                           ILLINOIS OFFICIAL REPORTS
                                        Appellate Court




                   Patel v. Home Depot USA, Inc., 2012 IL App (1st) 103217




Appellate Court            NARESH PATEL, Petitioner-Appellee, v. HOME DEPOT USA, INC.,
Caption                    Respondent-Appellant (The Home Depot, Inc., and Sedgwick Claims
                           Management Services, Inc., Respondents).



District & No.             First District, Fourth Division
                           Docket No. 1-10-3217


Rule 23 Order filed        December 22, 2011
Rule 23 Order
withdrawn                  January 26, 2012
Opinion filed              February 2, 2012


Held                       Where petitioner was injured while working for respondent and an award
(Note: This syllabus       of benefits to petitioner was confirmed by the Workers’ Compensation
constitutes no part of     Commission along with a credit for respondent in the amount it had
the opinion of the court   already paid, the trial court properly denied respondent’s motion to
but has been prepared      dismiss petitioner’s petition for the entry of judgment on the award and
by the Reporter of         penalties under section 19(g) of the Workers’ Compensation Act,
Decisions for the          notwithstanding respondent’s contention that it had already paid more
convenience of the         than it was obligated to pay, since section 19(g) does not provide a
reader.)
                           remedy for the overpayment of benefits, and although respondent was not
                           entitled to use the credit to offset the award of benefits under section
                           19(g), respondent could seek to recover the overpayment under a
                           common law remedy.
Decision Under             Appeal from the Circuit Court of Cook County, No. 09-L-51666; the
Review                     Hon. James C. Murray, Jr., Judge, presiding.
Judgment                   Affirmed.


Counsel on                 Gurber, McAndrews & Norgle, LLC (John M. McAndrews, of counsel),
Appeal                     and Law Offices of Patrick J. McGuire, PC (Philip J. McGuire, of
                           counsel), for appellant.

                           Paul W. Grauer & Associates, of Schaumburg (Edward Adam Czapla, of
                           counsel), for appellee.


Panel                      JUSTICE STERBA delivered the judgment of the court, with opinion.
                           Presiding Justice Lavin and Justice Pucinski concurred in the judgment
                           and opinion.



                                             OPINION

¶1          This appeal arises out of the circuit court’s entry of judgment against respondent-
        appellant Home Depot USA, Inc. (Home Depot), pursuant to section 19(g) of the Illinois
        Workers’ Compensation Act (Act) (820 ILCS 305/19(g) (West 2008)). Petitioner-appellee
        Naresh Patel was injured while working for Home Depot and received an award of benefits
        from an arbitrator that was confirmed by the Illinois Workers’ Compensation Commission
        (Commission). Home Depot was granted a credit by the arbitrator in excess of the amount
        of the benefits award. The credit was also affirmed by the Commission. When Home Depot
        did not pay the award, Patel filed a petition in circuit court for judgment on the award and
        also requested penalties under section 19(g) of the Act (820 ILCS 305/19(g) (West 2008)).
        The circuit court entered judgment against Home Depot for the amount of the benefits award
        and later awarded Patel attorney fees, costs and interest. On appeal, Home Depot contends
        that the circuit court erred in denying its motion to dismiss and entering judgment in favor
        of Patel because Home Depot had already paid more than it was obligated to pay. For the
        reasons that follow, we affirm the judgment of the circuit court.

¶2                                        BACKGROUND
¶3          As a result of two separate work-related accidents, Patel filed claims with the
        Commission for benefits. The cases were heard together before an arbitrator. In January
        2004, the arbitrator entered an award in Patel’s favor in both cases. Patel was awarded a total
        of $22,798.54 in temporary total disability (TTD) benefits, penalties, and attorney fees
        related to the two claims. The arbitrator also granted Home Depot a credit of $27,357.47
        pursuant to section 8(j) of the Act (820 ILCS 305/8(j) (West 2008)), for TTD benefits
        previously paid to Patel.

