                              2016 IL App (4th) 150152WC
                                                                       FILED
                                                                       April 29, 2016
                                                                       Carla Bender
                                      NO. 4-15-0152WC              4th District Appellate
                                                                         Court, IL
                        Opinion filed: April 29, 2016
________________________________________________________________________

                                          IN THE

                          APPELLATE COURT OF ILLINOIS

                                  FOURTH DISTRICT

            WORKERS' COMPENSATION COMMISSION DIVISION
________________________________________________________________________

GERALD WEAVER,                         )    Appeal from the
                                       )    Circuit Court of
      Appellant,                       )    Macon County.
                                       )
v.                                     )    No. 14 MR 446
                                       )
THE ILLINOIS WORKERS'                  )    Honorable
COMPENSATION COMMISSION, et al.        )    Thomas E. Little,
(Decatur Overhead Door, Appellee).     )    Judge, presiding.
________________________________________________________________________

        JUSTICE STEWART delivered the judgment of the court, with opinion.
        Presiding Justice Holdridge and Justices Hoffman, Hudson, and Harris concurred
in the judgment and opinion.

                                         OPINION

¶1     The claimant, Gerald Weaver, appeals the order of the circuit court of Macon

County confirming the decision of the Illinois Workers' Compensation Commission

(Commission) dismissing his petition for review under section 19(h) of the Workers'

Compensation Act (Act) (820 ILCS 305/19(h) (West 2012)) for lack of jurisdiction. For

the reasons that follow, we affirm.

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¶2                                   BACKGROUND

¶3     On January 22, 2009, an arbitrator found that the claimant sustained accidental

injuries arising out of and in the course of his employment with the employer, Decatur

Overhead Door. The arbitrator awarded the claimant permanent partial disability benefits

of $454.07 per week for 250 weeks based on her finding that the injuries sustained caused

permanent disability to the extent of 50% loss of use of the person as a whole.

¶4     On February 23, 2010, a majority of the Commission affirmed and adopted the

arbitrator's decision. The dissenting Commissioner thought that the award of 50% loss of

use of the person as a whole was inadequate.

¶5     On January 13, 2011, the circuit court, on judicial review, found the Commission's

decision against the manifest weight of the evidence. The court remanded the matter to

the Commission for further consideration in view of the dissenting Commissioner's

opinion, the opinions of the claimant's treating physicians, and the lack of concrete and

specific evidence of realistic alternative employment available to the claimant.

¶6     On June 30, 2011, the Commission issued its decision on remand, vacating its

original decision; finding the claimant permanently and totally disabled; and awarding

him permanent total disability benefits of $421.59 per week from November 3, 1999,

forward and for the rest of his life. The Commission noted that, although all three

members of the panel painstakingly reviewed the extensive record and concluded that the

claimant failed to show that he was permanently totally disabled, in light of the circuit

court's finding that the record contains no concrete and specific evidence of realistic

alternative employment available to him, they were compelled to find that he was entitled
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to permanent total disability benefits. On June 11, 2012, the circuit court, on judicial

review, confirmed the Commission's decision on remand.

¶7     On September 25, 2013, this court found that the Commission's original

determination that the claimant failed to prove he was permanently totally disabled and

that he was permanently disabled to the extent of 50% loss of use of the person as a

whole was not against the manifest weight of the evidence and that the circuit court,

therefore, erred in setting aside the Commission's original decision. Accordingly, this

court vacated the circuit court's June 11, 2012, decision; vacated the Commission's June

30, 2011, decision on remand; reversed the circuit court's January 13, 2011, decision

setting aside the Commission's original decision; and reinstated the Commission's

original February 23, 2010, decision.      Decatur Overhead Door v. Illinois Workers'

Compensation Comm'n, 2013 IL App (4th) 120639WC-U, ¶ 2.

¶8     On November 6, 2013, the claimant filed a petition for review under sections

19(h) and 8(a) of the Act (820 ILCS 305/19(h), 8(a) (West 2012)), seeking additional

permanency and medical expenses. The employer filed a motion to dismiss the section

19(h) petition, arguing it was filed beyond the 30-month period in which to file such a

petition and that the time for filing such a petition was not tolled by judicial review.

