NO. 4-09-0753 Filed 6/21/10
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
CHARLES DALLAS, ) Appeal from Plaintiff-Appellee and ) Circuit Court of Cross-Appellant, ) Sangamon County v. ) No. 09MR123 AMEREN CIPS, ) Defendant-Appellant and ) Honorable Cross-Appellee. ) Patrick W. Kelley, ) Judge Presiding. _________________________________________________________________
PRESIDING JUSTICE MYERSCOUGH delivered the opinion of
the court:
Defendant, Ameren CIPS, appeals an order of the circuit
court entering judgment for plaintiff, Charles Dallas, pursuant
to an application for entry of judgment filed by plaintiff under
section 19(g) of the Workers' Compensation Act (Act) (820 ILCS
305/19(g) (West 2008)). Plaintiff cross-appeals, seeking costs
and attorney fees on appeal. For the reasons that follow, we
affirm the circuit court and deny plaintiff's request for costs
and attorney fees on appeal.
I. BACKGROUND
On December 14, 1998, plaintiff suffered an injury to
his back while working for defendant. On June 24, 2004, follow-
ing a hearing, an arbitrator issued a decision granting plaintiff
benefits under the Act.
The arbitrator found plaintiff had a compensable injury that resulted in two lumbar surgeries. Permanent restrictions
placed on plaintiff precluded him from returning to his work with
defendant as a lineman or his previous work as a farm laborer.
Although the arbitrator found plaintiff did not meet his burden
of proof in establishing permanent total disability, plaintiff
did qualify for a wage differential (permanent wage loss) under
section 8(d)(1) of the Act (820 ILCS 305/8(d)(1) (West 2002)).
Specifically, the arbitrator made the following finding on the
disputed issue of the nature and extent of the injury:
"It is found [plaintiff] has sustained
his burden of proof in establishing entitle-
ment to a permanent wage loss under [s]ection
8(d)(1) of the Act as of [the] date of maxi-
mum medical improvement, January 9, 2003.
This wage differential of $465.67 begins as
of January 9, 2003[,] and shall apply as long
as the disability lasts."
The arbitrator ordered defendant to pay plaintiff temporary total
disability benefits of $811.94 per week for 177 4/7 weeks (August
12, 1999, through January 9, 2003). The arbitrator also ordered
defendant to pay plaintiff as follows:
"the sum of $456.67 [sic] per week for a
further period of 68 6/7 weeks, as provided
in section 8(d)(1) of the Act because the
- 2 - injuries sustained caused [w]age loss, lim-
ited to the maximum PPD rate as set forth
above of $465.67, from 01/09/03 through the
date of trial, and ongoing thereafter for the
duration of the disability." (Emphasis in
original.)
Neither party filed a petition for review of the arbitrator's
decision. The arbitrator's decision, therefore, became the
decision of the Illinois Workers' Compensation Commission (Com-
mission). See 820 ILCS 305/19(b) (West 2002) (unless a petition
for review is filed within 30 days, the arbitrator's decision
shall become the decision of the Commission and, absent fraud,
shall be conclusive). (For the sake of clarity, this court will,
like the parties, continue to refer to the decision as the
arbitrator's decision.)
On March 25, 2009, plaintiff filed in the circuit court
an application for entry of judgment pursuant to section 19(g) of
the Act (820 ILCS 305/19(g) (West 2008)). In the application for
entry of judgment, plaintiff asserted that no review of the
arbitrator's decision was pending and the time for review of the
arbitrator's decision had passed. Plaintiff also alleged defen-
dant was "out of time to challenge the arbitrator's decision or
pursue any action to assert the disability of the employee has
subsequently recurred, increased, diminished, or ended."
- 3 - Plaintiff further alleged that defendant paid the
weekly wage-differential benefits to plaintiff for several years
in accordance with the arbitrator's decision. However, on
January 24, 2009, defendant informed plaintiff the weekly wage-
differential payments would be terminated. Plaintiff had not
received weekly wage-differential payments since the end of
January 2009. Plaintiff sought entry of judgment and an award of
costs and attorney fees.
On April 22, 2009, defendant filed a responsive plead-
ing. Defendant agreed that (1) the time for review of the
arbitrator's decision had passed, (2) defendant had complied with
the arbitrator's decision until "the recent developments, ques-
tioning how long the disability has lasted," (3) defendant
notified plaintiff as to the basis and date of termination of the
wage-differential benefits, and (4) no benefits had been paid as
of the date of the termination of the wage-differential benefits.