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¶4         The arbitrator noted that Home Depot paid Patel TTD benefits starting in November
       2001. In November 2002, Home Depot terminated Patel’s TTD benefits without written
       notice. After Patel’s attorney demanded that TTD benefits be reinstated, Home Depot paid
       TTD benefits for several weeks before again terminating the benefits without written notice.
       This pattern repeated itself several times culminating with Home Depot’s refusal to pay any
       TTD benefits after mid-February 2003. The arbitrator found that Patel was entitled to TTD
       benefits from February 14, 2003 through October 20, 2003.
¶5         Home Depot petitioned the Commission for review of the arbitrator’s decision. In
       November 2005, the Commission confirmed the award of benefits and the credit. However,
       the Commission increased the amount of the credit to $32,357.47 and determined that it was
       not pursuant to section 8(j) of the Act. Patel then submitted a demand letter for payment of
       the benefits award to Home Depot. When Home Depot did not respond, Patel filed an
       application for entry of judgment and payment of compensation and penalties awarded under
       the Act pursuant to section 19(g) (820 ILCS 305/19(g) (West 2008)).
¶6         Home Depot filed a motion to dismiss pursuant to section 2-619.1 of the Illinois Code
       of Civil Procedure (Code) (735 ILCS 5/2-619.1 (West 2008)) on the grounds that it was
       entitled to offset the credit against the benefit award. The circuit court denied the motion and
       subsequently granted Patel’s motion for judgment on the pleadings pursuant to section 2-
       615(e) of the Code (735 ILCS 5/2-615(e) (West 2008)). The circuit court entered judgment
       against Home Depot for $22,798.54 and set a briefing schedule to address the issues of
       attorney fees, costs and additional interest. In September 2010, the circuit court entered
       judgment in favor of Patel for attorney fees of $47,000, costs of $5,315.31 and interest of
       $13,679.08. Home Depot timely filed this appeal.

¶7                                          ANALYSIS
¶8         The instant case involves the construction of section 19(g) of the Act (820 ILCS
       305/19(g) (West 2008)). The construction of a statute is a question of law, which is reviewed
       de novo. Johnson v. Johnson, 386 Ill. App. 3d 522, 534 (2008). Moreover, a reviewing court
       reviews de novo a lower court’s ruling on a motion to dismiss. Simmons v. Homatas, 236 Ill.
       2d 459, 477 (2010).
¶9         Home Depot filed its motion to dismiss under section 2-619.1 of the Code (735 ILCS
       5/2-619.1 (West 2008)). This section allows a defendant to raise alternative grounds for
       dismissal under section 2-615 (735 ILCS 5/2-615 (West 2008)) and section 2-619 (735 ILCS
       5/2-619 (West 2008)). Here, Home Depot argues that Patel’s complaint should have been
       dismissed pursuant to section 2-615 or, in the alternative, the complaint should have been
       dismissed pursuant to section 2-619.
¶ 10       A motion to dismiss under section 2-615 attacks the legal sufficiency of the complaint.
       Such a motion to dismiss does not raise affirmative factual defenses, but alleges defects
       appearing on the face of the pleadings. Kolegas v. Heftel Broadcasting Corp., 154 Ill. 2d 1,
       8 (1992). In ruling on a section 2-615 motion to dismiss, the court must accept as true all
       well-pled facts in the complaint and all reasonable inferences which can be drawn therefrom.
       McGrath v. Fahey, 126 Ill. 2d 78, 90 (1988). In making this determination, the court

