The Journal of The DuPage County Bar Association

Back Issues > Vol. 11 (1998-99)

Workers’ Compensation Review 1998 Term Cases of Significance
By Honorable Michael J. Colwell

The Industrial Commission Division of the Illinois Appellate Court hears appeals that arise out of proceedings before the Illinois Industrial Commission. The Illinois Supreme Court assigns one judge from each of the five appellate districts to this panel. Consequently, the litigants appeal from the circuit court to the Industrial Commission Division instead of appealing to one of the five appellate districts. This panel hears oral arguments in Springfield and Chicago seven or eight times per year. The panel then issues the opinions and/or Rule 23 orders for each of the cases.

I have had the privilege of being assigned to the Industrial Commission Division since December 1994. This article reviews the published opinions of our division of the appellate court in 1998.

ILLINOIS SUPREME COURT CASES

Section 19(k) penalties and section 16 attorney fees may be awarded where the respondent failed to pay benefits prior to an adjudication of liability or unreasonably delayed paying medical expenses

McMahan v. Industrial Comm’n, 183 Ill. 2d 499 (1998) — The claimant suffered an injury in May 1992 when he slipped and fell. The claimant informed his supervisor of the incident and, despite enduring pain in his lower back, kept working. The respondent’s policy was to avoid submitting accident reports to its workers’ compensation insurer for "small" accidents; thus, the respondent did not inform its insurer of this accident until November 1992. Since the respondent failed to timely notify it of the accident, the insurer refused to pay for the claimant’s mounting medical bills. In January 1994, the claimant underwent back surgery related to his fall and stopped working. The claimant’s attorney contacted the respondent to request TTD benefits, but the respondent refused.

The arbitrator awarded the claimant TTD benefits, medical expenses, section 16 attorney fees and penalties under sections 19(k) and 19(l). The Commission eliminated the award of attorney fees and section 19(k) penalties, and the circuit court confirmed. The claimant subsequently appealed, challenging only the Commission’s refusal to award the attorney fees and section 19(k) penalties. The appellate court, with one justice dissenting, reinstated the arbitrator’s decision by awarding section 16 attorney fees and section 19(k) penalties. The respondent appealed.

The issue before the supreme court was whether the claimant was entitled to section 16 attorney fees and section 19(k) penalties. First, the court held that section 16 attorney fees and section 19(k) penalties can be imposed based on an employer’s failure to pay benefits prior to an adjudication of liability. The court’s decision in Brinkman v. Industrial Comm’n, 82 Ill. 2d 462 (1980), did not preclude the imposition of fees and penalties in such circumstances. Second, despite the fact that sections 16 and 19(k) do not explicitly state that arbitrators may award attorney fees and penalties under sections 16 and 19(k), the court found that arbitrators could do so if the Commission reviews the award. Third, the court held that attorney fees and penalties can be awarded solely on the basis of an employer’s unreasonable delay in paying medical expenses, thereby overruling Childress v. Industrial Comm’n, 93 Ill. 2d 144 (1982). Fourth, noting the respondent’s intentional failure to comply with its insurance policy and its calculated decision not to pay the claimant’s benefits, the court held that the Commission’s decision that the claimant was not entitled to section 16 attorney fees and section 19(k) penalties was against the manifest weight of the evidence.

Justice Heiple specially concurred, and Justice Miller concurred in part and dissented in part. Justice Heiple suggested that the court should have overruled Brinkman because he interpreted Brinkman as authorizing the imposition of attorney fees and penalties only after an adjudication of liability. Justice Miller disagreed only with the court’s decision to overrule Childress. According to Justice Miller, the language of Childress became part of sections 16 and 19(k) themselves because the Childress case stood for 16 years and the legislature chose not to amend sections 16 and 19(k) to curb the effect of Childress. Thus, said the justice, the court in effect improperly amended the statute by overruling Childress.

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The Commission is the proper forum to determine whether an employer or its workers’ compensation insurer is entitled to credits for amounts received by the claimant in a third-party tort action

Scott v. Industrial Comm’n, 184 Ill. 2d 202 (1998) — The decedent’s widow, on his behalf, filed a claim for medical expenses and TTD benefits against the decedent’s employer (a subcontractor on a demolition project) and, on her own behalf, filed additional claims for burial expenses and surviving spouse benefits against the decedent’s employer, the project’s general contractor, and the employer’s insurer.