Defendant disputed that defendant was out of time to challenge
the arbitrator's decision or pursue any remedy, "in view of
evidence subsequently gathered questioning whether the disabil-
ity, that served as premise for the [d]ecision, has continued."
Defendant also disputed whether the failure to pay was improper
and its responsibility for costs and attorney fees.
On June 18, 2009, plaintiff filed a motion for judgment
on the pleadings. On that same date, defendant filed a motion
- 4 - for leave to file "[c]ounterclaim/[a]ffirmative [d]efenses for
[e]quitable [r]elief" (hereinafter referred to as the counter-
claim). Defendant attached to its motion for leave a proposed
counterclaim for equitable relief.
In the motion for leave, defendant alleged that follow-
ing plaintiff's injury, plaintiff was unable to return to work as
a lineman for defendant. After expiration of the time for review
of the arbitrator's decision, plaintiff obtained full-time
employment as a lineman at an hourly rate in excess of his rate
of pay with defendant. Defendant believed plaintiff's alleged
disability had ended or diminished. Therefore, in January 2009,
defendant terminated plaintiff's wage-differential benefits.
Defendant further asserted it had no adequate remedy at
law because the time for review had passed. Defendant argued
plaintiff was entitled to the wage-differential benefits only so
long as the disability lasted, and, because plaintiff was no
longer incapacitated from working as a lineman, plaintiff was not
entitled to receive the wage-differential benefits. Defendant's
proposed counterclaim sought an order that (1) defendant was no
longer obligated to pay plaintiff wage-differential benefits and
(2) the wage-differential benefits received by plaintiff after he
became reemployed as a lineman should be held in constructive
trust for the benefit of defendant and conveyed to defendant.
Defendant also filed a motion seeking to stay entry or enforce-
- 5 - ment of judgment under section 19(g) until the court determined
whether defendant was entitled to equitable relief.
On July 2, 2009, plaintiff filed a motion to strike
defendant's motions for leave and for a stay. Plaintiff argued
the circuit court only had jurisdiction to determine whether the
requirements of section 19(g) of the Act had been met and enter
the workers' compensation award as a civil court judgment.
On July 8, 2009, the circuit court held a hearing. No
transcript, bystander's report, or agreed statement of facts
pertaining to this hearing has been provided on appeal.
On September 1, 2009, the circuit court entered an
order denying (1) defendant's motion for leave to file the
counterclaim, (2) defendant's motion for stay, and (3) plain-
tiff's motion to strike defendant's motions. The court granted
plaintiff's motion for judgment on the pleadings. The court
entered judgment in favor of plaintiff and against defendant (1)
in accordance with the arbitrator's decision and (2) in the
amount of $5,705.50 for attorney fees and costs.
On October 1, 2009, defendant filed a notice of appeal.
On October 7, 2009, plaintiff filed a notice of cross-appeal for
the purpose of requesting additional fees and costs on appeal.
II. ANALYSIS
A. Issues Raised in Defendant's Appeal
In its direct appeal, defendant argues (1) defendant is
- 6 - without an adequate remedy at law and a court of equity should
determine whether defendant must continue to pay benefits to
plaintiff and (2) defendant should have been granted leave to
amend.
Generally, a trial court's decision on whether to grant
leave to file a counterclaim or an affirmative defense is re-
viewed for an abuse of discretion. See, e.g., Todd W. Musburger,
Ltd. v. Meier, 394 Ill. App. 3d 781, 796, 914 N.E.2d 1195, 1210
(2009) (involving leave to file amended affirmative defenses);
Trustees of Schools of Township 42 North, Range 11, East of Third
Principal Meridian, Cook County, Illinois v. Schroeder, 8 Ill.
App. 3d 122, 124, 289 N.E.2d 247, 249 (1972) (holding that the
"trial court had discretion to allow or deny filing of the
counterclaim" postdecree). Here, however, the issue raised by
defendant requires statutory construction--whether the Act
permitted such a defense in an action under section 19(g) of the
Act. Therefore, our review is de novo. See, e.g., Cassens
Transport Co. v. Illinois Industrial Comm'n, 218 Ill. 2d 519,
524-25, 844 N.E.2d 414, 418-19 (2006) (reviewing de novo whether
the Commission had jurisdiction to reopen a 10-year-old wage-
differential award de novo because the case required interpreta-
tion of section 8(d)(1) of the Act).
