
                              NO. 5-96-0071WC



                                  IN THE 



                        APPELLATE COURT OF ILLINOIS



                              FIFTH DISTRICT



                      INDUSTRIAL COMMISSION DIVISION

_________________________________________________________________



NANCY ESCHBAUGH,                    )  Appeal from the 

                                    )  Circuit Court of

     Appellant,                     )  Shelby County.

                                    )

v.                                  )  No. 95-MR-11

                                    )

THE INDUSTRIAL COMMISSION et al.    )  Hon. Michael R. Weber,

(Continental Bondware, Appellee).   )  Judge, presiding.

_________________________________________________________________



     JUSTICE RAKOWSKI delivered the opinion of the court:

     Nancy Eschbaugh (claimant) appeals from the judgment of the

circuit court confirming the decision of the Industrial Commission

(Commission), which dismissed claimant's petition to review an

award providing for compensation in installments pursuant to

section 19(h) of the Workers' Compensation Act (the Act) (820 ILCS

305/1 et seq. (West 1994)).  Section 19(h) states in pertinent part

that an agreement or award under the Act providing for compensation

in installments "may at any time within 30 months 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 has subsequently recurred, increased,

diminished or ended."  820 ILCS 305/19(h) (West 1994).  Finding

that claimant's petition was not timely filed within the 30-month

period, the Commission dismissed the petition for lack of subject

matter jurisdiction.

     It is undisputed that claimant's petition to review an award

under section 19(h) of the Act was not timely filed.  However,

claimant contends the Commission did not have the power to dismiss

the petition sua sponte, where neither claimant nor Continental

Bondware (employer) objected to the Commission's subject matter

jurisdiction to conduct a hearing pursuant to section 19(h) of the

Act.  The precise issue we address is whether the time limitation

set forth in section 19(h) is jurisdictional or a statute of

limitations.

     There is an important distinction between a limitations

provision that is statutory and one that is jurisdictional.  A

statute of limitations is procedural in nature, affecting a

plaintiff's remedy only, but it does not alter substantive rights. 

Fredman Brothers Furniture Co. v. Department of Revenue, 109 Ill.

2d 202, 209 (1985).  It merely gives a time limit within which

legal action shall be brought, with the time beginning when the

action has accrued or ripened.  Fredman Brothers Furniture Co., 109

Ill. 2d at 209.  A statute of limitations is an affirmative defense

that may be waived by the parties and is open to pleas of estoppel. 

Pantle v. Industrial Comm'n, 61 Ill. 2d 365, 367 (1975).  In

workers' compensation cases, statutes of limitations are designed

to assure fairness to employers by protecting against claims that

are too old to be successfully investigated and defended.  Goodson

v. Industrial Comm'n, 190 Ill. App. 3d 16, 19 (1989).

     In contrast, a statute that creates substantive rights unknown

at common law and makes time a component part of the rights created

is not a statute of limitations.  Rather, the prescribed time

period is viewed as a condition precedent to the plaintiff's right

to seek a remedy and is deemed jurisdictional.  Fredman Brothers

Furniture Co., 109 Ill. 2d at 209-10.  A jurisdictional limitation

period is an absolute requirement; it is not an affirmative defense

that is subject to waiver or estoppel.

     The Act itself creates substantive rights, unknown to the

common law, pursuant to which employees may recover compensation

from their employers for accidental injuries or death suffered in

the course of employment.  820 ILCS 305/1 et seq. (West 1994).  The

Act also prescribes certain time periods within which employees

must enforce those rights by filing notices of claims and petitions

to recover benefits.  820 ILCS 305/6(c), (d) (West 1994).  The 45-

day notice-to-employers provision found in section 6(c) of the Act

is deemed jurisdictional (Ferguson v. Industrial Comm'n, 397 Ill.

348, 351 (1947); Ristow v. Industrial Comm'n, 39 Ill. 2d 410, 413

(1968)), whereas the time period for filing an application for

compensation pursuant to section 6(d) of the Act is considered a

statute of limitations that is subject to waiver and estoppel. 

Tegeler v. Industrial Comm'n, No. 80498 (Ill. Oct. 18, 1996);

Baldock v. Industrial Comm'n, 63 Ill. 2d 124, 126 (1976); Pantle v.

Industrial Comm'n, 61 Ill. 2d 365, 367 (1975); Railway Express

Agency v. Industrial Comm'n, 415 Ill. 294, 299 (1953).  Section

6(d) of the Act is viewed differently, arguably because the effect

of the failure to file a timely application is stated in these

words: "the right to file such application shall be barred."  This

is language of limitations, not of jurisdiction.  Railway Express

Agency, 415 Ill. at 299.  Be it noted, however, that the limitation

period of section 6(d) has also been considered a jurisdictional

requirement and a condition precedent to maintaining an action

under the Act.  Black v. Industrial Comm'n, 393 Ill. 187, 193

(1946); Creel v. Industrial Comm'n, 54 Ill. 2d 580, 588 (1973)

(Davis, J., dissenting).  Remarkably, Illinois courts have not

squarely addressed the conflict surrounding section 6(d) of the

Act.  In fact, the divergent cases cited above do not even

acknowledge one another.