Finding that the insurance contract between the decedent’s employer and its workers’ compensation insurer had been canceled prior to the decedent’s death, the arbitrator dismissed the insurer. The arbitrator then found the employer liable for medical expenses, TTD benefits, burial expenses, surviving spouse benefits, statutory penalties and attorney fees. Since the employer was found to be uninsured at the time of the accident, the arbitrator further found that the general contractor was also liable for the expenses, benefits, and statutory penalties and attorney fees assessed against the employer.

The decedent’s widow and the general contractor appealed to the Commission. The Commission reversed the arbitrator and found that the insurance policy between the employer and its insurer was in effect at the time of decedent’s death. Thus, the Commission found that the insurer was a proper party and that it was jointly liable with the now bankrupt employer for the award of expenses and benefits. Additionally, the Commission found that the conduct of the employer and the general contractor did not justify the imposition of statutory penalties or attorney fees; instead, the Commission found that only the insurer acted unreasonably and vexatiously and that the insurer had filed numerous frivolous motions. As a result, the Commission assessed statutory penalties and attorney fees only against the insurer.

During the pendency of the arbitration proceedings, the administrator of the decedent’s estate filed a third-party wrongful death action in which the insurer sought to intervene to protect its rights under section 5(b). After having been granted the right to intervene, the insurer withdrew from the third-party action. While the workers’ compensation case was pending on review in the circuit court, the third-party action settled.

On judicial review, the circuit court confirmed the Commission’s decision in the workers’ compensation case. The insurer and the decedent’s wife appealed to the appellate court, and the appellate court affirmed.

After the issuance of the appellate court’s mandate, the insurer sent the decedent’s wife three checks but not the entire amount due under the final award affirmed by the appellate court. The insurer withheld an amount equal to the medical expenses already paid through the third-party settlement to lien-holding health care providers. In addition, the insurer unilaterally withheld portions of the statutory penalties, interest, and attorney fees.

Concurrently, the insurer filed a petition with the Commission seeking leave to file a special and limited appearance to present two motions. The insurer sought a determination of credits for amounts received in the third-party settlement and a determination that it was not liable for the amounts it withheld from the award of statutory penalties, interest, and attorney fees.

The Commission denied the insurer’s petition and, believing that the petition was frivolous, awarded additional compensation and attorney fees. Within the determination of the additional compensation and attorney fees, the Commission included old statutory penalties and attorney fees. On subsequent review, the circuit court confirmed, and the appellate court affirmed.

On appeal, the supreme court found that the Commission was the proper place to determine whether the insurer was entitled to credits for the amounts received by the decedent’s wife in the third-party action. According to the supreme court, the insurer waived its ability to obtain a section 5(b) lien but not its ability to claim credits under section 5(b), and since the third-party action had already settled when the insurer’s liability on the workers’ compensation award became final after appellate review, the Commission, which entered the original compensation award, was the proper forum. Thus, the supreme court remanded the matter to the Commission to determine the credits to which the insurer was entitled for amounts received by the decedent’s wife in the third-party settlement.

The supreme court also found that the doctrine of res judicata barred the insurer from relitigating its liability for the penalties, interest, and attorney fees. Any potential liability for the penalties, interest, and attorney fees, however, should be based only on any outstanding amounts after considering the insurer’s credits. The supreme court also found that since the insurer’s argument regarding the determination of credits was not frivolous, it could not support the imposition of penalties and attorney fees. However, since the Commission also found that the insurer filed other frivolous motions, the supreme court remanded the matter to the Commission to determine whether it would have assessed a statutory penalty and attorney fees based on these other grounds.

Finally, the supreme court rejected the decedent’s wife’s argument that she should be allowed to recover more than one penalty. Even if several violations of section 19(k) have occurred, there is only a single means of calculating the penalty.

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Section 19(b—1)(x) does not require the claimant to attach documents that establish a complete incapacity to perform all work

Choi v. Industrial Comm’n, 182 Ill. 2d 387 (1998) — The claimant filed a section 19(b—1) petition for immediate hearing and attached three documents to the petition, none of which established a total inability to work. Despite the respondent’s claim that the petition was defective as a result, the arbitrator awarded the claimant TTD benefits and vocational rehabilitation.

The Commission, however, dismissed the claimant’s petition concluding that the claimant had failed to attach a recent medical report that stated that she was incapable of work. The circuit court confirmed, and the appellate court, with two justices dissenting, affirmed. The appellate court agreed that the claimant’s petition was defective because she had failed to establish that she was currently unable to work at all.

The supreme court, on the other hand, held that a claimant may satisfy the requirements of section 19(b—1)(x) without establishing the complete inability to perform all work. The court reasoned that to give full effect to the purpose of the statute the phrase "inability to return to work," as used in section 19(b—1)(x), should be equated with the phrase "temporarily totally disabled," and that phrase does not require total physical and mental incapacity. Accordingly, the supreme court reversed and remanded the matter to the Commission for further proceedings.