"Proceedings under the Workers' Compensation Act are
purely statutory, and courts can obtain jurisdiction only in the
- 7 - manner provided by that Act." Beasley v. Industrial Comm'n, 198
Ill. App. 3d 460, 464, 555 N.E.2d 1172, 1174 (1990); see also
Kavonius v. Industrial Comm'n, 314 Ill. App. 3d 166, 169, 731
N.E.2d 1287, 1290 (2000) (noting that circuit courts exercise
special statutory jurisdiction in workers' compensation proceed-
ings and strict compliance with the statute is required to vest
the court with subject-matter jurisdiction). Section 19(g) of
the Act gives circuit courts the authority to render judgment in
accordance with an award or decision of the Commission when a
certified copy of the decision is presented to the court. Ahlers
v. Sears, Roebuck Co., 73 Ill. 2d 259, 264, 383 N.E.2d 207, 209
(1978). Section 19(g) provides as follows:
"Except in the case of a claim against
the State of Illinois, either party may pres-
ent a certified copy of the award of the
[a]rbitrator, or a certified copy of the
decision of the Commission when the same has
become final, when no proceedings for review
are pending, providing for the payment of
compensation according to this Act, to the
Circuit Court of the county in which such
accident occurred or either of the parties
are residents, whereupon the court shall
enter a judgment in accordance therewith. In
- 8 - a case where the employer refuses to pay
compensation according to such final award or
such final decision upon which such judgment
is entered[,] the court shall in entering
judgment thereon, tax as costs against him
the reasonable costs and attorney fees in the
arbitration proceedings and in the court
entering the judgment for the person in whose
favor the judgment is entered, which judgment
and costs taxed as herein provided shall,
until and unless set aside, have the same
effect as though duly entered in an action
duly tried and determined by the court, and
shall with like effect, be entered and dock-
eted." 820 ILCS 305/19(g) (West 2008).
Section 19(g) is "designed to permit speedy entry of
judgment on an award." Aurora East School District v. Dover, 363
Ill. App. 3d 1048, 1055, 846 N.E.2d 623, 629 (2006). The circuit
court's inquiry is limited to determining whether the require-
ments of section 19(g) have been met. Ahlers, 73 Ill. 2d at 268,
383 N.E.2d at 211. The court cannot question the jurisdiction of
the Commission, question the legality of the Commission's ac-
tions, review the Commission's decision, or "otherwise construe
the Act, even if the decision appears too large on its face."
- 9 - Aurora East School District, 363 Ill. App. 3d at 1055, 846 N.E.2d
at 629; see also Ahlers, 73 Ill. 2d at 268, 383 N.E.2d at 211
(the court can refuse to "enter judgment only, for example, when
a lack of jurisdiction appears on the face of the record"). The
only defense to a section 19(g) petition is full payment of the
final award. Aurora East School District, 363 Ill. App. 3d at
1055, 846 N.E.2d at 630.
In this appeal, defendant does not challenge whether
the requirements of section 19(g) have been met; nor does defen-
dant assert that full payment has been tendered. Defendant only
challenges the circuit court's refusal to consider defendant's
claim that plaintiff was no longer entitled to a wage-differen-
tial payment.
Such an argument is not appropriately raised in a
section 19(g) proceeding. See McCormick v. McDougal-Hartmann
Co., 47 Ill. 2d 340, 343, 265 N.E.2d 610, 612 (1970) (employer
could not raise, in an action to enforce an award of compensation
under section 19(g), its claim that it was entitled to credit for
recovery the employee received from a third party); Franklin v.
Wellco Co., 5 Ill. App. 3d 731, 734, 283 N.E.2d 913, 915 (1972)
("An employer cannot have the award reviewed by filing an answer
in an action brought by the employee under section 19(g) to
enforce the award"). Therefore, the circuit court did not have
jurisdiction to review the award and did not err by denying
- 10 - defendant leave to file its counterclaim.
Defendant was not without a remedy. As noted, the
arbitrator awarded plaintiff a wage differential pursuant to
section 8(d)(1) of the Act (820 ILCS 305/8(d)(1) (West 2002)).
Section 8(d)(1) of the Act "provides that an employee who is
partially incapacitated from pursuing his usual and customary
line of employment shall receive a portion of the difference
between his former wages and the wages he earns or is able to
earn in his new employment." Cassens, 218 Ill. 2d at 522, 844
N.E.2d at 417, citing 820 ILCS 305/8(d)(1) (West 2002). "An
employee receiving an installment award under section 8(d)(1) is
entitled to compensation 'for the duration of his disability.'"