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       interprets the allegations of the complaint in the light most favorable to the plaintiff. Id. A
       cause of action should not be dismissed on the pleadings unless it clearly appears that no set
       of facts can be proved under the pleading which will entitle plaintiff to recover. Reuben H.
       Donnelley Corp. v. Brauer, 275 Ill. App. 3d 300, 302 (1995).
¶ 11       Moreover, if a claim is based on a written document, the document itself must be
       attached to the pleading as an exhibit. The exhibit is part of the pleading for purposes of a
       motion to dismiss. If there is an inconsistency, the exhibit controls over the factual
       allegations in the pleading. F.H. Prince & Co. v. Towers Financial Corp., 275 Ill. App. 3d
       792, 797 (1995).
¶ 12       Conversely, a motion to dismiss pursuant to section 2-619 is properly used to raise
       affirmative matters that negate the claim and not to challenge the allegations of the plaintiff’s
       pleading. Provenzale v. Forister, 318 Ill. App. 3d 869, 878 (2001). This motion admits the
       legal sufficiency of a complaint, but asserts affirmative matters that avoid or defeat the
       allegations contained in the complaint. Miner v. Fashion Enterprises, Inc., 342 Ill. App. 3d
       405, 413 (2003).
¶ 13       Patel filed an application for entry of judgment and payment of compensation and
       penalties awarded pursuant to section 19(g) of the Act (820 ILCS 305/19(g) (West 2008)).
       Section 19(g) provides that a party may present a certified copy of the arbitrator’s award or
       the decision of the Commission to the circuit court and “the court shall enter a judgment in
       accordance therewith.” 820 ILCS 305/19(g) (West 2008). The statute further provides that
       in cases where the employer refuses to pay compensation according to the final award, the
       court will also tax as costs against the employer the reasonable costs and attorney fees in the
       arbitration proceedings and in the court entering the judgment. 820 ILCS 305/19(g) (West
       2008).
¶ 14       Home Depot sought involuntary dismissal of Patel’s application for entry of judgment
       on the grounds that Home Depot does not owe Patel anything. Home Depot claims the
       decisions of both the arbitrator and the Commission “destroy” Patel’s claim, as both state an
       award in favor of Patel and also the credit that Home Depot is entitled to because of its
       previous overpayments. Because the amount of the credit exceeds the amount of the award,
       Home Depot posits that the credit offsets the award to Patel and therefore Home Depot owes
       Patel nothing. We disagree.
¶ 15       Although Home Depot may ultimately obtain the credit the arbitrator and the
       Commission granted, it is not entitled to that credit under section 19(g). See Illinois Graphics
       Co. v. Nickum, 159 Ill. 2d 469 (1994). In Illinois Graphics, Nickum filed a workers’
       compensation claim with the Commission for an injury she allegedly suffered in the course
       of her employment with Illinois Graphics. Id. at 472. During the pendency of the workers’
       compensation matter, Illinois Graphics paid Nickum a sum of money for TTD benefits. Id.
       at 473. Following a hearing, an arbitrator denied Nickum’s claim. Id. Nickum appealed and
       the Commission subsequently affirmed the arbitrator’s decision and awarded Illinois
       Graphics a credit for the money it had already paid to Nickum. Id. at 473-74. Illinois
       Graphics then filed a petition pursuant to section 19(g) to obtain a judgment against Nickum
       for the amount of the credit. Id. at 474.