ILLINOIS APPELLATE COURT CASES

The claimant’s heart attack did not arise out of his employment

Flynn v. Industrial Comm’n, __ Ill. App. 3d __, 1998 WL 909747 (Ill. App. Dec. 31, 1998) — The decedent, a vice president at an automobile seat manufacturer, died from a heart attack at age 55. The decedent’s widow sought death benefits from the respondent, asserting that work-related stress was a causative factor of the decedent’s heart attack. The arbitrator agreed with the claimant, but the Commission reversed upon review. The Commission found that the heart attack did not arise out of and in the course of the decedent’s employment. The circuit court confirmed the Commission’s decision, and the claimant appealed.

The appellate court affirmed, holding that there was ample evidence to support the Commission’s finding that work-related stress was not a causative factor of the decedent’s heart attack. The court found that the decedent’s work did not subject him to an unusually high level of stress. Although his heart attack occurred during the respondent’s busiest time of the year, it was not any busier than part years. Thus, at the time of his death, the decedent was working approximately the same hours he worked throughout his career. Furthermore, although the decedent was concerned about his job security because his company was being sold, the court characterized this concern as a normal and expected condition of employment life.

The court also noted the testimony of the respondent’s physician, who stated that other factors from the decedent’s personal life likely caused his heart attack. For example, within seven months prior to his death, the decedent’s wife and pregnant daughter were diagnosed with breast cancer and Hodgkin’s disease, respectively. Furthermore, the decedent was mildly obese, and his father also died of a heart attack at age 55.

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Sections 11 does not abrogate the common law traveling employee doctrine as it applies to recreational activities

Bagcraft Corp. v. Industrial Comm’n, __ Ill. App. 3d __, 1998 WL 896295 (Ill. App. Dec. 23, 1998) — One of the respondent’s major suppliers invited the respondent, as it had the previous three years, to send a group of employees to visit its facility and stay at the company lodge in Wisconsin. The respondent sent the decedent, partially because of his familiarity with the supplier’s products.

In keeping with the prior outings, upon arriving from Chicago, the respondent’s employees received a tour of the facility, discussed general business and quality issues, and participated in meetings. After the meetings concluded, everyone drove to the company lodge to spend the remainder of the afternoon and evening.

At the lodge, the respondent’s employees engaged in a wide range of recreational activities. The activities had also been provided in previous years and were described in a folder of information given to the respondent’s employees. While riding an ATV, decedent suffered a severe head injury and died.

The decedent’s widow filed an application for adjustment of claim seeking benefits for the decedent’s death. The arbitrator, finding that the decedent was a traveling employee and that riding an ATV was a reasonable and foreseeable activity, found in the claimant’s favor. The Commission affirmed, and the circuit court confirmed.

On appeal, the respondent did not dispute that the decedent was a traveling employee. Instead, the respondent argued that section 11 bars recovery because the decedent was injured while voluntarily participating in a recreational activity. In other words, the respondent was arguing that section 11 abrogates the common law traveling employee doctrine as it applies to recreational activities. The court, however, disagreed and found that while the unambiguous language of section 11 forecloses recovery where an employee sustains an injury during recreational programs, such as athletic events, parties, and picnics, when the employee’s participation is voluntary, it does not evince an intent on the part of the legislature to abrogate the traveling employee doctrine. Accordingly, the court affirmed.

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Where the claimant violated company policy by riding as a passenger in a forklift and was consequently injured, the claimant was not acting within the scope of his employment

Saunders v. Industrial Comm’n, __ Ill. App. 3d __, 1998 WL 771541 (Ill. App. Nov. 5, 1998) — The claimant was injured after he got out of a forklift in which he was riding as a passenger. The arbitrator denied the claimant compensation, finding that the injury did not arise out of his employment. The Commission, with one commissioner dissenting, affirmed and adopted the decision of the arbitrator, and the circuit court confirmed the Commission’s decision.

The issue on appeal was whether the accident arose out of the claimant’s employment. The appellate court found that it did not. The court stressed, first, that the respondent had a policy prohibiting its employees from riding in a forklift as a passenger and, second, that the claimant’s injury resulted from a violation of this policy. This policy was known by the employees and enforced by the respondent. The court further found that, because he could take his 10-minute break at any time within reason, the claimant should have been in no hurry to reach the break room. The appellate court concluded, therefore, that the claimant was injured while engaging in a prohibited activity that was not part of his work.

