The Journal of The DuPage County Bar Association

Back Issues > Vol. 12 (1999-00)

Workers’ Compensation Review: Significant Cases for 1999 Term
By Hon. 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 rather than appealing to one of the five appellate districts.

I have had the privilege of being assigned to the Industrial Commission Division since December 1994. Our panel hears oral arguments in Springfield and Chicago seven or eight times per year and then issues the opinions and/or Rule 23 orders for each of the cases. Combined, the Illinois Supreme Court and the Industrial Commission Division issued 41 opinions in 1999. Of those 41, this article reviews the 22 most significant opinions.

ILLINOIS SUPREME COURT CASES

Where the claimant filed a request for summons within the required 20-day period, and where he exhibited proof of payment for the probable cost of the record within the 20-day period but after filing the request for summons, the claimant substantially complied with the requirements of section 19(f)(1).

Jones v. Industrial Comm’n, 188 Ill. 2d 314 (1999) — Section 19(f)(1) of the Workers’ Compensation Act (Act) requires a party seeking judicial review of a Commission decision to file a request to issue summons with the clerk of the circuit court within 20 days of receipt of notice of the decision. Section 19(f)(1) further states that "no request for a summons may be filed and no summons shall issue" unless the party seeking judicial review exhibits to the clerk that he or she has paid the Commission the probable cost of preparing the record of proceedings.

The claimant filed an application for adjustment of claim, alleging substantial work-related injuries. Following a hearing, the arbitrator awarded the claimant compensation. On appeal, the Commission reversed, finding that the claimant failed to timely notify the respondent of his injury.

The claimant’s attorney received the Commission’s decision on October 25, 1996, and filed a request for summons with the circuit court pursuant to section 19(f)(1) of the Act on November 8, 1996. The summons was issued on the same day. On November 14, 1996, the claimant’s attorney filed an affidavit with the clerk of the circuit court stating that the probable cost of preparing the record had been paid. The respondent filed a motion to dismiss the claimant’s appeal, arguing that jurisdiction never vested with the circuit court since the claimant failed to strictly comply with section 19(f)(1). The circuit court agreed with the respondent, and so did the appellate court.

The question before the supreme court was as follows: Does the circuit court obtain jurisdiction over an appeal where the party seeking judicial review filed the request for summons within the required 20-day period, and where he exhibited proof of payment for the probable cost of the record within the 20-day period but after filing the request for summons? The supreme court answered this question in the affirmative. It set a distinction between two types of circumstances: (a) where a party fails to strictly comply with the time restrictions of section 19(f)(1), and (b) where a party fails to strictly comply with the administrative portions of section 19(f)(1). In the former circumstance, subject matter jurisdiction does not vest with the circuit court, since section 19(f)(1)’s time requirements demand strict compliance. In the latter circumstance, by contrast, the circuit court obtains jurisdiction over the case as long as the party seeking review substantially complied with the precepts of section 19(f)(1).

The court concluded that the purpose behind the proof of payment requirement is administrative in nature, as it relieves the Commission of having to contest a summons in a case where the record had not been paid for. According to the court, since the claimant’s attorney did not put the Commission in a position where it had to contest the summons, the claimant substantially complied with the proof of payment requirement, and jurisdiction properly vested in the circuit court. The court therefore reversed the appellate court and remanded the case to the circuit court.

Justice Miller, joined by Chief Justice Freeman and Justice Rathje, dissented, criticizing the majority’s theory of "eventual performance." In the dissent’s view, section 19(f)(1) expressly requires proof of payment prior to the issuance of the summons; where proof of payment comes later, the summons is void and without effect. Because the claimant’s attorney exhibited proof of payment after the summons was issued, the dissent believed the summons was without effect and the circuit court was without jurisdiction over the case.

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A worker is conclusively deemed to have been exposed to occupational disease where he is employed in an occupation in which the hazard of the disease exists; the Commission’s ultimate determination, rather than its original determination, was to be accorded deference; and the employer failed to rebut the statutory presumption that the claimant’s disease arose out of his employment.

Freeman United Coal Mining Co. v. Industrial Comm’n, 188 Ill. 2d 243 (1999) — The claimant filed an application for adjustment of claim pursuant to the Workers’ Occupational Diseases Act (Diseases Act) alleging that as the result of exposure to coal dust, he had contracted coal worker’s pneumoconiosis (CWP) while in the respondent’s employ.

The arbitrator denied the claim, concluding that the claimant failed to prove that he had been exposed to coal dust or that coal dust exposure was causally related to the impairment he claimed. A majority of the Commission affirmed. The circuit court found that the Commission’s decision was against the manifest weight of the evidence on the issue of exposure and disease.

On remand, the Commission reversed the arbitrator’s decision, finding that the claimant’s condition was causally related to an occupational disease arising out of and in the course of his employment and that the claimant was PTD. The circuit court confirmed the Commission’s decision. A majority of the appellate court reversed, holding that the Commission’s initial decision was not against the manifest weight of the evidence.

The supreme court, with one justice dissenting, reversed the judgment of the appellate court. The court first determined that the claimant was not required to present evidence regarding the amount, time, and duration of his exposure to the hazards of an occupational disease because section 1(d) of the Diseases Act provides that one employed in an occupation in which the hazard of the disease exists shall be conclusively deemed to have been exposed to the hazards of the occupational disease. The claimant met the requirements of the statute.

Next, the court held that the appellate court majority improperly determined that the Commission’s initial factual determination was entitled to greater deference than the factual determination the Commission made following remand from the circuit court. According to the court, it is the ultimate determination that should be accorded deference. The court pointed out that the Commission’s initial determination was based on a legally erroneous determination.

