                         Illinois Official Reports

                                Appellate Court



                   Bell v. Illinois Workers’ Compensation Comm’n,
                              2015 IL App (4th) 140028WC



Appellate Court     JANET K. BELL, Administrator of the Estate of Mary J. Nash,
Caption             Appellant, v. THE ILLINOIS WORKERS’ COMPENSATION
                    COMMISSION et al. (Dan Pilson Auto Center, Appellee).



District & No.      Fourth District
                    Docket No. 4-14-0028WC



Filed               May 1, 2015
Rehearing denied    June 26, 2015



Decision Under      Appeal from the Circuit Court of Coles County, No. 13-MR-123; the
Review              Hon. Teresa K. Righter, Judge, presiding.



Judgment            Circuit court’s judgment reversed, Commission’s decision vacated,
                    and cause remanded.




Counsel on          Sandra K. Loeb and Matthew Duco, both of Spiros Law, P.C., of
Appeal              Danville, for appellant.

                    Stephen J. Klyczek (argued), of Hennessy & Roach, P.C., of
                    Springfield, for appellee.
     Panel                    PRESIDING JUSTICE HOLDRIDGE delivered the judgment of the
                              court, with opinion.
                              Justices Hoffman, Hudson, Harris and Stewart concurred in the
                              judgment and opinion.


                                                OPINION

¶1         Mary J. Nash filed an application for adjustment of claim under the Workers’
       Compensation Act (Act) (820 ILCS 305/1 et seq. (West 2008)), seeking benefits for injuries
       she sustained while she was working for Dan Pilson Auto Center (employer). Prior to the
       arbitration hearing, Ms. Nash died of causes unrelated to her work accident. Janet K. Bell, Ms.
       Nash’s sister and the administrator of her estate (claimant), filed an amended application for
       adjustment of claim substituting herself as the claimant. After conducting a hearing, an
       arbitrator awarded temporary total disability (TTD) benefits and medical expenses and found
       that the claimant had sustained a permanent partial disability from her work injury. However,
       the arbitrator ruled that any permanent partial disability (PPD) benefits that had accrued prior
       to Ms. Nash’s death abated with her death and declined to award any such benefits to her
       estate.
¶2         The claimant appealed the arbitrator’s decision to the Illinois Workers’ Compensation
       Commission (the Commission). The Commission unanimously affirmed and adopted the
       arbitrator’s decision. The claimant then sought judicial review of the Commission’s decision in
       the circuit court of Coles County, which confirmed the Commission’s ruling. This appeal
       followed.

¶3                                                FACTS
¶4         Mary J. Nash worked for the employer as a clerical worker for approximately 25 years. The
       parties stipulated that Ms. Nash sustained accidental injuries that arose out of the course of her
       employment on January 30, 2008, when she slipped and fell in the employer’s parking lot. She
       was transported by ambulance to Sarah Bush Lincoln Medical Center, where she was
       diagnosed with an acute spiral fracture of the right distal femur. On February 1, 2008, Ms.
       Nash was admitted to the Carle Foundation Hospital, where she underwent a surgical
       procedure on her fractured femur that the medical records described as an “open reduction and
       internal fixation” with plates and screws.
¶5         Although Ms. Nash’s femur healed properly and without complications in the months
       following the surgery, she remained too weak to walk without assistance. On July 16, 2008,
       Ms. Nash’s surgeon, Dr. Alain Desy, noted that weakness in Ms. Nash’s legs prevented her
       from “fully ambulating” and that she was still using a wheelchair. Dr. Desy also noted at that
       time that, although some of Ms. Nash’s weakness had preexisted her accident, she was able to
       walk without any assistive device prior to the accident. On August 27, 2008, Brian J.
       Cummings, Dr. Desy’s physician’s assistant, noted that Ms. Nash was experiencing very slow
       recovery of strength despite very sincere ongoing physical therapy efforts. Cummings
       suspected that Ms. Nash had an underlying neurological or rheumatological condition