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¶ 16       In Illinois Graphics our supreme court stated, “The plain language of section 19(g) states
       that the Commission’s decision, on which any judgment is based, be one ‘providing for the
       payment of compensation according to this act.’ ” (Emphasis in original.) Id. at 480. The
       court went on to state, “[T]hese express terms fairly limit the type of decision to those which
       provide for the payment of compensation benefits.” (Emphasis in original.) Id. The court
       added, “The allowance of a credit within a decision or award merely serves to reduce the
       total payment of compensation benefits.” Id. The Illinois Graphics decision demonstrates
       that under section 19(g), credit does not equal compensation. The purpose of the Act was to
       provide a flow of benefits to compensate for lost wages and to compensate workers for loss
       of industrial earning capacity. Id. at 481. Although the court in Illinois Graphics noted that
       the employer had a common law remedy to recover the overpayment, the court held that it
       did not have a statutory remedy under section 19(g). Id. at 482.
¶ 17       In Karastamatis v. Industrial Comm’n, 306 Ill. App. 3d 206, 215 (1999), the appellate
       court recognized that the supreme court in Illinois Graphics held that section 19(g) does not
       enable an employer to recoup benefits paid to an employee. Instead, the Karastamatis court
       noted that Illinois Graphics specifically holds that any such action shall be a common law
       action. Id. Recoupment, restitution, or reimbursement, even if awarded by the Commission,
       does not constitute a decision providing for payment of benefits. Id. Although section 19(g)
       states that both an employer and an employee may seek relief under section 19(g), an
       employee is the only one who may have a decision providing for payment of benefits. Id. The
       Karastamatis court concluded that “should [an] employer desire to seek reimbursement from
       [a] claimant, the proper remedy would be to file suit in the circuit court based on common
       law [remedies]. There is no authority under the Act that would allow the Commission, the
       circuit court, or this court to award such credit in these proceedings.” Id.
¶ 18       Home Depot contends that Illinois Graphics is distinguishable because the employer
       there was attempting to file a petition under section 19(g) in order to recover the amount of
       the credit from the employee. Here, Home Depot argues that it is not attempting to recover
       the amount of its overpayment from Patel but merely seeking to offset the credit against the
       benefits award. Home Depot further contends that the case cited by Patel, Messamore v.
       Industrial Comm’n, 302 Ill. App. 3d 351 (1999), for the proposition that an employer is
       allowed to offset a credit against permanent partial disability (PPD) benefits but not against
       TTD benefits does not, in fact, bar a credit against TTD benefits.
¶ 19       In Messamore, the claimant was awarded both TTD and PPD benefits. Id. at 353. Due
       to an apparent clerical error on the part of the arbitrator, the employer overpaid the TTD
       benefits by approximately six months. Id. at 356. The Commission corrected the error and
       gave the employer a credit for the amount of the overpayment. Id. The Messamore court held
       that the employer was entitled to apply a credit for overpayment of TTD benefits against the
       PPD award. Id. at 359. The court stated that its reasoning applied whether the credit was
       sought against a permanent disability award or some other benefit paid after the TTD
       overpayment. Id. The court explained that if the employee were to receive a windfall at the
       employer’s expense due to an accidental overpayment of TTD benefits, it would encourage
       delays in payments because employers would seek to resolve every ambiguity before paying
       benefits. Id. The court noted that the decision in Illinois Graphics did not apply because the

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       employer there was bringing a claim for overpayments under section 19(g), not seeking a
       credit against future payments. Id. The Messamore court noted that section 19(g) was not an
       issue in the case before it. Id.
¶ 20       In the case sub judice, unlike the situation in Messamore, section 19(g) controls, so this
       court must follow the principle set forth in Illinois Graphics. Moreover, Home Depot is not
       seeking to apply its credit against future payments, but against the payment of benefits to
       which Patel was previously entitled. Home Depot paid TTD benefits for a certain time
       period, but refused to pay those benefits for an additional time period for which Patel was
       entitled to receive them, resulting in the arbitrator’s award of TTD benefits. The fact that
       Home Depot inadvertently overpaid on the benefits for a certain time period is not something
       for which section 19(g) provides a remedy. Patel did not receive an award for future
       payments, merely an award for payments to which he was previously entitled. Just as Home
       Depot cannot seek to recover the amount of the overpayment by filing a claim under section
       19(g), it cannot apply its credit for the overpayment to avoid an entry of judgment pursuant
       to section 19(g). Thus, Home Depot is not entitled to use the credit as an offset against the
       benefits awarded to Patel under section 19(g).
¶ 21       Accordingly, we affirm the circuit court’s decision denying Home Depot’s motion to
       dismiss and entering judgment in favor of Patel.

¶ 22      Affirmed.




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