Two judges dissented, finding that the injury arose out of and in the course of the claimant’s employment. The issue, according to the dissenting judges, was whether the violation related to the method of accomplishing the work to be done. The work to be done, said the dissent, was reaching the break room, since the 10-minute break was fully authorized by the employer. The claimant was in the plant and on his way to the break room, and therefore he was within the course and scope of his employment. In the dissent’s eyes, the fact that the claimant violated a company rule by riding as a passenger on the lift simply related to the method in which the claimant went on break.

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A stamped copy of a settlement contract attached to a section 19(g) petition was insufficient to meet the certification requirements under section 19(g)

Slover v. Industrial Comm’n, 299 Ill. App. 3d 831 (1998) — The claimant suffered accidental injuries arising out of and in the course of her employment with the respondent. The claimant and the respondent subsequently entered into a settlement contract obligating the respondent to pay all of the claimant’s outstanding medical bills.

Thereafter, the claimant filed a section 19(g) petition in the circuit court alleging that the respondent had failed to pay all of her outstanding medical bills. The claimant also filed a copy of a standardized form settlement contract bearing a stamp that read: "APPROVED and CERTIFIED pursuant to 48 IL Rev. Stat. 138.14." The stamp included the signatures of all of the Commission members and the arbitrator. The respondent then filed a section 2—619(a)(1) motion to dismiss arguing that the circuit court lacked jurisdiction because the claimant had failed to file a certified copy of the settlement contract in compliance with section 19(g). The circuit court granted the respondent’s motion.

The issue on appeal was whether the stamp on the copy of the settlement contract was sufficient under the certification requirements of section 19(g). The appellate court found that the stamp was insufficient. The court noted that the stamp failed to contain the words "Illinois—Seal" and the signature of the custodian of the Commission’s records, as required by section 19(g). Further, the court found that the arbitrator’s signature was only sufficient to approve the settlement contract but was insufficient to certify the copy. Additionally, the court found that any intent by the Commission to certify the copy by using the word "certified" in the stamp and by referring to section 14 on the stamp was irrelevant because the stamp did not meet the requirements of section 19(g). Consequently, the court affirmed the circuit court’s dismissal.

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The claimant’s child was a "dependent" within the meaning of section 8(e)(19)

Divittorio v. Industrial Comm’n, 299 Ill. App. 3d 662 (1998) — The decedent suffered a work-related injury and filed an application for adjustment of claim but died from causes unrelated to his injury prior to arbitration. The decedent’s daughter and his mother also filed an application for adjustment of claim.

Previously, the circuit court had ordered the decedent to support his daughter and to repay the Illinois Department of Public Aid for monies expended on her behalf. The amount of support and reimbursement was not determined. In addition, the daughter’s mother testified that the decedent provided approximately $5 to $30 for his daughter’s support about two to four times per month until she was three years old at which time he was restrained from seeing her. The decedent also gave his daughter $20 to $30 or small gifts on her birthday. Further, whenever his daughter needed anything, the decedent gave her mother money.

The arbitrator awarded TTD and permanent disability benefits, and finding the decedent’s daughter and mother were survivors under section 8(h), awarded the benefits to them in equal shares. The Commission affirmed the TTD award, vacated the permanent disability award, and found the decedent suffered a specific loss under section 8(e). In addition, the Commission found that the decedent’s mother was not entitled to the decedent’s award because she not a dependent under section 8(e)(19) but that the decedent’s daughter was a dependent under section 8(e)(19) and entitled to the decedent’s benefits. The circuit court confirmed.

On appeal, the appellate court affirmed. The court noted that under section 8(e)(19), only widows and widowers of the deceased are expressly entitled to the decedent’s benefits while all others, including the decedent’s children, must prove that they are dependent on the decedent to receive the decedent’s benefits. Based on the facts on this case, the court found that a reasonable expectation of support existed when the decedent died.

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Termination of TTD benefits was not against the manifest weight of the evidence

Beuse v. Industrial Comm’n, 299 Ill. App. 3d 180 (1998) — On October 13, 1992, the claimant suffered an injury while working as a fireman for the respondent. The parties stipulated that the respondent paid the claimant his regular wages from October 14, 1992, to October 13, 1993, and TTD benefits from October 14, 1993, through April 27, 1994. The claimant’s treating physician testified before the arbitrator that the claimant could return to light-duty work on November 11, 1993, and the respondent’s physician testified that the claimant could return to full-duty work without restrictions on April 27, 1994. The arbitrator awarded the claimant $371.36 per week for 94 weeks for a 40% loss of use of his right arm, and $453.95 per week for 79 6/7 weeks in TTD benefits. The respondent appealed to the Commission.