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       preexisting her work injury but not manifesting itself strongly enough to impede her lifestyle
       before August 2008. A neurology consult was recommended.
¶6         On September 23, 2008, Ms. Nash was evaluated by Dr. Russell Cantrell, the employer’s
       section 12 examiner. After examining Ms. Nash and reviewing her medical records, Dr.
       Cantrell opined that Ms. Nash had reached maximum medical improvement (MMI) with
       regard to her work-related right femur fracture. Dr. Cantrell also opined that Ms. Nash’s
       reported inability to resume ambulation without reliance on a wheelchair was not related to her
       work-related orthopedic injury but rather was “associated with an underlying neuropathic
       process.” He recommended a more complete set of electrodiagnostic studies. However, Dr.
       Cantrell opined that Ms. Nash was capable of performing her regular work duties without
       restrictions as they related to her work-related right femur fracture.
¶7         On March 18, 2009, Ms. Nash filed an application for adjustment of claim with the
       Commission seeking benefits for work-related injuries to her right leg that she allegedly
       suffered on January 30, 2008.
¶8         On November 12, 2009, Ms. Nash was evaluated by Dr. Conrad Wiehl, a neurologist. Dr.
       Wiehl’s examination revealed that Ms. Nash had diffuse weakness and more weakness
       proximally in her lower extremities than distal weakness. Dr. Wiehl suspected that Ms. Nash
       was suffering from “a muscular dystrophy of some sort.” Accordingly, he ordered EMG/nerve
       conduction studies and blood tests.
¶9         Ms. Nash returned to Dr. Wiehl on January 28, 2010, after undergoing the recommended
       studies. Dr. Wiehl testified that the diagnostic testing confirmed that Ms. Nash had a
       myopathy, which Dr. Wiehl defined as “an underlying muscle weakness syndrome.” He
       opined that Ms. Nash’s January 30, 2008, work accident “accelerated the clinical symptoms
       associated with her muscle disease.” Dr. Wiehl also testified that, based upon his review of the
       medical records, Ms. Nash had reached MMI from her work-related injury as of August 27,
       2008.
¶ 10       On August 19, 2010, Ms. Nash died of causes unrelated to her work-related injuries. On
       April 12, 2011, the claimant, Ms. Nash’s sister and the administrator of her estate, filed an
       amended application for adjustment of claim which substituted herself as the claimant in the
       place of Ms. Nash.
¶ 11       The arbitration hearing took place on June 25, 2012. During the hearing, the claimant
       testified that, prior to her January 30, 2008, work accident, Ms. Nash appeared able to walk
       without an assistive device, although she used a cane on occasion. The claimant also stated that
       Ms. Nash was able to stand up without assistance prior to the work accident. The claimant
       testified that Ms. Nash relied upon a wheelchair to get around at all times after the work
       accident, including when she returned to work. The claimant did not observe Ms. Nash stand
       up without assistance or walk on her own at any time after the accident.
¶ 12       The employer stipulated that Ms. Nash sustained accidental injuries that arose out of and in
       the course of her employment on January 30, 2008. The employer also stipulated that the
       claimant was entitled to a TTD underpayment of $99.79, and the arbitrator awarded that
       amount to the claimant. The claimant sought reimbursement of medical expenses incurred by
       Ms. Nash while she was alive, including the cost of medical treatment rendered on the date of
       the accident and the cost of modifying her home to allow her to use a wheelchair. The arbitrator
       ordered the employer to pay these expenses, finding that the medical evidence showed that Ms.
       Nash needed assistance to ambulate as a result of her work-related injuries.

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¶ 13       The claimant also sought recovery of the PPD benefits that accrued from the date that Ms.
       Nash reached MMI until her death on August 19, 2010. The employer disputed the claimant’s
       right to recover such benefits, arguing that any PPD benefits to which the claimant would have
       been entitled abated upon her death.
¶ 14       After reviewing relevant case law and Commission decisions, the arbitrator agreed with the
       employer and held that Ms. Nash’s claim for PPD benefits had abated. The Commission
       apparently found that the claimant had established that Ms. Nash’s work accident resulted in a
       permanent partial disability. (While discussing our holding in Divittorio v. Industrial Comm’n,
       299 Ill. App. 3d 662 (1998), the Commission stated that “[l]ike the instant case, medical
       testimony along with testimony from a relative [in Divittorio] established the existence of a
       permanent partial disability.”) However, the arbitrator ruled that sections 8(e)(19) and 8(h) of
       the Act (820 ILCS 305/8(e)(19), (h) (West 2008)), which authorize the surviving spouse and
       dependants of a deceased claimant to continue an injured employee’s claim for PPD benefits
       after the employee’s death, allow the recovery of PPD benefits only if one or more such
       eligible dependents exist at the time of the employee’s death. Because Ms. Nash had no
       dependents, the arbitrator held that her estate was not entitled to recover any PPD benefits on
       her behalf, even PPD benefits that accrued before her death. The arbitrator noted that the Act
       “allows dependents to recover from the economic loss caused by [the claimant’s] injury,” and
       concluded that “[a]llowing [Ms. Nash’s] estate to collect permanency benefits, where she had
       no dependents, really serves no purpose.”
¶ 15       The claimant appealed the arbitrator’s decision to the Illinois Workers’ Compensation
       Commission. The Commission unanimously affirmed and adopted the arbitrator’s decision.
       The claimant then sought judicial review of the Commission’s decision in the circuit court of
       Coles County, which confirmed the Commission’s ruling. This appeal followed.