Finally, the court noted that where, as here, a miner suffering from CWP is employed in one or more coal mines for 10 years or more, there is a statutory presumption that his CWP arose out of his employment.

Justice Miller dissented. He disagreed with the majority’s conclusion that the Commission’s latter decision was entitled to more deference than its former decision. He noted that a reading of the circuit court’s order indicated that the Commission was required to reach a different result on remand. Moreover, he did not believe that the Commission’s first decision was against the manifest weight of the evidence.

ILLINOIS APPELLATE COURT CASES

Despite the misrepresentations made by the respondent’s representative, the two-year statute of limitations period still barred the employee’s widow from collecting benefits.

Beaudette v. Industrial Comm’n, 308 Ill. App. 3d 188 (1999) — The employee suffered a work-related injury while working for the respondent. He received workers’ compensation benefits until his death on January 18, 1992. On or about January 25, 1992, the decedent’s widow spoke with the respondent’s representative. She was incorrectly informed that because her husband had died, the respondent was no longer required to pay workers’ compensation benefits. On November 3, 1994, the widow filed an application for adjustment of claim. Both the arbitrator and the Commission determined that although the respondent was estopped from asserting the normal statue of limitations under section 6(d) of the Act, the claim was barred by a two-year period of limitations which began on the date that the respondent misinformed the claimant.

Although a majority of the appellate court affirmed, it did so on separate grounds. The court noted that generally an employer is estopped from asserting the statute of limitations when it engages in misleading conduct close to the expiration of the statute of limitations. However, the court explained that where the conduct giving rise to the estoppel ends long before the original statue of limitations expires, estoppel is not a bar to that original statutory period. Here, the applicable period of limitations pursuant to section 6(d) is two years from the date of last payment of compensation. The last compensation was paid on January 18, 1992. The respondent’s representative made the misleading statement around January 25, 1992, after which the respondent engaged in no further misleading conduct. Therefore, the court determined that the two-year statute of limitations barred the claimant’s application.

Two justices dissented based on the dissent in Alexander v. Industrial Comm’n, 306 Ill. App. 3d 1081 (1999), see infra.

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Injuries suffered by a teenage employee when he was struck by a car after exiting employer-provided transport arose out of and in the course of his employment.

Becker v. Industrial Comm’n, 308 Ill. App. 3d 278 (1999) — The respondent hired Randall S. Russell, then 15 years old, as a detasseler. It was customary for the respondent to provide transportation for his employees. On July 17, 1995, the respondent drove Russell home in a rented school bus. In order to drop off Russell, the bus driver parked on the shoulder of the county highway across the road from Russell’s home. Upon exiting the bus, Russell proceeded 5 to 10 feet ahead of the bus to retrieve a newspaper in his mailbox. As he began crossing the street, a car that was attempting to go around the bus struck Russell. Russell’s mother, as claimant, filed an application for adjustment of claim under the Act. The arbitrator awarded compensation, the Commission affirmed, and the trial court confirmed.

The appellate court affirmed. The court noted that injuries incurred while traveling to or from the workplace are not generally considered to "arise out of" and "in the course of" employment. However, an exception arises where the employer expands the range of employment by providing the employee a means of transportation to and from work for the employer’s own benefit. This case fell within the exception. The respondent customarily employed individuals such as high school students who were unable to drive to the workplace. Thus, the respondent’s decision to provide transportation expanded the range of Russell’s employment.

The court rejected the respondent’s contention that Russell’s injuries were not compensable because they did not actually occur while traveling between destinations. The court followed a line of cases holding that an injury is compensable under the Act where an employee is injured in an area near the employer’s premises that is within the employer’s control. Here, the court determined that Russell’s injuries "arose out of" his employment because he encountered a hazardous condition attendant to his employment. That is, the bus obstructed Russell’s view as he crossed the street as well as the view of the driver that hit Russell. Moreover, Russell remained in the course of his employment for a reasonable time after exiting the bus. The court found irrelevant the fact that Russell went to the mailbox before crossing the street. The court reasoned that the location of the bus coupled with Russell’s decision as to where to cross the road created a hazardous condition, and that condition existed even assuming Russell immediately crossed the highway after exiting the bus.

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A claimant, determined by the Commission to be a section 20 "poor person," need not exhibit to the circuit clerk proof of payment of the probable cost of preparing the record.

Jackson v. Industrial Comm’n, 308 Ill. App. 3d 296 (1999) — The pro se claimant filed an application for adjustment of claim, alleging work-related injuries. The arbitrator dismissed the claim, finding that the claimant was not the respondent’s employee. The Commission affirmed in a decision dated February 27, 1998. Seeking administrative review, the claimant filed a request for summons in the circuit court, as well as an application to sue as a poor person. The circuit court denied the application. At a hearing on April 20, 1998, the circuit court orally dismissed the appeal for want of jurisdiction, finding that the claimant failed to present the circuit clerk with proof of payment of the probable cost of preparing the record. Two days later, the claimant filed a motion containing a receipt showing that the Commission granted the claimant section 20 "poor person" status on March 13, 1998. Nonetheless, on April 28, the circuit court entered its order dismissing the appeal.

