                                  Illinois Official Reports

                                          Appellate Court



                 Paluch v. United Parcel Service, Inc., 2014 IL App (1st) 130621




Appellate Court              JAMES PALUCH, Plaintiff-Appellee, v. UNITED PARCEL
Caption                      SERVICE, INC., Defendant-Appellant.



District & No.               First District, Third Division
                             Docket No. 1-13-0621



Filed                        March 26, 2014
Rehearing denied             April 28, 2014
Modified upon
denial of rehearing          April 30, 2014



Held                         Due to an ambiguity in a workers’ compensation settlement agreement
(Note: This syllabus         as to whether plaintiff’s employer was required to pay $400,000 to
constitutes no part of the   plaintiff or $400,000 plus a Medicare set-aside annuity, the trial
opinion of the court but     court’s judgment that the employer had to pay the $400,000 plus the
has been prepared by the     annuity was reversed and the cause was remanded for an evidentiary
Reporter of Decisions        hearing.
for the convenience of
the reader.)



Decision Under               Appeal from the Circuit Court of Cook County, No. 12-L-50237; the
Review                       Hon. Daniel Gillespie, Judge, presiding.



Judgment                     Reversed and remanded.
     Counsel on                Lauren K. Meachum and Cathleen M. Hobson, both of Law Offices of
     Appeal                    Meachum, Starck & Boyle, of Chicago, for appellant.

                               Ivan M. Rittenberg and Steven R. Saks, both of Rittenberg, Buffen,
                               Gulbrandsen, Robinson & Saks, Ltd., of Chicago, for appellee.




     Panel                     PRESIDING JUSTICE HYMAN delivered the judgment of the court,
                               with opinion.
                               Justices Pucinski and Mason concurred in the judgment and opinion.




                                                OPINION

¶1         Sloppy, imprecise drafting can lead to legal wrangling. A single word in reciting the terms
       of a settlement, for example, can bring about intense litigation over interpretation. In drafting
       settlement agreements, lawyers should, quoting novelist Vladimir Nabokov’s advice to
       writers, “have the precision of a poet,” leaving out the poet’s creativity, originality or artistic
       flourishes. Had the lawyers here been more studious and careful in choosing a single word
       (“plus”), this case undoubtedly would not have been necessary.
¶2         Under the terms of a workers’ compensation settlement agreement between defendant
       United Parcel Service, Inc. (UPS), and its employee, James Paluch, UPS was required to pay
       Paluch an amount that UPS sets at $400,000 and Paluch sets at $400,000 plus a Medicare
       set-aside (MSA) annuity. After UPS refused to read the agreement in the manner that Paluch
       contended it should be read, he filed this action, arguing that UPS had not fully satisfied the
       agreement. The trial court agreed with Paluch. UPS now appeals, arguing that $400,000
       included the MSA.
¶3         We find the agreement ambiguous as to the total amount UPS owed to Paluch and reverse
       the trial court and remand for an evidentiary hearing because the settlement agreement is
       ambiguous and open to more than one interpretation. After this court issued its opinion on
       March 26, 2014, Paluch filed a petition for rehearing, which was denied and this modified
       opinion was issued.

¶4                                          BACKGROUND
¶5        Plaintiff James Paluch settled his worker’s compensation claim against defendant UPS.
       The agreement documenting the settlement received approval as an Illinois Workers’
       Compensation Commission (the Commission) settlement contract lump sum petition and
       order. The agreement states:
                   “Respondent agrees to pay and Petitioner agrees to accept $400,000.00 in a lump
               sum plus payment of a Medicare Set-Aside (MSA), in annuity form, in full and final
               settlement of all claims for benefits past, present and future based on injuries arising