¶ 16                                           ANALYSIS
¶ 17       The issue presented in this appeal is whether the estate of an unmarried claimant who dies
       without leaving any dependents may recover PPD benefits that accrued prior to the employee’s
       death, or, alternatively, whether any claim to such benefits abates with the employee’s death.
       The answer to this question depends upon the proper construction of section 8 of the Act (820
       ILCS 308/8 (West 2008)). Issues of statutory construction are questions of law, which are
       reviewed de novo. Nationwide Bank & Office Management v. Industrial Comm’n, 361 Ill. App.
       3d 207, 209-10 (2005). The relevant facts are undisputed. Accordingly, we review the
       Commission’s decision de novo.
¶ 18       In this case, the Commission found that “medical testimony along with testimony from a
       relative established” that Ms. Nash had a permanent partial disability. The Commission also
       found that Ms. Nash had reached MMI before her death. Accordingly, the Commission tacitly
       acknowledged that at least some PPD benefits accrued prior to Ms. Nash’s death.
       Nevertheless, relying on sections 8(e)(19) and 8(h) of the Act, the Commission ruled that any
       claim to PPD benefits, even a claim to PPD benefits that accrued and were due and owing prior
       to the Ms. Nash’s death, abated with her death and could not be recovered by Ms. Nash’s estate
       because Ms. Nash died without any dependents.
¶ 19       That was error. Section 8(e)(19) provides:



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               “In a case of specific loss and the subsequent death of such injured employee from
               other causes than such injury leaving a widow, widower, or dependents surviving
               before payment or payment in full for such injury, then the amount due for such injury
               is payable to the widow or widower and, if there be no widow or widower, then to such
               dependents, in the proportion which such dependency bears to total dependency.” 820
               ILCS 305/8(e)(19) (West 2008).
       Similarly, section 8(h) provides:
               “In case death occurs from any cause before the total compensation to which the
               employee would have been entitled has been paid, then in case the employee leaves any
               widow, widower, child, parent (or any grandchild, grandparent or other lineal heir or
               any collateral heir dependent at the time of the accident upon the earnings of the
               employee to the extent of 50% or more of total dependency) such compensation shall
               be paid to the beneficiaries of the deceased employee and distributed as provided in
               paragraph (g) of Section 7.” 820 ILCS 305/8(h) (West 2008).
       By their plain terms, these provisions merely establish to whom benefits will be paid if the
       employee dies with a spouse or dependents before he has been fully compensated for his
       work-related injury. They do not limit the ability of a deceased employee’s estate to collect
       accrued, unpaid benefits that were due and owing to the employee while he was alive. Neither
       provision addresses what happens when an employee dies without leaving a surviving spouse
       or any surviving dependents, as in this case. Accordingly, neither provision should be read as
       barring an employee’s estate to collect accrued benefits under such circumstances.
¶ 20       As the claimant notes, both our supreme court and this court have already reached a similar
       conclusion. In Republic Steel Corp. v. Industrial Comm’n, 26 Ill. 2d 32 (1962), the
       Commission found that the claimant sustained accidental injuries arising out of his
       employment which permanently and totally incapacitated him and ordered the employer to pay
       the claimant $40 per week for 281 weeks plus an annual pension for life of $1,350 payable in
       equal monthly installments. Id. at 34-35. While the employer’s appeal of the Commission’s
       award was pending, the claimant died. The administrator of the claimant’s estate (his wife)
       moved to substitute the administrator as the claimant in place of the employee. The circuit
       court of Cook County granted the substitution and ordered the employer to pay the
       administrator the amount of workers’ compensation benefits that had accrued as of the date of
       the claimant’s death. Id. at 35-36. The circuit court abated any additional benefit payments
       awarded by the Commission’s order. Id.
¶ 21       Our supreme court affirmed. The supreme court rejected the employer’s arguments that the
       administrator of the employee’s estate “ha[d] no standing to collect workmen’s compensation
       benefits, which can be paid only to dependents,” and that the benefits that had accrued from the
       date of the employee’s work accident until the date of his death “should be abated.” Id. at 46.
       Citing its prior precedents, the supreme court ruled that, although an employee’s death
       “extinguishe[s] all payments falling due after [the employee’s] death,” an administrator of the
       claimant’s estate may recover for “those payments accrued to the date of death.” Id.
¶ 22       Applying Republic Steel Corp., we reached the same conclusion in Nationwide Bank &
       Office Management v. Industrial Comm’n, 361 Ill. App. 3d 207 (2005). In that case, an
       employee filed a claim for TTD benefits and medical expenses but died of causes unrelated to
       his work injury prior to arbitration. Id. at 208. The employee’s widow carried on the
       employee’s claim but did not file a motion for substitution. Id. The arbitrator awarded TTD