     In addition to the preaward limitation periods set forth in

sections 6(c) and 6(d) of the Act, the Act also contains limitation

periods that preclude review of awards beyond the statutory time

periods.  820 ILCS 305/19(b), (f) (West 1994).  The cases are

legion that hold that the failure to strictly comply with sections

19(b) and 19(f) of the Act deprives the Commission and the courts

of subject matter jurisdiction.  Northwestern Steel & Wire Co. v.

Industrial Comm'n, 37 Ill. 2d 112, 115 (1967) (section 19(b),

petition for review of arbitrator's decision to Commission);

Mattern v. Industrial Comm'n, 216 Ill. App. 3d 653, 654 (1991)

(same); Wiscons v. Industrial Comm'n, 176 Ill. App. 3d 898, 899

(1988) (same); Garcia v. Industrial Comm'n, 95 Ill. 2d 467, 469

(1983) (section 19(f), correction of clerical errors); Arrington v.

Industrial Comm'n, 96 Ill. 2d 505, 508-09 (1983) (section 19(f)(1),

petition for review of Commission's decision to circuit court);

Perusky v. Industrial Comm'n, 72 Ill. 2d 299, 301-02 (1978) (same);

Frank v. Industrial Comm'n, 276 Ill. App. 3d 214, 216-18 (1995)

(same); Fisher v. Industrial Comm'n, 231 Ill. App. 3d 1061, 1064

(1992) (same); Fortson v. Industrial Comm'n, 184 Ill. App. 3d 794,

795-96 (1989) (same); Sprinkman & Sons, Corp. v. Industrial Comm'n,

160 Ill. App. 3d 599, 600-01 (1987) (same).

     Finally, section 19(h) of the Act, at issue here, grants the

Commission continuing jurisdiction over compensation claims for a

prescribed period of time.  This provision allows an agreement or

award providing for compensation in installments to be reviewed by

the Commission at the request of either party for change of

disability of the employee at any time within 30 months after such

agreement or award.  820 ILCS 305/19(h) (West 1994).  At least one

Illinois case has viewed this 30-month time limitation as jurisdic-

tional.  See Ruff v. Industrial Comm'n, 149 Ill. App. 3d 73 (1986).

     In Ruff, the petitioner argued the respondent waived the issue

of subject matter jurisdiction by failing to contend the Commission

lacked jurisdiction to hear the section 19(h) petition because it

was not timely filed.  The court noted that the respondent's

jurisdictional claim was not waived, even though it was first

presented before the circuit court during its review of the

Commission's denial of the section 19(h) petition.  Ruff, 149 Ill.

App. 3d at 78.  The court found, however, that the petitioner filed

a timely section 19(h) petition and, thus, the Commission had

proper jurisdiction to hear his claim.  Ruff, 149 Ill. App. 3d at

78.

     The view espoused in Ruff, that the time limitation of section

19(h) is jurisdictional, has case law support from other states. 

See Selden v. Workers' Compensation Appeals Board, 176 Cal. App. 3d

877, 222 Cal. Rptr. 450 (Cal. App. 1986) (statutory time limit for

filing a petition to increase award is jurisdictional); Budget

Luxury Inns, Inc. v. Boston, 407 So. 2d 997 (Fla. App. 1981); Garza

v. W.A. Jourdan, Inc., 572 P.2d 1276 (N.M. App. 1977) (limitation

period is jurisdictional and cannot be waived); Manrose v. Miami

Shipbuilding Corp., 23 So. 2d 733 (Fla. 1945); Tischer v. City of

Council Bluffs, 3 N.W.2d 166 (Iowa 1942).  Moreover, this view

comports with the expression of our supreme court that there is no

sound reason to enlarge the period of time during which review may

be had under section 19(h) of the Act.  Cuneo Press, Inc. v.

Industrial Comm'n, 51 Ill. 2d 548, 549-50 (1972); Greenway v.

Industrial Comm'n, 73 Ill. 2d 273, 276-77 (1978).

     While we must acknowledge that section 19(h) of the Act is

remedial legislation that should be construed liberally to allow

review of awards for change in disability (Hardin Sign Co. v.

Industrial Comm'n, 154 Ill. App. 3d 386, 389 (1987)), a liberal

construction does not mean the Commission may disregard limitation

provisions of the Act.  The purpose of section 19(h) of the Act is

to set a period of time in which the Commission may consider

whether an injury has recurred, increased, decreased, or ended. 

Checker Taxi Co. v. Industrial Comm'n, 343 Ill. 139, 144 (1931). 