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             out of an accident on or about July 11, 2006. This settlement represents as a
             compromise of wage-differential benefits in the amount of $218,419.04 under Section
             8(d)(1) of the Workers’ Compensation Act, plus funding of an MSA in the amount of
             $148,790.00, direct reimbursement of BCBS lien in the amount of $31,135.82 and
             direct reimbursement of AETNA lien in the amount of $1,655.14. Respondent will pay
             all necessary and related medical expenses pursuant to the fee schedule or negotiated
             rate, whichever is less, that have been submitted to Respondent prior to contract
             approval and that contain all the required data elements necessary to adjudicate the bills
             pursuant to Section 8.2(d). Petitioner is responsible for payment of any and all medical
             expenses not submitted prior to contract approval. Petitioner hereby foregoes any right
             to review or reopen the settlement and agrees that all rights under Section 8(a) and
             19(h) are expressly waived unless otherwise retained under the terms of this contract.
             The parties have taken Medicare’s interests into consideration and included with this
             settlement is a proposed MSA with initial funding of $106,650.00 and an annuity
             providing $3,329.87 per year continuing for life for a total proposed MSA of
             $148,790.00. The MSA shall be submitted to CMS for approval. Should CMS
             determine the MSA to be insufficient, the Respondent reserves the right to appeal the
             decision, and Respondent agrees to either modify the MSA consistent with CMS
             recommendations or elect to allow Petitioner to retain his medical rights under Section
             8(a). If the MSA is approved, then petitioner’s rights under section 8(a) will cease upon
             funding of the MSA and the matter will be finalized with no futher [sic] activity
             necessary at the Commission.”
     The next paragraph states:
                   “Total Amount of Settlement             $400,000.00
                   Deduction: Attorney’s Fees              $43,600.00 reduced from $80,000.00
                   Deduction: Medical reports, X-rays $2,611.84
                   Deduction: Other (explain)              $[blank]
                   Amount employee will receive            $353,788.16”
¶6       A social security rider to the settlement divided the award by Paluch’s life expectancy,
     stating “$353,788.16 divided by Petitioner’s life expectancy expressed in weeks is $282.31 per
     week.”
¶7       UPS paid $218,419.04 in wage-differential benefits, $31,135.82 reimbursing a Blue Cross
     Blue Shield lien, and $1,655.14 reimbursing an Aetna lien. UPS also submitted $148,790 for
     the MSA in annuity form to the Centers for Medicare and Medicaid Services (CMS). (The
     parties agree that the MSA is not due until the amount is approved by CMS.) Paluch filed a
     petition for judgment on award, alleging that UPS owed Paluch another $181,580.96 under the
     settlement. UPS moved to dismiss, claiming full satisfaction because the specific list of items
     to be paid by UPS, including the MSA, equaled exactly $400,000, and the settlement did not
     identify any other specific payments. Paluch countered that the $400,000 was exclusive of the
     MSA, citing the language obligating UPS to pay “$400,000.00 in a lump sum plus payment of
     a Medicare Set-Aside” (emphasis added).
¶8       The trial court initially granted UPS’s motion, finding that the parties intended the
     settlement to total $400,000, inclusive of the MSA. But the trial court reversed itself following
     Paluch’s motion to reconsider and entered judgment for Paluch.


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¶9         The trial court determined that the social security rider constituted conclusive evidence of
       the parties’ intent to exclude the MSA from the $400,000 award. The trial court reasoned that
       had the parties intended the MSA to be part of the award, they would have listed and deducted
       the MSA in calculating the rider. UPS appeals, arguing the settlement agreement
       unambiguously includes the MSA in the $400,000 award and, alternatively, if the agreement is
       ambiguous, the trial court should have held an evidentiary hearing rather than entering
       judgment in Paluch’s favor.

¶ 10                                             ANALYSIS
¶ 11        As a preliminary matter, Paluch argues that judgment in his favor was mandated under
       section 19(g) of the Illinois Workers’ Compensation Act (820 ILCS 305/19(g) (West 2010)),
       which limits enforcement of Commission orders. Section 19(g) provides that “either party may
       present *** a certified copy of the decision of the Commission when the same has become
       final, *** whereupon the court shall enter a judgment in accordance therewith.” 820 ILCS
       305/19(g) (West 2010). Accordingly, judgment on the award must be entered without the court
       questioning the Commission’s decision, even if the court disagrees with the Commission’s
       construction of the law. Ahlers v. Sears, Roebuck Co., 73 Ill. 2d 259, 268 (1978). Paluch argues
       that the court should enforce the judgment without determining the amount of the judgment or
       deciding whether it had been satisfied. Further, Paluch contends that section 19(f) of the
       Illinois Workers’ Compensation Act (820 ILCS 305/19(f) (West 2010)), which does not permit
       a review of a Commission order after “20 days of the receipt of notice of the decision of the
       Commission,” prohibits this court from reviewing the agreement itself. UPS responds that it
       does not challenge the validity of the agreement approved by the Commission, so section 19(f)
       is irrelevant. Rather, UPS contends it made full payment, which is a viable defense to a section
       19(g) petition. Dallas v. Ameren CIPS, 402 Ill. App. 3d 307, 312 (2010); Aurora East School
       District v. Dover, 363 Ill. App. 3d 1048, 1055 (2006).
¶ 12        We agree with UPS that payment can be raised as a defense to a section 19(g) petition.
       Whether an employer has refused to pay an arbitration award is a question of fact. Factual
       determinations made by the circuit court will not be overturned unless against the manifest
       weight of the evidence. Radosevich v. Industrial Comm’n, 367 Ill. App. 3d 769, 774 (2006). In
       determining whether there has been a refusal to pay, the circuit court may consider, among
       other things, (1) whether a demand was made for payment, (2) the length of time that
       transpired between the date the Commission’s decision became final and the filing of the
       section 19(g) application, (3) the negotiations and communications between the parties that
       took place during this period, (4) whether the Commission’s decision leaves room for
       good-faith disagreement as to the amount of the payments owed, and (5) whether and when a
       good-faith offer of settlement was presented. McGee v. Ractian Construction Co., 231 Ill. App.
       3d 929, 935 (1992). To determine if the Commission’s decision leaves room for disagreement
       over the amount owed and whether that amount has been paid by UPS, we turn, as did the
       circuit court, to the settlement agreement.
¶ 13        A settlement agreement is a release governed by contract law. Gassner v. Raynor
       Manufacturing Co., 409 Ill. App. 3d 995, 1006 (2011). When interpreting a contract, the court
       attempts to give effect to the parties’ intentions, which are best indicated by the plain meaning
       of the words of the contract. Gallagher v. Lenart, 226 Ill. 2d 208 (2007). If the words in the
       contract are clear and unambiguous, we must give them their plain, ordinary and popular