Noting that the 30-month period following entry of the Commission's original decision

expired on August 23, 2012, the employer argued that the claimant's November 6, 2013,

section 19(h) petition was untimely. The employer asked the Commission to dismiss the

section 19(h) petition and allow the claimant to proceed only on the section 8(a) petition.


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¶9     The employer's motion to dismiss the claimant's section 19(h) petition came before

the Commission for a hearing on January 30, 2014. At that time, the claimant submitted

his response to the motion, arguing that his section 19(h) petition was timely because it

was filed within 30 months of the Commission's June 30, 2011, decision on remand.

¶ 10   On April 23, 2014, the Commission granted the employer's motion to dismiss the

claimant's section 19(h) petition, finding that it was untimely because it was filed more

than 30 months after the Commission's original decision affirming the arbitrator's award.

The Commission noted that the 30-month period was not tolled by judicial review and

that this court had vacated the Commission's June 30, 2011, decision on remand.

¶ 11   On January 30, 2015, the circuit court, on judicial review, confirmed the

Commission's decision dismissing the section 19(h) petition. This appeal followed.

¶ 12                                  ANALYSIS

¶ 13   Section 19(h) of the Act provides, in pertinent part, that an award under the Act

providing for compensation in installments "may at any time within 30 months *** after

such *** 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 2012).

¶ 14   The purpose of section 19(h) is to set a period of time in which the Commission

may consider whether a disability has recurred, increased, diminished, or ended. Cuneo

Press, Inc. v. Industrial Comm'n, 51 Ill. 2d 548, 549, 283 N.E.2d 880, 881 (1972).

¶ 15   The 30-month period set out in section 19(h) "is a jurisdictional requirement that

may be raised at any time." Eschbaugh v. Industrial Comm'n, 286 Ill. App. 3d 963, 968,
                                          4
677 N.E.2d 438, 442 (1996). "It is an absolute and unconditional restriction on the right

of review." Id. Therefore, the Commission is divested of its review jurisdiction for

change of disability 30 months after an award of compensation. Id.

¶ 16   The 30-month period for filing a section 19(h) petition runs from the date of filing

of the Commission's decision, and judicial review of the Commission's decision does not

toll the 30-month period. Cuneo Press, Inc., 51 Ill. 2d at 549, 283 N.E.2d at 881.

¶ 17   Here, the Commission entered its original decision on February 23, 2010,

affirming and adopting the arbitrator's decision awarding the claimant permanent partial

disability benefits. It is this original decision and its permanency award that the claimant

seeks to modify. The employer argues, and the Commission agreed, that the 30-month

period for filing a section 19(h) petition began running on February 23, 2010, and expired

on August 23, 2012; that the 30-month period was not tolled by judicial review; and that

the claimant's November 6, 2013, section 19(h) petition was, therefore, untimely.

¶ 18   The claimant, on the other hand, argues that when the Commission entered a new

award for permanent total disability benefits on June 30, 2011, the 30-month period for

filing a section 19(h) petition began to run anew, and his November 6, 2013, section

19(h) petition was, therefore, timely. However, the claimant is not seeking to modify the

June 30, 2011, award of permanent total disability benefits; instead, he is seeking to

modify the February 23, 2010, award of permanent partial disability benefits. Moreover,

when he filed his section 19(h) petition on November 6, 2013, this court had already

vacated the June 30, 2011, decision and reinstated the February 23, 2010, decision and,

therefore, there was no June 30, 2011, award he could have sought to modify.
                                            5
¶ 19   The issue presented in this appeal is a question of law, which we review de novo.

See Venture-Newberg-Perini, Stone & Webster v. Illinois Workers' Compensation

Comm'n, 2013 IL 115728, ¶ 14 ("On questions of law, review is de novo, and a court is

not bound by the decision of the Commission.").