The issue before the appellate court was whether the claimant, as a section 20 "poor person," was required to exhibit to the circuit clerk proof of payment of the record. The court held that he was not. Section 19(f)(1) states that, "except as otherwise provided by Section 20 of this Act," the party seeking review of the Commission’s decision must exhibit to the clerk of the circuit court proof of payment of the probable cost of preparing the record. Section 20 applies if the Commission finds an employee to be a poor person unable to pay the costs of an appeal. Since section 20 is silent regarding section 19(f)(1)’s "proof of payment" requirement, the court held that a poor person was exempt from having to exhibit to the circuit clerk proof of payment to the circuit clerk. Therefore, according to the court, since the Commission granted him section 20 status on March 13, and since he was granted all of the rights under the Act as of that date, the claimant did not need to exhibit proof of payment. Thus, the circuit court’s jurisdiction was invoked, and the appellate court reversed and remanded the case to the circuit court.

One justice specially concurred. In his view, the circuit court did not dismiss the case because the claimant failed to present proof of payment. Rather, the trial court on April 20 orally granted a motion to strike one of the claimant’s medical documents and instructed the respondent’s attorney to submit a proposed order granting the motion to strike. However, the respondent’s attorney prepared (and the circuit court on April 28 entered) an order finding that the claimant failed to exhibit proof of payment to the Commission for the cost of the record. Since the entered order was incorrect, the dissenting justice would have remanded the cause to the circuit court.

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

Efremidis v. Industrial Comm’n, 308 Ill. App. 3d 415 (1999) — The decedent, a construction laborer, died from a heart attack at age 47. His widow sought death benefits from the respondent, asserting that the decedent’s work was a precipitating cause of his heart attack. The arbitrator agreed with the claimant, but the Commission reversed. The circuit court confirmed the Commission’s decision, and the claimant appealed.

The appellate court affirmed, holding that the Commission’s decision was not against the manifest weight of the evidence because the evidence failed to show that decedent’s work created a higher degree of physical stress as compared to stress attendant in everyday activities. The court noted that the decedent had a number of known risk factors, such as being a male, having high blood pressure, and smoking cigarettes. In addition, the respondent’s medical expert testified that at the time he suffered the heart attack, the decedent was not performing a strenuous activity. His activity consisted of brief movements, lifting, and passing items not more than 50 pounds. The decedent had two to three minutes to rest between each task. The air temperature as measured by paramedics was 64 degrees Fahrenheit. The decedent’s failure to sweat also demonstrated that he was not engaged in steady aerobic activity.

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Injuries sustained while leaving the employer’s premises did not "arise out of" the claimant’s employment where the employer provided a path to the employee parking lot but the claimant elected to take a shortcut.

Dodson v. Industrial Comm’n, 308 Ill. App. 3d 572 (1999) — The claimant left her place of employment through the employee exit. She proceeded down several steps of the concrete sidewalk leading to the employee parking area. Although the stairs and the employee’s sidewalk were in good condition and were not blocked by any obstructions, the claimant decided to leave the sidewalk and take a grassy slope to her car because it was raining, and the grassy slope was the most direct path to her car. On her way to the car, the claimant fell backwards and broke her ankle. The claimant detected ice on her hands as she pushed herself up from the fall. According to the claimant, it was customary for employees to walk down the grassy slope to the parking lot and the respondent acquiesced.

The arbitrator found that the claimant’s injuries were compensable because they occurred while the claimant was leaving the employer’s premises on a customary and permitted route within a reasonable time before or after work. The Commission reversed, reasoning that the claimant’s choice of an alternate route to her car was a personal voluntary act outside the scope of her employment. The circuit court confirmed.

The appellate court affirmed the Commission’s decision, concluding that while the claimant’s injuries occurred in the course of her employment, they did not "arise out of" her employment. The court reasoned that the claimant’s decision to take a shortcut to her vehicle by traversing a grassy slope that was ostensibly wet and icy from rain was a voluntary decision that unnecessarily exposed her to a danger that was entirely separate from her employment responsibilities. The court also noted that the claimant’s choice was personal in nature, designed to serve her own convenience and not the interests of the respondent. The court found irrelevant the fact that the respondent was aware that employees used the same grassy slope to reach the employee parking lot, but never stopped the practice.

One justice dissented. He believed that the claimant’s actions in crossing the grassy slope to reach her vehicle was not unreasonable, especially in light of the weather conditions at the time she left work. The dissent also found significant the fact that the respondent acquiesced in the claimant’s actions.

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The claimant’s settlement of initial workers’ compensation claim was res judicata as to subsequent claim.

J & R Carrozza Plumbing Co. v. Industrial Comm’n, 307 Ill. App. 3d 220 (1999) — On February 7, 1989, the claimant’s decedent was involved in a work-related automobile accident with an uninsured motorist. Tests suggested that the claimant’s decedent suffered some myocardial damage. On November 25, 1989, the claimant’s decedent died while at work. Medical reports and expert testimony conflicted as to the cause of death and whether the February 7 car accident contributed to the death.

On October 5, 1990, the claimant (decedent’s wife) filed a claim for workers’ compensation benefits based on the February 7, 1989, accident. An uninsured motorist (UM) claim was also filed with respect to the February 7, 1989, accident. On December 17, 1991, an arbitrator entered an award on the UM claim whereby the respondent’s insurer paid the decedent’s estate $473,000. On January 31, 1992, a settlement order was entered on the workers’ compensation claim. The settlement order stated:

"In consideration of the payment of $1.00 by respondent and settlement payment by Uninsured Motorists Insurance Carrier to [the claimant] in settlement of her claim against them, [the claimant] agrees to settle out and release forever all claims which she may have against Respondent under the Workers’ Compensation Act for accidental injuries, medical expenses and/or permanent disability and/or death, which stem from an accident which her husband sustained on February 7, 1989, which accident allegedly arose out of and in the course of his employment by Respondent."

