no further treatment was necessary and that the dent would not cause claimant any "trouble" in the future.
¶ 5 Thereafter, claimant consulted the telephone directory in search of a dermatologist to repair her right temple. To that end, on February 23, 2010, claimant saw Dr. J. Eric Lomax of Soderstrom Dermatology. Dr. Lomax noted that claimant was hit in the head by a piece of steel at work several years earlier, resulting in a laceration to the area. Upon examination, Dr. Lomax noted the existence of a two centimeter by one centimeter "depressed area on the right frontal temporal region in the area in front of the temporal hairline." Dr. Lomax's examination revealed that, although nontender to palpation, the area does have a raised lower edge as if there was some scarring. Dr. Lomax recommended "autologous fat grafting to fill the area [and] correct the deformity with minimal intervention." Claimant testified that she did not have any skin blemishes or indentations on her right temple prior to January 27, 2007. Claimant added that she would like to undergo the procedure recommended by Dr. Lomax because she "want[s] it back the way it was."
¶ 6 During the arbitration hearing, claimant's attorney asked the arbitrator to "take notice" of the area in question. Following a brief pause, the arbitrator asked if Dr. Lomax was "proposing to repair that indentation." Claimant responded in the affirmative.
¶ 7 Based on the foregoing evidence, the arbitrator found that claimant's current condition of ill-being is causally related to the January 27, 2007, accident. However, the arbitrator concluded that claimant's consultation with Soderstrom Dermatology, which claimant acknowledged was not the result of a referral, was outside the so-called two-physician rule. See 820 ILCS 305/8(a) (West 2006). In particular, the arbitrator found that after being seen at St. Mary's Hospital, claimant followed up "separately" with Dr. Ricca and Dr. Rakesh Garg. Additionally, the arbitrator denied claimant's request for prospective cosmetic medical treatment, citing the report of Dr. Rakesh Garg and the fact that the prospective medical treatment was prescribed by claimant's third choice of physician. Finally, the arbitrator denied claimant's request for penalties, additional compensation, and attorney fees (see 820 ILCS 305/16, 19(k), 19(l) (West ...