¶ 20   Our resolution of this issue is controlled by our supreme court's decision in Big

Muddy Coal & Iron Co. v. Industrial Comm'n, 289 Ill. 515, 124 N.E. 564 (1919). There,

after the circuit court confirmed the Commission's decision in favor of the plaintiff and

the supreme court affirmed the circuit court's judgment, the plaintiff filed a section 19(h)

petition claiming his disability had increased.     Id. at 516, 124 N.E. at 564.        The

Commission agreed and increased his compensation accordingly. Id. at 516, 124 N.E. at

565. However, the circuit court set aside the Commission's decision and certified that the

cause was proper for the supreme court's review. Id. at 516-17, 124 N.E. at 565.

¶ 21   The only issue before the supreme court was when the time period for filing the

section 19(h) petition began to run. Id. at 517, 124 N.E. at 565. The plaintiff argued that

the issues before the supreme court in the prior appeal were such as to make the award

undetermined and his rights pending until the court finally determined those issues, and,

therefore, his section 19(h) petition, which was filed within 18 months of the court's

decision, was timely. Id. The supreme court rejected that argument, stating:

             "The right to file application for review of an award accrues as soon as an

       award is made and is not held in abeyance by appeal or writ of error, nor is that

       right affected by it. The right of either party in compensation proceedings to file

       application for review of an award does not in any way depend upon whether or
                                           6
       not the award, if an award has been made, is at the time of the filing of such

       application enforceable or is being held in abeyance by appeal or writ of error. In

       other words, the right to file an application for review does not depend upon

       whether or not the award made is enforceable at the time the application is filed,

       except in cases where there has been a final determination of this court quashing

       the award. The purpose of paragraph (h) of section 19 is to give a period of time

       in which it may be determined whether the injuries received recurred, increased, or

       diminished. The processes of nature continue without regard to whether there is

       an appeal pending in the cause, and therefore the ground for an application for

       review may arise without regard to whether the cause is still pending on appeal.

       This period of time is eighteen months and extends from the time of *** the

       award." Id. at 518-19, 124 N.E. at 565.

¶ 22   In Cuneo Press, Inc., 51 Ill. 2d at 549, 283 N.E.2d at 881, the supreme court

adhered to its decision in Big Muddy Coal & Iron Co., noting that it had considered the

same issue in Big Muddy Coal & Iron Co. and "held that the statutory limitation is not

tolled by reason of judicial review of the award." The court declined to overrule Big

Muddy Coal & Iron Co. on public policy grounds, stating:

             "Section 19(h) provides that when the Industrial Commission orders that

       compensation payable in accordance with an award *** be paid in a lump sum the

       right of review under this section is terminated. In view of the fact that the right of

       review provided is so easily terminated we are not persuaded that public policy


                                              7
       requires judicial enlargement of the period during which the review may be

       sought." Id. at 549-50, 283 N.E.2d at 882.

¶ 23   Applying the supreme court's holding in Big Muddy Coal & Iron Co. to the facts

of this case leads us to the conclusion that the 30-month period for filing a section 19(h)

petition ran from the date of the Commission's original February 23, 2010, decision and

was not affected by the subsequent vacatur and reinstatement of that decision. As the

court noted in Big Muddy Coal & Iron Co., 289 Ill. at 519, 124 N.E. at 565, "the right to

file an application for review does not depend upon whether or not the award made is

enforceable at the time the application is filed, except in cases where there has been a

final determination of this court quashing the award."           Here, there was no final

determination of the supreme court (or of this court) quashing the original award. In fact,

this court reinstated the original award, and it is that award that the claimant seeks to

modify.

¶ 24   Accordingly, the claimant's section 19(h) petition was untimely because it was not

filed within 30 months of the original award. The Commission, therefore, properly

dismissed the claimant's section 19(h) petition for lack of jurisdiction.

¶ 25                                CONCLUSION

¶ 26   For the foregoing reasons, we affirm the judgment of the circuit court, which

confirmed the Commission's decision.

¶ 27   Affirmed.




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