On February 18, 1992, the claimant filed another claim under the Act, alleging the decedent’s death was caused by his exertion at work on November 25, 1989. The arbitrator denied recovery, concluding the prior settlement was res judicata as to this claim. The Commission reversed, concluding that the fact that the decedent’s death is noted in the settlement agreement was not conclusive as to the cause of death. The circuit court confirmed.

The appellate court reversed the Commission. The court noted that under the transactional test for determining whether a claim is barred under res judicata, a second suit is barred if a single group of operative facts gives rise to the assertion of relief. The court found that the same transaction, the decedent’s death on November 25, 1989, was at issue in both claims. Moreover, the settlement agreement clearly determined that the February 7, 1989, car accident was the cause of decedent’s death. In addition, interrogatories taken in the UM claim show that the claimant alleged the February 7, 1989, accident caused the decedent’s death. Thus, the court held that the February 18, 1992, claim was barred by the settlement agreement. In so holding, the court cautioned that a settlement award is res judicata as to causation, but not as to the nature and extent of the disability.

Two justices specially concurred. They believed that the claimant was estopped from requesting benefits, and they questioned the applicability of res judicata because the claimant’s second claim for damages was not identical to her first claim. Here, where the claimant took inconsistent positions, the doctrine of judicial estoppel barred her from asserting her second claim.

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The claimant, a seaman, was limited to benefits under the Jones Act and could not pursue workers’ compensation benefits.

Green v. Industrial Comm’n, 307 Ill. App. 3d 271 (1999) – The claimant was an entertainer who performed a show, "The Buddy Green Show," on dinner cruises on the respondent’s 400-passenger excursion boat. The boat traveled the Mississippi and Ohio Rivers. One evening, while doing an Elvis Presley imitation during a performance, the claimant experienced back pains. About two weeks later, he again suffered severe low back pain and spasms, collapsed on stage, and ultimately underwent back surgery.

The arbitrator found that the Jones Act, 46 U.S.C. app. § 688 (1994), was the claimant’s exclusive means of recovery, precluding application of the Workers’ Compensation Act. The Commission agreed with the arbitrator, and so did the circuit court. The claimant appealed.

The appellate court affirmed. It first determined that the Commission’s finding of the claimant as a "seaman" under the Jones Act was not against the manifest weight of the evidence. Even though the claimant did not contribute to the "function" of the boat, the claimant still provided entertainment on the showboat, and thereby played a vital role in the "accomplishment of her mission." Also, because the claimant had worked on the boat for four seasons, five hours a day, six days a week, and because the boat traveled between 15 and 100 miles along the Mississippi and Ohio Rivers per trip, the court found that the claimant was exposed to the perils of the sea. Second, after reviewing several United States Supreme Court cases, the appellate court concluded that an injured seaman is limited to benefits under the Jones Act. Finally, the court rejected the claimant’s "twilight zone" argument—that because the subject matter of the claim was "maritime yet local in character," the claimant could pursue either federal remedies or state workers’ compensation remedies. According to the court, because it contains no language suggesting an intent to complement state workers’ compensation schemes, the Jones Act preempts state law and was the claimant’s exclusive remedy.

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Where the claimant’s Rule 137 motion remained pending in circuit court, the appellate court lacked jurisdiction to hear appeal.

Peabody Coal v. Industrial Comm’n, 307 Ill. App. 3d 393 (1999) — The appellate court dismissed the respondent’s appeal, finding that it was without jurisdiction to hear it. The panel held that the trial court order affirming the Commission’s decision was nonfinal and nonappealable where the claimant’s motion for attorney fees and sanctions pursuant to Supreme Court Rule 137 remained pending in the trial court, and where the trial court order affirming the Commission’s decision did not contain Supreme Court Rule 304(a) language that there was no just reason to delay the appeal.

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Although the Commission has discretion to award attorney fees in excess of 20% of award, its decision to deny attorney fees in excess of 20% was not an abuse of discretion.

DeSalvo v. Industrial Comm’n, 307 Ill. App. 3d 628 (1999) — The claimant suffered a work-related injury and retained a law firm to handle his claim. The claimant was awarded certain benefits. Following completion of the workers’ compensation proceedings, which lasted approximately 17 years, the law firm filed a petition for attorney fees of 40% of the award. After a hearing, the Commission awarded the law firm 20% of the award. The circuit court confirmed, noting that an award of attorney fees in excess of 20% is warranted only where the services provided are extraordinary.

The appellate court affirmed. The panel observed that under the plain language of section 16a(B) of the Act, the Commission is authorized to award attorney fees in excess of 20% of the award after the Commission holds a hearing and determines that the services provided were extraordinary. The court concluded that although language in the order denying the law firm’s request for attorney fees of 40% of the award did not readily indicate whether the Commission was aware that it had the authority to award attorney fees in excess of 20%, the Commission has previously awarded fees in excess of 20%. Further, the court noted that if the Commission did not believe it had the authority to award attorney fees in excess of 20%, it would not have held a hearing on the law firm’s petition. Moreover, the Commission is presumed to follow the law. Finally, the court determined that the Commission did not abuse its discretion in denying fees in excess of 20% because the law firm did not present sufficient evidence that its services were extraordinary.

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Where the claimant was hired to work at a picnic, injuries sustained while dancing did not arise out of his employment; the respondent did not have the right under the Act to recover TTD payments made to the claimant.

Karastamatis v. Industrial Comm’n, 306 Ill. App. 3d 206 (1999) — The claimant was hired by a Greek Orthodox Church to work at the church’s three-day picnic. The claimant set up tents, cleaned, and stocked beer and food. On the evening of the third day of the picnic, the claimant asked John Pronus, the church’s vice-president, if he could join the other workers and guests dancing. Pronus said, "Go ahead." The claimant then proceeded to lead the group in a dance, at which time he slipped and fell backwards and injured his knee.