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       benefits and medical expenses, and the employer filed a petition for review with the
       Commission. While the employer’s petition was pending, the employee’s widow died, and the
       claim was carried on by the widow’s estate. Id. (The employee and his wife had no children
       and left no dependents.) The Commission affirmed and remanded the matter to the arbitrator
       with instruction to take further evidence regarding the proper calculation of the employee’s
       average weekly wage.
¶ 23       On remand, the employer moved to dismiss the claim, arguing, inter alia, that the claim
       had been abated due to the employee’s death. Id. The arbitrator declined to address this issue
       and issued a decision finding that the employee’s average weekly wage was $0. On appeal
       before the Commission, the employer again argued that the employee’s claim had been abated.
       The Commission rejected this argument and held that the employer was required to pay the
       medical expenses and TTD benefits ordered in the original award. Id. at 209. However, on
       appeal, the circuit court reversed and set aside the arbitrator’s award, ruling that section 8(h) of
       the Act abated the claim upon the death of the employee’s wife. Id. at 210.
¶ 24       We reversed the circuit court’s judgment and reinstated the Commission’s decision. In so
       ruling, we relied upon our supreme court’s decision in Republic Steel Corp. which, we noted,
       had (1) rejected the argument that an employee’s estate lacks standing to collect accrued
       benefits “which could only be paid to dependents”; and (2) “not[ed] that benefits which
       accrued up to the date of death were payable to the estate, regardless of dependency, while
       benefits which did not accrue until after the date of death were abated.” (Emphasis added.) Id.
       at 211. We rejected the employer’s argument that the supreme court’s holding in Republic
       Steel Corp. had been legislatively overruled by the enactment of section 8(h) in 1975. We
       noted that “section 8(h) by its express language does not address accrued benefits.” Id. We
       observed that section 8(h) only addresses benefits which are to be “distributed as provided in”
       section 7(g) of the Act, which provides for payment in installments; accordingly, we ruled that
       section 8(h) “specifically addresses benefits to be paid out in installments” and leaves Republic
       Steel Corp.’s holding regarding accrued benefits “untouched.” Id. Because the accrued TTD
       benefits and medical expenses at issue in Nationwide Bank were accrued benefits that were
       payable to the defendant prior to date of his death (rather than future installment payments that
       would have accrued and been payable on some later date), we held that the benefits awarded by
       the Commission could be paid to the employee’s widow’s estate. Id. at 213.
¶ 25       We reach the same conclusion here. In this case, Ms. Nash’s estate seeks only those PPD
       benefits that had accrued and were payable, due, and owing to Ms. Nash prior to her death. It
       does not seek future installment payments that would have accrued and become payable to Ms.
       Nash on some future date had she survived. Republic Steel Corp. and Nationwide Bank provide
       that such benefits may be collected by Ms. Nash’s estate.
¶ 26       The Commission found Republic Steel Corp. and Nationwide Bank distinguishable
       because, “[i]n each of those cases, when the injured worker died, there were one or more
       eligible dependents as set forth by [sections 8(e)(19) and 8(h)] of the Act.” We do not find this
       distinction dispositive. In Republic Steel Corp., our supreme court rejected the argument that
       an injured employee’s estate “has no standing to collect workmen’s compensation benefits,
       which can be paid only to dependents.” Republic Steel Corp., 26 Ill. 2d at 46. The supreme
       court held that the administrator of the estate may collect benefits that had accrued prior to the
       defendant’s death. Although the administrator of the employee’s estate in Republic Steel Corp.
       happened to be the employee’s widow, the fact that she was an eligible dependent under the