Cassens, 218 Ill. 2d at 522, 844 N.E.2d at 417, quoting 820 ILCS
305/8(d)(1) (West 2002).
Section 8(d)(1) itself does not "authorize the Commis-
sion to reopen final installment awards for partial disability."
Cassens, 218 Ill. 2d at 528, 844 N.E.2d at 421. However, under
section 19(h) of the Act, the Commission has the authority, for a
proscribed period of time, to review an installment award. See
Alvarado v. Industrial Comm'n, 216 Ill. 2d 547, 555, 837 N.E.2d
909, 915 (2005) (under section 19(h), where the employee's
disability has recurred, increased, diminished, or ended, the
Commission may review an award); Eschbaugh v. Industrial Comm'n,
286 Ill. App. 3d 963, 966, 677 N.E.2d 438, 441 (1996) (finding
- 11 - section 19(h) of the Act gives the Commission continuing juris-
diction over an award providing for compensation in installments
for a proscribed period of time, and the time provision of
section 19(h) jurisdictional).
Section 19(h) provides as follows:
"An agreement or award under this Act
providing for compensation in installments,
may at any time within 18 months after such
agreement or award be reviewed by the Commis-
sion at the request of either the employer or
the employee, on the ground that the disabil-
ity of the employee has subsequently re-
curred, increased, diminished[,] or ended.
However, as to accidents occurring sub-
sequent to July 1, 1955, which are covered by
any agreement or award under this Act provid-
ing for compensation in installments made as
a result of such accident, such agreement or
award may at any time within 30 months, or 60
months in the case of an award under [s]ecti-
on 8(d)1, after such agreement or award be
reviewed by the Commission at the request of
either the employer or the employee on the
ground that the disability of the employee
- 12 - has subsequently recurred, increased, dimin-
ished[,] or ended.
On such review, compensation payments
may be re-established, increased, dimin-
ished[,] or ended." 820 ILCS 305/19(h) (West
2008).
As such, section 19(h) provides a period of time in which the
Commission may consider whether an injury has recurred, in-
creased, decreased, or ended. Behe v. Industrial Comm'n, 365
Ill. App. 3d 463, 466, 848 N.E.2d 611, 614 (2006). The 30-month
time period applies here because the 60-month time period applies
only to injuries that occurred on or after February 1, 2006. See
Pub. Act. 94-277, §95, eff. July 20, 2005 (2005 Ill. Legis. Serv.
1911, 1965 (West)). Therefore, in this case, defendant could
have petitioned the Commission, within 30 months of the wage-
differential award, and argued the injury diminished or ended.
See Cassens, 218 Ill. 2d at 528, 844 N.E.2d at 421 (noting that
the employer could have asked the Commission to reopen an in-
stallment award on the ground that the employee's disability
diminished or ended but had to do so within 30 months of the
issuance of the award).
While this outcome seems unfair, this court is bound by
the statute and Cassens to so rule and encourages the legislature
to revisit this situation. A totally and permanently disabled
- 13 - employee's benefits may be terminated upon the employer learning
the disability no longer exists, but a partially permanently
disabled employee's benefits pursuant to section 8(d)(1) (wage
differential) may not. See 820 ILCS 305/8(f) (West 2008) (pro-
viding that in cases of complete disability, if the employee
returns to work or is able to do so and earns as much as before
the accident or is able to do so, payments under the award shall
cease); Cassens, 218 Ill. 2d at 527, 529, 844 N.E.2d at 421
(finding "[s]ection 8(f) indicates that employers may cease
payments when a totally and permanently disabled employee returns
to the workforce, giving the employee authorization to petition
the Commission for review of the award" and construing the
statute as authorizing "ongoing review" by the Commission).
Concededly, just as the employer can only petition to terminate
benefits on a wage differential within 60 months (for injuries
occurring on or after February 1, 2006), an employee may not seek
an increase in his wage differential even if further disabled
after 60 months.