The arbitrator denied compensation, finding that the claimant failed to prove he sustained an accidental injury arising out of and in the course of his employment. Although it did not directly address the "in the course of" issue, the Commission affirmed the arbitrator’s finding that the claimant’s injury did not arise out of his employment. The circuit court confirmed.

The appellate court affirmed, noting that the claimant was hired to work at the picnic, not to dance at it. Since the claimant voluntarily exposed himself to injury from dancing, and since the risk of injury was not peculiar to the claimant’s work or incidental to his employment, the claimant’s injuries did not "arise out of" his employment. Although the claimant also argued that his injuries should have been compensable under the personal comfort doctrine, the court dismissed that argument, since the doctrine is an "in the course of" concept having no affect on an "arising out of" finding. Finally, the court rejected the respondent’s argument on cross-appeal that it should be entitled to recoup the medical and TTD payments it made to the claimant. The court reasoned that since the Act does not give the Commission, circuit court, or the appellate court the authority to order such a reimbursement, the only way for the respondent to recoup those payments was by filing an action against the claimant in the circuit court.

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Following an interlocutory appeal, appellate court held: (1) it was without jurisdiction to entertain an appeal decided by only one commissioner; (2) the law in effect at time of the employee’s death allowed his widow to bring asbestos-related claim under the Workers’ Compensation Act; (3) Section 1(f) of the Workers’ Occupational Diseases Act does not apply to claims of injury from asbestos exposure under the Workers’ Compensation Act; and (4) the request for summons and required fees was timely filed.

Westinghouse Airbrake Co. v. Industrial Comm’n, 306 Ill. App. 3d 853 (1999) — This case involved a consolidated appeal. In 1978, the claimant Lyle Heller retired from his employment with respondent, Howard Printing Co. In 1992, Lyle filed an application for adjustment of claim under the Workers’ Occupational Diseases Act (Diseases Act) seeking benefits for exposure to asbestos while working for Howard Printing. Lyle then filed a second application against Howard Printing. Subsequently, he amended his applications to include respondent CNA Insurance and to seek benefits under the Workers’ Compensation Act (Act) rather than the Diseases Act. Lyle died in 1994. In 1995, Lyle’s widow, Bertha, filed an application for adjustment of claim pursuant to the Act.

Lawrence H. Brook ceased working for respondent, Westinghouse Airbrake Co., on January 31, 1976. Lawrence died in 1993. In 1995, Lawrence’s widow, Ophie, filed an application for adjustment of claim against Westinghouse seeking benefits under the Act for exposure to asbestos during his employ.

In each case, the arbitrator dismissed the claimants’ applications, finding that the claimants improperly filed their claims under the Act and that the statute of limitations in section 1(f) of the Diseases Act barred their claims. The claimants appealed, and the Commission affirmed. The circuit court consolidated the cases and then reversed and remanded. The circuit court also granted the parties’ motion for a Supreme Court Rule 308(a) finding.

The appellate court granted the claimants’ petitions for leave to appeal under rule 308(a) and consolidated the appeals. First, the court determined that it was without jurisdiction to hear the Brook appeal. In Brook, the parties waived their right to oral argument before the Commission and agreed to have only one commissioner decide the appeal. The failure to comply with section 19(e) of the Act and have a majority of a panel of three members of the Commission decide the appeal rendered the decision invalid. Moreover, the court held that parties cannot usurp the legislature’s authority to enact laws by voluntarily waiving the Act’s requirements.

The court then turned to the Heller appeal and the three certified questions it was asked to decide. The panel noted that the Act was amended in 1984 to permit claims for accidental injuries caused by exposure to asbestos and claims for accidental injuries caused by exposure to asbestos which result in death. Therefore, the court concluded that pursuant to section 6(d) of the Act as it existed in 1994, Bertha could maintain her claim for injuries sustained by her husband as a result of asbestos exposure. However, the court dismissed Lyle’s claims because the provisions of the Act which permit recovery for injuries due to exposure to asbestos did not exist as of the date of his injury in 1978, his date of last exposure.

Next, the court determined that section 1(f) of the Diseases Act does not apply to injuries sustained as a result of exposure to asbestos. Rather, section 1(f) applies only to claims for occupational disease caused by the inhalation of asbestos dust.

Finally, the court concluded that the circuit court had jurisdiction to hear Bertha’s claim. Although the clerk of the circuit court did not file-stamp the request for summons until the morning after it was due, Bertha’s summons and required fees were delivered to the circuit court clerk’s office on time. The clerk’s actions in failing to promptly file-stamp the documents was unexplained.

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Under section 19(e), a replacement commissioner may sign a decision of the Commission only if there is reliable evidence in the record to establish how the departing commissioner voted.

Alexander v. Industrial Comm’n, 306 Ill. App. 3d 1081 (1999) — The claimant sustained work-related injuries. Following a hearing, the arbitrator found that he was permanently partially disabled to the extent of 50%. The claimant requested oral argument before the Commission, and his petition for review was heard by Commissioners Ketter and Tansor and Acting Commissioner Hagan on October 23, 1996. The Commission issued its decision on January 21, 1997, just over one month after Acting Commissioner Hagan’s term had expired. Commissioner Ketter authored the majority opinion, adopting and affirming the arbitrator’s decision. Writing that he would have found the claimant TTD, Commissioner Tansor dissented. Finally, Acting Commissioner Kane, who was appointed to fill Hagan’s vacancy, specially concurred, stating that a majority of the panel had reached a decision prior to Hagan’s departure, and that he (Kane) was signing the decision pursuant to Zeigler v. Industrial Comm’n, 51 Ill. 2d 137 (1972).

