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  Delay in "Authorization" v. Delay in "Payment" Hollywood Casino v. IWCC 2012 IL App (2d) 110426WC


Petitioner was employed as a cocktail waitress by Respondent, Hollywood. On January 1, 1999, she sustained a crushing injury to her foot while working. During the course of treatment, Dr. Lubenow implanted a spinal cord stimulator in the Petitioner. Following a hearing, Petitioner was awarded benefits for the back and her right foot.

Following the decision, Petitioner continued to treat with Dr. Lubenow who wrote a letter to the adjuster stating that the stimulator's battery would likely need replacement "within the first quarter of 2007." The adjuster received the letter on January 7, 2007 and never contacted Dr. Lubenow with any questions. In May 2007, the battery ceased to function and Dr. Lubenow scheduled the battery replacement surgery to take place that month. The adjuster requested a report from Dr. Lubenow explaining the medical necessity of the same, which was subsequently received on June 18, 2007. The surgery was performed on August 27, 2007.

The Petitioner filed a Section 19(k) Petition for Penalties with the Commission. The Commission awarded Petitioner $40,750 in penalties and found that Respondent, "unreasonably delayed authorization for the surgery performed by Dr. Lubenow without good and just cause." However, the Commission denied Petitioner's request for attorney fees under Section 16 of the Act.

Respondent sought review of the Commission decision with the Circuit Court, which reversed the Commission's decision and found that there was no legal basis for awarding penalties and fees where there was a delay in authorizing treatment. The Appellate Court agreed and noted:

  1. Section 19(k) addresses only "delay in payment," and "underpayment." The statute does not mention anything relative to delay in authorization in medical treatment; 

  2. It was undisputed that payment for the surgery was timely;

  3. There is no provision in the Act authorizing the Commission to assess penalties against the employer for delaying medical authorization.

What this means:

  • There is no requirement in the Act that Respondent must pre-authorize medical treatment;
  • Note: the Court emphasized that bills related to her surgery were promptly paid in full;
  • This is a 3-2 decision from the Court and, thus, may be subject to further appeal.