The power of the Commission to review an award comes from the Act

itself, which creates the Commission's authority and fixes the time

when such authority must be exercised.  Notman v. Industrial

Comm'n, 219 Ill. App. 3d 203, 205 (1991).  The Commission, as an

administrative, nonjudicial body, has no presumption in favor of

jurisdiction, and through section 19(h), the legislature confined

the Commission's authority to review an award for change of

disability to a 30-month period.  To permit review beyond the

statutory period would bypass this statutory restriction and

override the plain meaning of the Act.

     Therefore, after examining the history and purposes of the

limitations period on review of awards under section 19(h) of the

Act, we are compelled to hold that the time provision set forth in

section 19(h) of the Act is jurisdictional.  To hold otherwise

would be akin to "judicial legislation by judgment" (see Michelson

v. Industrial Comm'n, 375 Ill. 462, 467 (1941)) and detrimental to

the strong Illinois precedent holding that time limitations of the

Act are jurisdictional.

     Having concluded that the time provision of section 19(h) is

jurisdictional, we can readily dismiss claimant's contentions that

employer consented to the jurisdiction of the Commission by

executing a section 19(h) proceeding stipulation form and waived

the limitations period by partaking in a hearing on the merits of

claimant's section 19(h) petition.  It is well settled that the

issue of subject matter jurisdiction cannot be waived, stipulated

to, or consented to by the parties.  Michelson, 375 Ill. at 470;

Taylor v. Industrial Comm'n, 221 Ill. App. 3d 701, 703-04 (1991);

Swope v. Northern Illinois Gas Co., 221 Ill. App. 3d 241, 243

(1991); Ruff, 149 Ill. App. 3d at 78; Mitchell v. Industrial

Comm'n, 148 Ill. App. 3d 690, 695 (1986).  It can be raised at any

time and even sua sponte when necessary.  Arrington v. Industrial

Comm'n, 96 Ill. 2d 505, 509 (1983); West v. Industrial Comm'n, 238

Ill. App. 3d 445, 446 (1992); Taylor, 221 Ill. App. 3d at 703;

Walsh v. Central Cold Storage Co., 324 Ill. App. 402, 419 (1944).

     We find that claimant's reliance on Murphy v. Industrial

Comm'n, 408 Ill. 612 (1951), is misplaced.  In Murphy, the

Commission had properly obtained jurisdiction by a petition filed

within the time allotted by the Act to review the arbitrator's

decision.  Murphy, 408 Ill. at 615.  The court held that the

Commission did not lose jurisdiction by a delay in filing the

transcript of proceedings six days late, where the parties appeared

before the Commission and did not object to its jurisdiction.

Murphy, 408 Ill. at 615.  Murphy is distinguishable from the case

sub judice, where the Commission never had jurisdiction to begin

with because no timely petition was ever filed.  Accordingly, the

Commission could not be conferred with subject matter jurisdiction

by the conduct of the parties.  See Mitchell v. Industrial Comm'n,

148 Ill. App. 3d 690, 695 (1986) (holding that a court may not be

conferred with subject matter jurisdiction which is otherwise

absent).

     In sum, we hold that the statutory limitations period of

section 19(h) of the Act is a jurisdictional requirement that may

be raised at any time and even sua sponte by the Commission.  It is

an absolute and unconditional restriction on the right of review. 

As such, the Commission is necessarily divested of its review

jurisdiction for change of disability 30 months after agreement or

award of compensation.  There being no question that claimant

petitioned for review of an award beyond the time prescribed by

section 19(h) of the Act, the Commission had no jurisdiction to

review the award.  Accordingly, we affirm the dismissal of

claimant's petition for lack of jurisdiction.



     Affirmed.



     McCULLOUGH, P.J., and COLWELL, HOLDRIDGE, and RARICK, JJ.,

concur.

                                      NO. 5-96-0071WC

                                     IN THE

                          APPELLATE COURT OF ILLINOIS

                                 FIFTH DISTRICT

                         INDUSTRIAL COMMISSION DIVISION

___________________________________________________________________________

NANCY ESCHBAUGH,                    )  Appeal from the 

                                    )  Circuit Court of

     Appellant,                     )  Shelby County.

                                    )

v.                                  )  No. 95-MR-11

                                    )

THE INDUSTRIAL COMMISSION et al.    )  Hon. Michael R. Weber,

(Continental Bondware, Appellee).   )  Judge, presiding.

___________________________________________________________________________



Opinion Filed:                 December 30, 1996

___________________________________________________________________________



Justices:      Honorable Thomas R. Rakowski, J.

                         

               Honorable John T. McCullough, P.J., and

               Honorable Michael J. Colwell, J.,

               Honorable William E. Holdridge, J., and

               Honorable Philip J. Rarick, J.,

               Concur

___________________________________________________________________________

                         

Attorneys      Warren E. Danz, Richard G. Leiser, 710 NE Jefferson, Peoria,

for            IL 61603

Appellant      

___________________________________________________________________________



Attorneys      Robert A. Hoffman, Thomas, Mamer & Haughey, 30 Main Street,

for            P.O. Box 560, Champaign, IL 61824-0560

Appellee       

___________________________________________________________________________