On appeal to the circuit court, the claimant argued that the Commission’s decision was void because it did not comply with section 19(e) of the Act, which provides, "In the event either party requests oral argument, such argument shall be had before a panel of 3 members of the Commission ***. *** A decision of the Commission shall be approved by a majority of Commissioners present at such hearing." The circuit court disagreed with the claimant, found Zeigler controlling, and confirmed the Commission. The claimant appealed.

The appellate court began with a review of Zeigler. There, oral argument was had before five commissioners, three of whose terms expired before the decision was issued, and the three replacement commissioners signed the written order. The supreme court found that the Commission’s decision complied with section 19(e), which at the time required the Commission only to "file in its office its decision" following oral argument. Emphasizing that one of the departing commissioners had recorded the Commission’s decision on the case’s file jacket, the Zeigler court reasoned that memorializing the decision into a written document was simply a ministerial function done after the decision is made.

The appellate court held that the rationale behind Zeigler (i.e., that where there is evidence of the departing commissioner’s decision, a replacement commissioner may sign in his or her stead) applied to the new version of section 19(e). The court took note of the fact that although it amended section 19(e) several times since Zeigler, the legislature did not require the Commission to have its decisions "signed" by a majority of the Commissioners present at oral argument. Nonetheless, since there was no evidence of how Acting Commissioner Hagan voted, the appellate court remanded the case to the circuit court to take evidence on how Acting Commissioner Hagan voted.

Two justices dissented, writing that they did not believe Zeigler applied since it interpreted a "quite different version of section 19(e)." The dissent found that the present version of section 19(e) was unambiguous. Since the decision was not approved by a majority of the commissioners present at the hearing, the dissent would have dismissed the appeal for want of jurisdiction and remanded the cause to the Commission for an issuance of a valid decision.

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The claimant’s failure to file a petition for review from the arbitrator’s corrected decision divested the Commission of jurisdiction.

Campbell-Peterson v. Industrial Comm’n, 305 Ill. App. 3d 80 (1999) — The claimant filed an application for adjustment of claim for injuries sustained while employed by the respondent. On September 27, 1996, the arbitrator’s decision was filed with the Commission. On October 22, 1996, the parties received the decision. On October 24, 1996, the respondent filed a motion to correct the arbitrator’s decision due to a "clerical/computer error" that omitted portions of the decision concerning entitlement to TTD benefits. On October 29, 1996, the claimant filed with the Commission a petition for review of the arbitrator’s decision. The arbitrator granted the respondent’s motion to correct. On January 15, 1997, the Commission issued a notice stating that the arbitrator’s September 1996 decision was being recalled. On the same date, the arbitrator issued a corrected decision. The claimant did not file a petition for review from the corrected decision.

On December 11, 1997, the Commission determined that the claimant failed to perfect review pursuant to section 19(f) of the Act. Thus, the Commission dismissed the claim based upon a lack of jurisdiction. The circuit court granted the respondent’s motion to dismiss the matter based on lack of jurisdiction.

The appellate court affirmed. The court noted that the language of section 19(f) is unambiguous. Pursuant to section 19(f), where a corrected decision is issued, the time for review begins to run from the date of the receipt of the corrected award or decision. The court found that strict compliance with section 19(f) was necessary in order to effectuate the goal of the statute, i.e., to notify the Commission and the parties. Since the claimant failed to file for review from the corrected decision within 15 days as required by section 19(f), the Commission was without jurisdiction to hear the claimant’s appeal.

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Because the manner in which the claimant drove the all-terrain vehicle was not reasonable and foreseeable, his injuries were not compensable.

Jensen v. Industrial Comm’n, 305 Ill. App. 3d 274 (1999) The claimant, a pilot, was at his employer’s estate in Michigan on a business trip. With the employer’s consent, the claimant and his co-pilot took two of the employer’s all-terrain vehicles (ATVs) for a ride. The claimant had learned to ride an ATV on a previous trip to the estate. Soon after beginning their ride, the claimant and his co-pilot left the employer’s property and drove along a dusty county road. The claimant drove past his co-pilot, struck a tree and sustained serious injuries.

The arbitrator found that the claimant was an independent contractor and denied benefits. The Commission affirmed, and the circuit court confirmed. Nonetheless, after finding an employer-employee relationship, the appellate court remanded the case to the Commission. On remand, the Commission found that the claimant failed to prove he suffered injuries arising out of and in the course of his employment. In particular, the Commission determined that the manner in which the claimant drove the ATV was not reasonable and foreseeable. The circuit court confirmed, and the claimant appealed.

The appellate court affirmed. It noted that the claimant was a traveling employee and held that the evidence supported the Commission’s finding that the claimant’s use of the ATV was unreasonable and unforeseeable. Specifically, the court emphasized that the claimant was riding on a county road he had never been before, was not wearing a helmet, and was driving too fast for conditions. The road was dusty, the co-pilot estimated that the claimant was driving between 30 and 50 miles per hour, and there was evidence that the claimant was driving a newer and more powerful ATV.

Two justices dissented. They determined that the employer should have known the claimant would ride the ATV in the manner he did, because the claimant learned to ride an ATV on a prior trip to the estate, because the claimant had never worn a helmet, and because the employer provided the ATV for the claimant’s use. According to the dissent, the claimant’s conduct was not unreasonable, given that one could reasonably expect the claimant to use the ATV without a helmet and in unfamiliar territory, and given that speed alone does not disqualify a claimant from coverage under the Act. Finally, the dissent raised its concern that the majority opinion compromised the Act’s goal of eliminating contributory negligence.