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       meaning. Thompson v. Gordon, 241 Ill. 2d 428, 441 (2011). But if the language of the contract
       is ambiguous, we may look to extrinsic evidence to determine the parties’ intent. Id. Language
       in a contract is ambiguous if it is “susceptible to more than one meaning.” Id. The mere fact
       that the parties disagree over the contract’s interpretation does not establish ambiguity.
       Intersport, Inc. v. National Collegiate Athletic Ass’n, 381 Ill. App. 3d 312, 319-20 (2008).
       Rather, instead of focusing on one clause or provision in isolation we must read the entire
       contract in context and construe it as a whole, viewing each provision in light of the other ones.
       Gallagher, 226 Ill. 2d at 233. We review a contract’s interpretation de novo. Carr v. Gateway,
       Inc., 241 Ill. 2d 15, 20 (2011); Dowling v. Chicago Options Associates, Inc., 226 Ill. 2d 277,
       285 (2007).
¶ 14       UPS contends that in the context of a workers’ compensation settlement agreement, an
       MSA is deemed to be a portion of the net proceeds of a workers’ compensation settlement
       unless the agreement specifically states otherwise. For support, UPS cites In re Marriage of
       Washkowiak, 2012 IL App (3d) 110174. In Washkowiak, the parties’ divorce settlement
       agreement granted the plaintiff ex-wife 17.5% of “net proceeds” from her ex-husband’s
       workers’ compensation settlement. The workers compensation agreement stated that the
       husband would be awarded “ ‘$365,000 ([which] does not include $70,000 MSA).’ ” Id. ¶ 5.
       When the trial court awarded the plaintiff $12,250, or 17.5% of the MSA, the husband
       appealed, arguing that the MSA was not part of the workers’ compensation settlement
       agreement. Id. ¶ 6. The appellate court affirmed, finding that “net proceeds” of the husband’s
       workers’ compensation settlement included the $70,000 MSA. Id. ¶ 10. Relying on
       Washkowiak, UPS asserts that because there is no language specifically excluding the MSA, it
       should be deemed to be a portion of the next proceeds. We disagree. The court in Washkowiak
       made no holdings as to the meaning of the language stating that the $365,000 award “ ‘does not
       include the $70,000 MSA.’ ” Id. ¶ 5. The court was interpreting the parties’ divorce settlement,
       not the workers’ compensation settlement, when it held that the “net proceeds” of the
       husband’s settlement included the MSA. UPS cites no other cases to support its assertion that
       an MSA must be deemed a part of the net proceeds absent language excluding it.
¶ 15       Turning to the language of the settlement, both UPS and Paluch contend it is unambiguous.
       Of course, they assert different theories about what “unambiguous” means.
¶ 16       Paluch argues that the sentence providing that UPS must pay him “$400,000.00 in a lump
       sum plus payment of a Medicare Set-Aside (MSA), in annuity form” shows that UPS owed
       him $400,000 in a lump sum exclusive of UPS’s obligation to fund the MSA. Paluch argues
       that the key word is “plus,” and that the MSA was in addition to the lump-sum payment.
       Paluch further argues that the MSA cannot be part of the $400,000 because when the
       settlement lists $353,788.16 as the “amount employee will receive,” the contract means that
       UPS must pay $353,788.16 directly to Paluch, not through an MSA. But the $400,000 includes
       amounts paid to other parties on Paluch’s behalf, such as the Blue Cross and Aetna liens.
       Therefore, the “amount employee will receive” includes amounts that UPS pays to third parties
       which inure to Paluch’s benefit like the MSA.
¶ 17       Conversely, UPS argues that the settlement agreement unambiguously requires UPS to pay
       Paluch $400,000, which includes the MSA, as evidenced by the fact that when the amounts it
       must pay for wage-differential benefits, the MSA, and direct reimbursement to Blue Cross
       Blue Shield and Aetna are added up, the total amount is $400,000. UPS asserts that because it
       has satisfied all of its obligations under the agreement, the trial court erred in granting Paluch’s