The Commission found that the claimant was capable of performing light-duty work but failed to look for work. The Commission therefore vacated 51 6/7 weeks of the TTD award (from April 27, 1994, through April 25, 1995), and affirmed the arbitrator’s decision in all other respects. The circuit court confirmed, and the claimant appealed.

The issue on appeal was whether the Commission’s decision to vacate a portion of the claimant’s TTD award was against the manifest weight of the evidence. It was undisputed that no light-duty work with the respondent was available but also that the claimant did not look for light-duty work elsewhere. The appellate court stated that once an injured employee’s condition stabilizes, he is no longer entitled to TTD benefits. The claimant’s physician testified in November 1993 that the claimant’s medical condition would stabilize in six to nine months. Furthermore, the respondent’s physician opined in December 1993 that the claimant’s condition was temporary and, on April 27, 1994, stated that the claimant could return to full-duty work. The appellate court therefore concluded that the Commission’s decision to terminate the claimant’s TTD benefits on April 27, 1994, was not against the manifest weight of the evidence.

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Section 19(h) contemplates an award of additional TTD benefits even when the claimant’s injury had previously reached a state of permanency

Poore v. Industrial Comm’n, 298 Ill. App. 3d 719 (1998) — The claimant suffered severe burns arising out of and in the course of his employment with the respondent. The arbitrator awarded the claimant TTD benefits and PPD benefits. The Commission modified the length of the arbitrator’s TTD award. Neither party appealed.

After the Commission’s decision, the claimant required additional medical treatment. As a result, the claimant filed a petition for review pursuant to sections 8(a) and 19(h) requesting that the Commission increase his PPD benefits, grant him additional TTD benefits, and award him additional reimbursement for medical expenses. The Commission granted the claimant’s request for additional reimbursement for medical expenses but denied his request for an increase in his PPD benefits and additional TTD benefits. The circuit court confirmed the Commission’s decision.

The issue on appeal was whether an additional award of TTD benefits is contemplated by section 19(h) where the Commission previously determined that the claimant’s injury had reached a state of permanency. Relying on World Color Press v. Industrial Comm’n, 249 Ill. App. 3d 105 (1993), the appellate court found that the claimant was entitled to additional TTD benefits under section 19(h) if the claimant showed that his or her disability destabilized and required more treatment or recovery time and that, as a result, he or she was temporarily and totally disabled. Since the Commission lacked the guidance of World Color, the appellate court remanded the matter to the Commission to determine whether the claimant was entitled to additional TTD benefits.

The Commission erred in failing to include payments designated "reimbursement for travel expenses" in the calculation of the claimants’ average weekly wage

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Swearingen v. Industrial Comm’n, 298 Ill. App. 3d 666 (1998) — In this consolidated appeal, both claimants, Swearington and Scroggins, were truck drivers employed by the same trucking company. They each earned approximately $400 per week in gross pay and each suffered work-related injuries. Each case was tried before a different arbitrator. The respondent’s representative testified before both arbitrators that half of the drivers’ gross pay was a "reimbursement" for travel expenses. This reimbursement payment, said the representative, was not earned income; rather, it covered a driver’s personal expenses while on the road such as lodging and meals.

The arbitrator in Swearington’s case awarded her 82 2/7 weeks of TTD benefits at an average weekly wage of $412.02. The Commission reduced Swearington’s TTD award to $207.01, finding that Swearington was not entitled to receive the travel-reimbursement portion of her pay.

The arbitrator in Scroggins’ case awarded him 45 3/7 weeks of TTD benefits at an average weekly wage of $196.86. The arbitrator found that one-half of Scroggins’ weekly gross pay was not earned income but was reimbursement for travel expenses. The Commission, with one commissioner dissenting, affirmed this finding.

The circuit court confirmed both decisions, and both claimants appealed. The issue before the appellate court was whether to include payments designated as a "reimbursement for travel expenses" when calculating an employee’s average weekly wage. The matter was one of first impression in Illinois, and the court looked to the laws of other jurisdictions. The appellate court followed the general rule that travel-reimbursement payments represent real economic gain and therefore could be included in an employee’s average weekly wage. The court found that the trucking company in this case designated a portion of its employees’ salaries "reimbursement" so as to avoid paying taxes on such payments. Also, the company awarded certain drivers with a one-week’s vacation pay of $400. The court therefore remanded both cases to the Commission for a recalculation of the claimants’ average weekly wage.