Defendant also argues on appeal that it should have
been allowed to amend its pleading. Nothing in the record
demonstrates defendant sought leave to amend or shows what that
amendment entailed. In any event, one of the factors considered
when determining whether to permit amendment to a pleading is
whether the amendment would cure the defect in the pleading. See
- 14 - Gurnitz v. Lasits-Rohline Service, Inc., 368 Ill. App. 3d 1129,
1132, 859 N.E.2d 1156, 1159 (2006). Here, defendant could not
cure the defect in the pleading because its counterclaim was not
a proper defense to the section 19(g) action, and, in any event,
the trial court was not the proper forum in which to raise its
claim that plaintiff's injury diminished or ended. See 820 ILCS
305/19(h) (West 2008) (providing the method and means for chal-
lenging an installment award under the Act before the Commis-
sion). Consequently, we affirm the circuit court's judgment.
B. Plaintiff Not Entitled to Costs and Attorney Fees Incurred on Appeal
In his cross-appeal, plaintiff argues he is entitled to
costs and attorney fees incurred on appeal either under section
19(g) of the Act or pursuant to Supreme Court Rule 375, which
pertains to frivolous appeals.
Section 19(g) of the Act provides for an award of costs
and attorney fees in certain circumstances:
"In a case where the employer refuses to pay
is entered the court shall in entering judg-
ment thereon, tax as costs against him the
reasonable costs and attorney fees in the
- 15 - favor the judgment is entered, which judgment
and costs taxed as therein provided shall,
eted." (Emphasis added.) 820 ILCS 305/19(g)
(West 2008).
In this case, the circuit court did, in conformance with section
19(g), award plaintiff his reasonable costs and attorney fees.
Plaintiff now seeks costs and attorney fees incurred on appeal.
Section 19(g) does not, however, specifically provide for payment
of attorney fees incurred on appeal.
In support of his argument that he is entitled to costs
and attorney fees incurred on appeal, plaintiff cites McAnally v.
Butzinger Builders, 263 Ill. App. 3d 504, 636 N.E.2d 19 (1994).
In McAnally, the trial court dismissed the plaintiff's section
19(g) petition. McAnally, 263 Ill. App. 3d at 506, 636 N.E.2d at
20. On appeal, the appellate court reversed and remanded,
directing the trial court to calculate the amount due and to
enter a judgment in favor of plaintiff. McAnally, 263 Ill. App.
3d at 509, 636 N.E.2d at 22. The appellate court also found
"plaintiff [was] entitled to costs and attorney fees for the
employer's refusal to pay, and the fee award shall include those
- 16 - incurred in prosecuting the appeal." McAnally, 263 Ill. App. 3d
at 509, 636 N.E.2d at 22. The court reasoned that although the
right to appeal is important, the injured worker also has the
right to be promptly compensated for the full amount of the final
award. McAnally, 263 Ill. App. 3d at 509, 636 N.E.2d at 22.
In contrast here, the circuit court granted plaintiff's
19(g) petition and awarded costs and attorney fees as provided by
section 19(g) of the Act. No remand is required here, as entry
of judgment has occurred. Nothing in the language of section
19(g) compels an award of attorney fees under these circum-
stances. Section 19(g) refers to an award of costs and attorney
fees incurred in the arbitration proceedings and in the court
entering judgment. Unlike the situation in McAnally, where the
circuit court was directed to enter judgment to include costs and
attorney fees incurred on appeal, no remand is required here. As
such, section 19(g) of the Act does not require this court to
award plaintiff his costs and attorney fees incurred on appeal,
and we decline to do so.
Plaintiff also seeks costs and attorney fees incurred
on appeal pursuant to Supreme Court Rule 375(b) (155 Ill. 2d R.
375(b)). Supreme Court Rule 375(b) calls for sanctions where an
appeal is not reasonably well grounded in law or fact and is made
in bad faith or to avoid paying an award. 155 Ill. 2d R. 375(b).
The imposition of sanctions under Rule 375(b) is within the
- 17 - appellate court's discretion. See Residential Carpentry, Inc. v.
Illinois Workers' Compensation Comm'n, 389 Ill. App. 3d 975, 976,
910 N.E.2d 109, 111 (2009). We find that although defendant's
argument on appeal was unpersuasive, the argument was not so
lacking in foundation and law and evidence as to merit sanctions.
Greene Welding & Hardware v. Illinois Workers' Compensation
Comm'n, 396 Ill. App. 3d 754, 759, 919 N.E.2d 1129, 1134 (2009).
Therefore, we deny plaintiff's request for costs and attorney
fees on appeal.
III. CONCLUSION
For the reasons stated, we affirm the circuit court's
judgment and deny plaintiff's request on cross-appeal for costs
and attorney fees.
Affirmed.
KNECHT and TURNER, JJ., concur.
- 18 -