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       motion to reconsider and in entering a judgment in Paluch’s favor. But UPS’s interpretation
       fails to acknowledge the ambiguity created by the use of the word “plus” in the first sentence of
       the agreement. Had the agreement stated that “Petitioner agrees to accept $400,000.00 in a
       lump sum, which includes payment of a Medicare Set-Aside (MSA),” it would be evident that
       the parties intended for the MSA to be included in the $400,000 settlement amount.
¶ 18        The agreement has conflicting clauses. The first sentence of the agreement suggests the
       MSA is not included in the $400,000 award. But the list of specific items the agreement
       requires UPS to pay Paluch totals $400,000 suggests the MSA is included in the settlement
       amount. Further, if UPS owes more than what it has paid, the agreement does not state what
       other obligations UPS might have in addition to the MSA, wage-differential, and liens. Thus,
       because the four corners of the agreement are ambiguous, we may look to extrinsic evidence to
       try to determine the parties’ intent. Thompson, 241 Ill. 2d at 441-42.
¶ 19        Paluch argues the social security rider provides further evidence that the parties intended to
       exclude the MSA from the net settlement proceeds. The Social Security Administration
       reduces workers’ social security disability benefits if the worker’s disability benefits,
       including workers’ compensation settlements, exceed 80% of the employee’s predisability
       earnings. See 42 U.S.C. § 424a(a)(5) (2000). Paluch’s workers’ compensation settlement
       award was a lump sum. The social security rider prorated the award across Paluch’s life
       expectancy to use a weekly amount to reduce his social security disability benefits. The
       amount of the settlement that is dedicated to future medical expenses does not reduce social
       security benefits and this amount would not be used to calculate the prorated lump sum. 20
       C.F.R. § 404.408(d) (2012).
¶ 20        An MSA allocates a certain amount of a settlement toward future medical expenses
       because Medicare will not pay for medical services that a party was already compensated for
       by a workers’ compensation settlement. See 42 C.F.R. § 411.26 (2006). If a party appears to be
       shifting his or her obligation to pay for a worker’s future medical expenses onto Medicare by
       dedicating an insufficient amount for future medical expenses, the settlement will not be
       recognized. Id.
¶ 21        Paluch argues that the fact that the parties used the full $400,000 (less attorney fees and
       other expenses) to calculate the social security rider shows that this amount does not include
       the MSA. Accordingly, if the $400,000 included the MSA, the parties would have deducted the
       MSA before calculating the social security rider because the MSA represents future medical
       expenses. Otherwise, the parties unnecessarily reduced Paluch’s social security benefits by
       using the MSA amount representing future medical expenses.
¶ 22        The Commission does not have the authority to rule on social security matters and the
       IWCC approved the settlement agreement alone, not the social security rider. While the rider
       suggests Paluch understood his lump-sum payment would be $353,788.16, weighing against
       this interpretation, as previously noted, is the wording of the settlement agreement. In his
       petition for rehearing, Paluch asserts that nondeducted credits from the monetary award
       entered by the IWCC may not be awarded in a section 19(g) proceeding. Be that as it may,
       unclear from the record is exactly what amount the IWCC awarded, and contrary to Paluch’s
       contention, the social security rider only adds to the ambiguity in the settlement agreement
       language rather than clarifying it. To reiterate, what is not at issue is the IWCC’s award itself,
       but whether that award has been paid, and the circuit court has jurisdiction to make that
       determination, which we hold requires an evidentiary hearing.

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¶ 23       Lastly, Paluch asserts an argument alleging that CMS has denied the MSA as insufficient,
       and therefore, this should change the interpretation of the agreement. UPS denies this
       assertion. Paluch relies on facts outside of the record, and, thus, the argument will not be
       considered. Silvestros v. Silvestros, 206 Ill. App. 3d 84, 90 (1990).
¶ 24       Precision is important in writing. Otherwise, as here, the ambiguous wording requires an
       evidentiary hearing. We reverse the trial court’s holding and remand for further proceedings
       consistent with this order.

¶ 25      Reversed and remanded.




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