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The claimant suffered a heart attack which arose out of and in the course of his employment

Waukegan v. Industrial Comm’n, 298 Ill. App. 3d 1086 (1998) — The claimant worked on the city of Waukegan’s police force from January 1971 to November 1991. He worked as a shift commander from 1985 to 1990, and as a commanding officer of community services thereafter. On the morning of November 5, 1991, the claimant suffered a heart attack but survived.

The arbitrator awarded him PTD benefits, finding that his heart attack arose out of and in the course of his employment. The Commission affirmed the arbitrator’s decision, and the circuit court confirmed the Commission’s decision. The respondent appealed.

The two issues on appeal were whether the following findings of the Commission were against the manifest weight of the evidence: (1) that the claimant’s heart attack arose out of and in the course of his employment and (2) that the claimant was permanently and totally disabled. The appellate court, with two judges dissenting, affirmed. Regarding the first issue, the court noted that the majority of the medical testimony supported the Commission’s finding of causal connection. One doctor testified that the claimant had more severe physiological reactions to stress than most people do. There was also ample evidence that the claimant’s work from 1985 to 1991 caused him great stress. Regarding the second issue, one doctor testified that, because of the claimant’s current heart condition, the stress of another job would place him in jeopardy of dying. Another doctor stated that the only job the claimant could handle was one entirely devoid of stress. The appellate court therefore concluded that there was no stable job for the claimant.

The dissenting judges could not find a causal connection between the claimant’s employment and his heart attack. The dissent could find no evidence suggesting that the claimant was subject to more stress or to a greater risk of heart attack than the general public was. In the dissent’s view, the claimant’s job did not expose him to an unusual amount of stress.

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The Commission may sua sponte determine on which date an accidental injury occurred, and an employer cannot waive the issue of whether the Commission exceeded the statutory maximum of PPD benefits

Freeman United Coal Mining Co. v. Industrial Comm’n, 297 Ill. App. 3d 662 (1998) — The claimant began working for the respondent as a repairman in January 1992. The claimant noticed in February that his hands would often lock up and go numb, and on March 13, 1992, a doctor diagnosed the claimant as suffering from bilateral carpal and cubital tunnel syndrome. The claimant continued to work despite suffering from pains in both his hands and arms. On August 25, 1992, another doctor recommended that the claimant undergo surgery. The surgery was not performed until March and April 1993 by Dr. Watson, who testified that the claimant’s ill-being was caused his employment.

The arbitrator found Dr. Watson’s opinion as to causation unpersuasive and concluded that the claimant failed to establish a causal connection between his employment and his injuries. The Commission reversed the decision of the arbitrator, awarding the claimant TTD, PPD and medical benefits and finding an accident date of March 13, 1992. The Commission further awarded the claimant penalties and attorney fees for the respondent’s unreasonable and vexatious refusal to pay TTD benefits.

The appellate court held that, even though the claimant alleged an accident date of August 25, 1992, the Commission did not err in sua sponte finding that the accident date was March 13, 1992. The Commission could establish the correct date of the accident if there were facts to support the Commission’s finding. The respondent also argued for a reduction in the Commission’s PPD award, since the award exceeded the statutory maximum. The court determined that the respondent did not waive this issue for further review, despite the respondent’s failure to raise the issue with the Commission. The court held that the issue was not waivable and remanded the case for a determination of PPD benefits. Finally, the appellate court held that the Commission may award penalties and attorney fees if the arbitrator does not.

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A dismissed attorney’s motion to allocate attorney fees was timely filed in the Commission 10 days after approval of the settlement contract

Yocum v. Industrial Comm’n, 297 Ill. App. 3d 813 (1998) — The claimant’s attorney, Delano, filed an application for adjustment of claim but was subsequently discharged. The claimant then hired Danz, and Delano filed a motion to withdraw, requesting that the arbitrator determine the question of attorney fees at the conclusion of the case. The arbitrator allowed the motion.

On January 9, 1996, the respondent signed a settlement contract. The claimant signed the settlement contract on March 7, 1996, and Danz signed the settlement contract on March 18, 1996. In the interim, Delano learned of the proposed settlement contract and attempted to set a hearing date on his motion to allocate fees. After rescheduling once, Delano set the motion for March 18, 1996, but Danz, without Delano’s knowledge, removed the case from the arbitrator’s hearing docket. Delano again reset the motion for April 15, 1996, but Danz’s office informed him that the arbitrator had already approved the settlement contract. The settlement contract indicated that the arbitrator and the Commission approved it, but the date of the approval was not discernable. Delano then filed a motion for allocation of fees with the Commission on April 25, 1996. The Commission allocated the fees between Delano and Danz. The circuit court confirmed the Commission decision, and the claimant appealed.