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       Act played no part in the supreme court’s holding. The employer in Republic Steel argued that
       the employee’s widow, who was suing in her capacity as the administrator of the employee’s
       estate rather than in her personal capacity, lacked standing to collect workers’ compensation
       benefits because such benefits were payable “only to dependents,” not to the employee’s
       estate. The supreme court expressly rejected that argument. Thus, as we noted in Nationwide
       Bank, Republic Steel Corp. stands for the proposition that benefits which accrued up to the date
       of death are payable to the employee’s estate, “regardless of dependency.” (Emphasis added.)
       Nationwide Bank, 361 Ill. App. 3d at 211. In Nationwide Bank, we noted that this aspect of
       Republic Steel Corp.’s holding was not overruled by the enactment of section 8(h) of the Act
       because section 8(h) does not address accrued benefits.
¶ 27        Similarly, our holding in Nationwide Bank was not dependent in any way on the fact that
       the employee’s widow was alive at the time of the employee’s death. Like the employee, the
       employee’s widow in Nationwide Bank had died during the pendency of her husband’s claim
       (i.e., before his workers’ compensation award was final). Nevertheless, applying Republic
       Steel Corp., we awarded accrued benefits to the widow’s estate. Nationwide Bank, 361 Ill.
       App. 3d at 211-13. In so holding, we made it clear that benefits that accrue before the injured
       employee’s death are payable to the estate “regardless of dependency.” Id. at 211.
¶ 28        In this case, the Commission also found that allowing Ms. Nash’s estate to collect PPD
       benefits when she had no dependents “really serves no purpose.” The employer essentially
       argues the same point by asserting that, unlike medical expenses and TTD benefits (which
       could “allow[ ] the estate to recover debts incurred by the decedent while living”), PPD “is
       purely compensation for the injury and is personal to the claimant.” We are not persuaded.
       Like TTD benefits, PPD benefits serve as compensation for the diminishment of the
       employee’s earning capacity which was caused by a work-related injury. Thus, unpaid PPD
       payments that accrued while the claimant was alive are payable to his estate, just like unpaid
       but accrued TTD benefits. See Republic Steel Corp., 26 Ill. 2d at 46. Moreover, contrary to the
       Commission’s assertion, there are good policy reasons to allow estates to collect such unpaid,
       accrued benefits. As our supreme court noted in Republic Steel Corp., a contrary rule would
       encourage employers to “litigate and delay the payment of compensation due a legitimately
       disabled individual to a point beyond his death and thereby defeat his right to compensation.”
       Id. at 47.
¶ 29        The employer argues that our supreme court’s holding was “rendered obsolete” by the
       subsequent enactment of sections 8(e)(19) and 8(h) of the Act, which “limit[ed] recovery of a
       deceased petitioner’s benefits to only surviving spouses and dependents.” In Nationwide Bank,
       we specifically rejected this argument with respect to section 8(h). Nationwide Bank, 361 Ill.
       App. 3d at 211. For similar reasons, we also reject the employer’s argument with respect to
       section 8(e)(19). As noted above, both sections merely provide that, where an injured claimant
       dies leaving one or more eligible dependents, such dependents may recover his workers’
       compensation benefits, including any installment benefits that were to be paid on dates after
       the claimant’s death. They say nothing about what happens when an injured employee dies
       without leaving any eligible dependents. Thus, these sections of the Act do not defeat the
       employee’s estate’s right to collect benefits that accrued before the claimant’s death, as
       confirmed by Republic Steel Corp.
¶ 30        Like the Commission, the employer relies upon Divittorio v. Industrial Comm’n, 299 Ill.
       App. 3d 662 (1998), and Peabody Coal Co. v. Industrial Comm’n, 255 Ill. App. 3d 828 (1994),

                                                  -7-
       in support of its argument that benefits owed to a deceased claimant may only be paid to his or
       her eligible dependents. However, these cases merely addressed the question of who was
       entitled to collect benefit payments where there may have been an eligible dependent. Neither
       case held or implied that an injured employee’s estate may not collect accrued benefits where
       there are no such dependents.
¶ 31       We have considered the employer’s remaining arguments and we find them meritless.
       Accordingly, we reverse the judgment of the circuit court, vacate the Commission’s decision,
       and remand this matter to the Commission with instructions to determine what PPD benefits
       accrued prior to Ms. Nash’s death and to award such benefits, if any, to the claimant.

¶ 32                                        CONCLUSION
¶ 33       For the foregoing reasons, we reverse the judgment of the circuit court of Coles County
       confirming the Commission’s decision, vacate the decision of the Commission, and remand
       this matter to the Commission for further proceedings consistent with our decision.

¶ 34      Circuit court’s judgment reversed, Commission’s decision vacated, and cause remanded.




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