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Since amendment to Pension Code was not a mere clarification, pre-amendment version of Pension Code provision applied to bar fire fighter from collecting benefits.

Nelson v. Industrial Comm’n, 305 Ill. App. 3d 651 (1999) — The claimant, a fire fighter for the respondent village, sought benefits for a 1985 injury to his back and an aggravation of that injury through 1987. The arbitrator found that the claims were barred by Village of Winnetka v. Industrial Comm’n, 232 Ill. App. 3d 351 (1992) (holding that once a municipality enacts an ordinance pursuant to section 22-306 of the Pension Code, section 22-307 of the Pension Code precludes a municipally-employed fire fighter or police officer from pursuing benefits under the Act). The Commission affirmed, and the circuit court confirmed.

On appeal, the claimant argued that a November 1997 amendment to section 22-307 of the Pension Code was designed to "clarify" the version of section 22-307 interpreted in Village of Winnetka. The amendment expressly allows injured fire fighters and police officers to pursue workers’ compensation benefits even though their municipal employer enacted an ordinance pursuant to section 22-306. Thus, while the version of section 22-307 which the court interpreted in Village of Winnetka was applicable to his claim, the claimant urged the appellate court to apply the law as "clarified" by the 1997 amendment.

The appellate court declined the claimant’s invitation and affirmed. The court found that the amendment to section 22-307 was not meant as a mere clarification of the previous version of the statute. First, the court noted that the original version of the statute was not ambiguous. Second, the court determined that the legislative history of the amendment did not indicate that the amendment was intended to clarify the original version of the statute. In fact, in reviewing the amendment’s legislative history, the court located strong evidence that the original version of section 22-307 barred workers’ compensation claims and that the amendment was meant to lift that bar. The court also found support for its finding in the timing of the legislature’s actions. The Village of Winnetka decision was filed on February 7, 1992. The amendment to section 22-307 was first passed by the House of Representatives on May 8, 1997. The court determined that the failure to swiftly remedy its interpretation of section 22-307 also indicated that the amendment was a change in law and not a clarification.

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The respondent’s failure to include the claimant’s last known address in the request to issue summons did not deprive the circuit court of subject matter jurisdiction over the claim.

Forest Preserve District of Cook County v. Industrial Comm’n, 304 Ill. App. 3d 506 (1999) After the Commission awarded the claimant compensation, the respondent attempted to appeal to the circuit court. The respondent filed with the clerk of the circuit court (a) a request to issue summons, (b) a summons to the claimant’s attorneys, (c) a summons to the Commission, and (d) a certificate of mailing, all of which contained the correct case caption. The request to issue summons named the claimant and the Commission as parties in interest but omitted the claimant’s address. The request listed the name and address of the law firm representing the claimant and the address of the Commission. The summons mentioned the claimant’s name twice, once in the case caption and once in the body. The claimant was never served with a summons, but his attorneys were.

The claimant moved the circuit court to quash the summons, arguing that the respondent’s request to issue summons did not comply with section 19(f)(1), which states in pertinent part that "the written request shall contain the last known address of other parties in interest and their attorneys of record who are to be served by summons." According to the claimant, the respondent’s failure to include the claimant’s last known address in the request to issue summons divested the circuit court of subject matter jurisdiction over the claim. The circuit court agreed with the claimant and dismissed the appeal.

The appellate court reversed and remanded the claim back to the circuit court, holding that the respondent substantially complied with section 19(f)(1) by providing all of the necessary information in the request to issue summons except for the claimant’s last known address. According to the appellate court, because the claimant’s attorneys were served with summons in their representative capacities, and because the summons mentioned the claimant’s name twice, the request to issue summons contained sufficient information from which the clerk could notify the claimant and his attorneys of the appeal. The court also found that the circuit court had personal jurisdiction over the claimant. Although the claimant was never personally served with summons, his attorneys were, and proper service of process is had under section 19(f)(1) by the clerk of the court’s mailing of the summons to "parties in interest or their attorney or attorneys of record."

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Where a remand order was implicit in the circuit court’s decision, the decision was not final and appealable, and the appellate court lacked jurisdiction to consider an appeal from that decision.

Kendall County Public Defender’s Office v. Industrial Comm’n, 304 Ill. App. 3d 271 (1999) — The claimant, a part-time Kendall County public defender, fell while demonstrating part of a field sobriety test, and sustained leg injuries from his fall. The arbitrator found the claimant entitled to 90 weeks of PPD benefits for a 45% loss of use of his left leg. In calculating the claimant’s average weekly wage, the arbitrator included the claimant’s earnings as both a public defender and a private attorney. The respondent appealed, and the Commission affirmed and adopted the arbitrator’s decision.

The respondent again appealed, and the circuit court confirmed the Commission’s decision in part and reversed it in part. The circuit court found that the claimant’s earnings from his private practice should not have been included in the calculation of his average weekly wage. The circuit court neither recited a recalculated average weekly wage figure nor remanded the cause for the Commission to recalculate the figure.

The respondent appealed, maintaining that the claimant’s fall did not arise out of his employment. The appellate court, however, determined that the circuit court’s decision was not a final order, and therefore dismissed the appeal for want of jurisdiction. The appellate court held that since the circuit court did not recite a recalculated average weekly wage figure, an order remanding the matter to the Commission for a recalculation of average weekly wage was implicit in the circuit court’s decision. The appellate court therefore remanded the cause to the Commission to recalculate the figure.