On appeal, Danz argued that the Commission lacked subject matter jurisdiction to allocate attorney fees because Delano failed to file a petition for review with the Commission within 30 days of the arbitrator’s approval of the settlement contract; thus, the Commission’s order was void. The appellate court rejected this argument.

The court noted that the Commission concurrently possesses original and appellate jurisdiction and that the Commission possesses the final authority to approve settlement contracts. Since the arbitrator did not rule on Delano’s motion to allocate fees, the Commission treated Delano’s motion as a timely motion to allocate fees and not as a motion to review the arbitrator’s decision relative to a dispute concerning the settlement contract. Since the record was not clear and the parties provided no assistance, the court assumed that the settlement contract was approved on April 15, 1996. Consequently, Delano’s April 25, 1996, motion, filed while the Commission possessed original and appellate jurisdiction, was timely.

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The respondent waived the right to argue that the arbitrator incorrectly determined the claimant’s wage calculation where the respondent failed to properly raise the issue with the Commission

Jetson Midwest Maintenance v. Industrial Comm’n, 296 Ill. App. 3d 314 (1998) — Immediately prior to the start of a section 19(b) hearing, the claimant and the respondent completed a stipulation sheet which was marked and offered as an exhibit. At paragraph five, the claimant’s average weekly wage figure of $304.50 was crossed out and replaced with a hand-written figure of $231.51. There were no initials or date next to the change.

The arbitrator issued the claimant a compensation award and recited the $304.50 per week figure rather than the $231.51 figure. The respondent subsequently filed a timely petition for review with the Commission but did not raise the arbitrator’s calculation of average weekly wage as error. The respondent’s statement of exceptions and supporting brief was due to be filed with the Commission on June 9, 1995. On July 31, 1995, three days before oral argument before the Commission, the respondent filed his exceptions and brief, in which the respondent raised the average weekly wage issue. The Commission denied oral argument and found the average weekly wage issue waived. The circuit court confirmed the decision of the Commission.

The appellate court held that the Commission did not abuse its discretion in finding the average weekly wage issue waived. The court cited section 7040.70(d) of the Commission Rules, which states that the Commission will consider only the issues raised in the review form and in the statement of exceptions and supporting brief. Section 7040.70(d) construes the failure to file a timely statement of exceptions and supporting brief as an election not to advise the Commission of any reason to change the arbitrator’s decision.

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The respondent may file a section 12 appointment for examination after a PTD award and prior to a section 8(f) or 19(h) petition

King v. Industrial Comm’n, __ Ill. App. 3d __, 1998 WL 832416 (Ill. App. Nov. 24, 1998) — The arbitrator awarded the claimant TTD and PTD benefits, and the Commission affirmed and adopted the arbitrator’s decision, finding that the claimant had established that he fell into the "odd-lot" category and was permanently and totally disabled. Neither party appealed.

Subsequently thereafter, the respondent’s attorney twice made appointments for a general physical examination of the claimant by a doctor of the respondent’s choosing. The claimant refused to comply. As a result, the respondent filed a motion to suspend the claimant’s benefits; the respondent, however, did not initiate any other proceedings. The Commission denied the motion to suspend compensation but ordered the claimant to submit himself to an independent medical examination pursuant to section 12, and the circuit court confirmed that decision.

The issue on appeal was whether section 12, as matter of law, may be applied to require the claimant, for whom the Commission has made an award of PTD, to attend a medical examination scheduled by the respondent even though no section 8(f) or 19(h) petition was pending. The appellate court originally reversed the circuit court, but after a petition for rehearing, the appellate court, with two justices dissenting, withdrew its prior opinion and affirmed the circuit court.

According to the majority of the court, the respondent could invoke section 12. The majority noted that the respondent did not unilaterally terminate the claimant’s benefits despite his refusal to submit to the section 12 examination. Instead, the respondent properly filed a petition to terminate benefits while continuing to pay the claimant’s award.

The majority reasoned that to require a respondent to file a section 8(f) petition prior to a section 12 examination request would subject the parties to costs and attorney fees and would also unnecessarily increase the Commission’s caseload. In addition, if the section 12 examination request was not allowed prior to a section 8(f) or 19(h) petition, the respondent could face sanctions if the examination results were unfavorable to its position. Furthermore, while the majority declined to decide the applicability of sections 4(c), 4(h), 16, and 19(k), they did note that a claimant could turn to the protections of the Act if the respondent’s request was found to be vexatious or unreasonable.

The dissent believed that in light of the claimant’s physical impairment in relation to his advanced age, grade school education, lack of skills, illiteracy, and narrow work experience, a medical exam would serve no meaningful purpose. As a result, the dissent advocated a position in which an employer was entitled to a section 12 examination if the employer could make some minimal showing that there was reason to believe that the employee’s physical condition had changed and that the change in relation to the other factors under the odd-lot doctrine rendered the employee employable.

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The evidence supported the Commission’s finding that the claimant’s contract for hire was made in Illinois, and the Commission’s calculation of average weekly wage rate did not result in a windfall to the claimant

D.J. Masonry Co. v. Industrial Comm’n, 295 Ill. App. 3d 924 (1998) — The claimant was unemployed and living in South Holland, Illinois. In November 1988, he contacted the respondent, a company located in Indiana, regarding potential employment. Richard Devries, the owner of the company, told the claimant to meet him the next day at a job site in Crete, Illinois. After the claimant completed one day of work at the Crete site, Devries offered him a job. Approximately four years later, a scaffold fell on the claimant’s head at a job site in Indiana. The claimant suffered serious injuries and was unable to return to work.

The claimant filed an application for adjustment of claim. The arbitrator awarded him TTD benefits for 98 1/7 weeks and $2500 in section 19(l) penalties. The Commission increased the claimant’s average weekly wage and also awarded him section 19(k) penalties and section 16 attorney fees. The circuit court confirmed but remanded the cause to the Commission for a recalculation of attorney fees and penalties. The respondent appealed.

The issues on appeal were whether either the Commission’s decision that the contract for hire was made in Illinois or the Commission’s calculation of the claimant’s average weekly wage was against the manifest weight of the evidence. The appellate court considered that the following facts were sufficient to support a finding that the contract for hire was made in Illinois: Devries did not offer the claimant a job over the telephone; the job offer was made in Illinois after the claimant completed one day of work; and Devries gave the claimant tax forms to complete after the day of trial work. The court also found that the Commission’s computation of the claimant’s average weekly wage did not result in a windfall to the claimant. In fact, the court determined that the Commission’s computation of the claimant’s yearly TTD benefits yielded a figure approximately $3500 less than the claimant’s earnings the year preceding his injury.

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An individual signing an appeal bond on behalf of a corporate respondent need not identify his or her corporate office, and a corporate respondent can present evidence after the expiration of the 20-day statutory period for review to identify the individual’s corporate status and authority to bind the corporation

First Chicago v. Industrial Comm’n, 294 Ill. App. 3d 685 (1998) — The respondent sought judicial review by filing the appropriate documents including an appeal bond, but the party signing the appeal bond on the corporate respondent’s behalf, John A. Bradley, did not identify his status with or relationship to the respondent. The claimant, arguing that the bond was inadequate because Bradley did not sign as a corporate officer or identify his authorization to execute the bond on the respondent’s behalf, filed a special and limited appearance and a motion to dismiss that the circuit court granted.

The appellate court, with two justices dissenting, reversed and remanded. The first issue was whether section 19(f)(2) required an individual signing an appeal bond on behalf of a corporate respondent to identify his or her status as a corporate officer of the corporation, and the court held that section 19(f)(2) does not contain such a requirement. The second issue then was whether a corporate respondent may present evidence, such as an affidavit, after the expiration of the 20-day statutory period of review identifying the individual’s corporate status and authority to bind the corporation, and the court answered in the affirmative. Finally, the court held that a corporate officer could sign an appeal bond on behalf of a corporate respondent. Thus, if the respondent could prove that Bradley was a corporate officer with authority, as alleged, then the circuit court should consider the merits of the petition for review.

According to the dissent, unless the bond is signed by a corporate officer or director, the authority of the individual signing the bond must accompany the bond. In addition, the dissent would not allow evidence of authority to be submitted after the expiration of the 20-day statutory period.

Honorable Michael J. Colwell is a Justice of the Illinois Appellate Court, Second District. He received his Undergraduate Degree in 1969 from Loras College and his Law Degree in 1972 from DePaul University.

Justice Colwell acknowledges the assistance of his law clerks in the preparation of this article.

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Kirk M. Zapp is a law clerk for the Honorable Michael J. Colwell, He received his Undergraduate Degree in 1991 from Arizona State University and his Law Degree in 1994 from Loyola University-Chicago.

James D. Sloan is a law clerk for the Honorable Michael J. Colwell, He received his Undergraduate Degree in 1994 from the University of Illinois and his Law Degree in 1998 from I.I.T./Chicago-Kent.


 
 
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