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Where there was no evidence that the claimant paid the Commission the probable cost of preparing the record, the circuit court lacked subject matter jurisdiction to review the Commission’s decisions.

Perry v. Industrial Comm’n, 304 Ill. App. 3d 284 (1999) – The claimant filed two applications for adjustment of claims, alleging work-related injuries on two separate dates. The arbitrator denied compensation in both claims, and the Commission affirmed and adopted the arbitrator’s decision in both matters. The claimant appealed, and the circuit court confirmed both decisions. The claimant appealed.

The appellate court dismissed the appeal, holding that the claimant failed to comply with section 19(f)(1) in appealing the Commission’s decision to the circuit court. Section 19(f)(1) requires the party seeking review of the Commission’s decision to exhibit to the clerk of the circuit court proof of payment of the probable cost of the preparing the record. The court noted that compliance with the requirements of section 19(f)(1) must appear in the record. However, since the record contained no evidence indicating that the claimant’s attorney paid the Commission the probable cost of preparing the record, the appellate court held that the circuit court did not have subject matter jurisdiction to review the Commission’s decisions.

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The Commission lacks the statutory authority to review final orders of the appellate court to determine if the employer’s appeal was frivolous.

Siddens v. Industrial Comm’n, 304 Ill. App. 3d 506 (1999) — In July 1992, the appellate court affirmed the Commission’s award of wage-differential benefits to the claimant. In August 1992, the claimant filed a petition with the Commission seeking attorney fees and penalties for the employer’s allegedly frivolous appeals in the underlying claim. The Commission denied the claimant’s petition, but the circuit court reversed, finding that the employer’s previous appeals were in fact frivolous. The circuit court remanded the cause to the Commission for a determination of attorney fees, penalties, and costs.

The Commission awarded the claimant approximately $39,000 in penalties and $7,800 in attorney fees, but on administrative review the circuit court again reversed the Commission’s decision, stating that the Commission’s award was too low. In an October 1996 order, the circuit court remanded the matter to the Commission and recited specific figures for the Commission to award the claimant. However, before the Commission took any action on remand, the claimant filed a motion for declaratory judgment in the circuit court, seeking declarations that the circuit court’s October 1996 order was final but no longer appealable and that the Commission’s two previous decisions were made fraudulently. The circuit court granted the first form of relief sought by the claimant, and the claimant, the employer, and the Commission appealed.

The appellate court first stated that the Commission is an administrative agency with limited statutory authority and that when the Commission exceeds that authority, the resulting order or judgment is void. The court then noted that the appellate court had rendered a final judgment in July 1992 and that the claimant alleged in his August 1992 petition for attorney fees and penalties only that the employer’s appeals in the underlying litigation were frivolous. Based on a review of Krantz v. Industrial Comm’n, 289 Ill. App. 3d 447 (1997), the appellate court held that the Commission lacked the statutory authority to review the appellate court’s July 1992 decision to determine whether the employer’s appeals in the underlying litigation were frivolous. All of the decisions the Commission and circuit court made after August 1992 were therefore declared null and void.

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There is no requirement that the manifestation date of a repetitive-trauma injury must fall during employment.

A.C. & S. v. Industrial Comm’n, 304 Ill. App. 3d 875 (1999) — The claimant began working for the respondent, installing heat and frost insulation, in February 24, 1993. He had done similar work for the 22 years prior to that date. In the spring of 1993, the claimant began feeling numbness, tingling, and aching in both hands, but he never informed the respondent about his problems. The claimant was laid off on June 10, 1993, though not for medical reasons. He visited a doctor one week later, and on June 22, 1993, the doctor told him that he had carpal tunnel syndrome. Based on the claimant’s work history, the doctor opined that the claimant was predisposed to getting carpal tunnel syndrome before beginning work for the respondent. Also on June 22, 1993, the doctor’s secretary telephoned the respondent and informed it of the doctor’s diagnosis.

The arbitrator denied benefits since the date of accident fell outside the time period the claimant worked for the respondent. The Commission reversed the arbitrator, finding that the claimant sustained a work-related injury on June 22, 1993. In awarding the claimant compensation, the Commission concluded that the date an injury manifests itself need not fall within the period of employment. The circuit court, however, reached the exact opposite conclusion and reversed the Commission. The claimant appealed.

The appellate court reversed the circuit court and reinstated the Commission’s decision. According to the court, the injury date in a repetitive-trauma case (like the claimant’s) is the date on which the injury "manifests itself," or becomes apparent to a reasonable person. Based on Illinois case law and on the modern rule of law, the court held that a claimant can be compensated for a repetitive-trauma injury which manifested itself after the claimant stopped working for the respondent, as long as there is a causal connection between the injury and the employment. In this case, the manifestation date of the claimant’s injury was June 22, 1993 (the date the doctor told the claimant of his carpal tunnel syndrome), and, in the court’s view, the evidence was sufficient to support the Commission’s finding that the claimant’s syndrome was either caused or aggravated by his work for the respondent. Finally, the court found that the claimant notified the respondent of the claim within the requisite 45-day period following the accident. The accident occurred on June 22, 1993, and the respondent was notified that very day.

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, James D. Sloan and Cary P. Collender, in the preparation of this article.

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 the Chicago-Kent College of Law.

Cary P. Collender is a law clerk for the Honorable Michael J. Colwell. He received his Undergraduate Degree in 1991 from the University of Illinois and his Law Degree in 1994 from the Northern Illinois University College of Law.


 
 
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