1-05-1620

                                                   SIXTH DIVISION
                                                   December 15, 2006




No. 1-05-1620



VICKY ELSBURY, Mother and Next     )         Appeal from the
Friend of Jennifer Nicole and Kate )         Circuit Court
Jaclyn, Minor Children of Roger    )         of Cook County.
O'Connor, Deceased; and JAMES      )
DOBRY                              )
                                   )
     Plaintiffs-Appellees,         )
                                   )
     v.                            )         Nos. 04 CH 259 & 02 L
                                   )         51371 (consolidated)
STANN AND ASSOCIATES, ILLINOIS     )
EARTHCARE WORKERS' COMPENSATION    )
TRUST; GROUP SELF INSURERS'        )
INSOLVENCY FUND; THE STATE         )
DEPARTMENT OF INSURANCE, RATE      )
ADJUSTMENT FUND, JUDITH BAAR       )
TOPINKA, Treasurer, State of       )
Illinois, as ex officio guardian )
of the Illinois Group Workers'     )
Compensation Pool Insolvency Fund, )         Honorable
                                   )         Martin S. Agran,
     Defendants-Appellants.        )         Judge Presiding.



     JUSTICE O'MALLEY delivered the opinion of the court:

     Defendant, Judith Baar Topinka, the Treasurer of the State

of Illinois (the Treasurer), appeals the judgment of the circuit

court of Cook County granting plaintiffs' writ for mandamus.1



     1
         Following the filing of this appeal, the Elsbury plaintiffs

settled with defendants-appellants.     We subsequently granted the
1-05-1620

Plaintiff James Dobry brought this mandamus action against the

Treasurer seeking to compel her to tender the principal of her

general bond to the Group Workers' Compensation Pool Insolvency

Fund (the Insolvency Fund) to ensure payment of his award entered

by the Illinois Industrial Commission (Commission), now known as

the Illinois Workers' Compensation Commission.   See 820 ILCS

305/13 (West 2004).    The circuit court granted plaintiff's writ

of mandamus, holding that the Insolvency Fund was intended to

compensate individuals such as plaintiff and the relevant

statutes required the Treasurer to protect the Insolvency Fund.

For the reasons that follow, we affirm the judgment of the

circuit court.

                             BACKGROUND

     On April 17, 1996, plaintiff was injured while performing

his duties as a cement worker for his employer, Marko

Construction Company (MCC), and was thereafter unable to return

to his regular duties.   MCC contributed to the Earth Care

Workers' Compensation Trust (the Earth Trust) pursuant to section

4a of the Workers' Compensation Act (the Act).   820 ILCS 305/4a

et seq. (West 1996).   Section 4a of the Act authorized employers


parties' joint motion to dismiss the Elsbury portion of this

appeal on September 18, 2006.   The only remaining parties to this

appeal are the Treasurer and Dobry.

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with similar risks to form workers' compensation insurance pools

in order to pool risks and administer premiums and claims

themselves.    The Earth Trust was such a pool authorized by

section 4a of the Act.

     Following plaintiff's injury, the Earth Trust made payments

to him on his workers' compensation claim.    However, on October

26, 2000, plaintiff's payments from the Earth Trust ceased.

Subsequently, an order of liquidation was entered against the

Earth Trust.    On December 18, 2000, plaintiff filed an amended

application for adjustment of claim naming the Treasurer as a

party respondent pursuant to section 4a(5) of the Act, which

states in pertinent part:

        "The State Treasurer is ex-officio custodian of the Group

     Self-Insurers' Insolvency Fund.    Monies in the Fund shall be

     deposited the same as are State funds ***.    It shall be

     subject to audit the same as State funds and accounts and

     shall be protected by the general bond given by the State

     Treasurer.   It is considered always appropriated for the

     purposes of compensating employees who are eligible to

     receive benefits from their employers pursuant to the

     provisions of the Workers' Compensation Act *** when their

     employer is the member of a group self-insurer and the group

     self-insurer has been unable to pay compensation due to


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     financial insolvency either prior to or following the date

     of the award.   Monies in the Fund may be used to compensate

     any type of injury or occupational disease which is

     compensable under [the] Act.

        The State Treasurer shall be joined with the group self-

     insurer as party respondent in any claim, or application for

     adjustment of claim filed against a group self-insurer

     whenever the compensation and medical services provided by

     this Act may be unpaid by reason of default of an insolvent

     group self-insurer.

        Payment shall be made out of the Group Self-Insurers'

     Insolvency Fund only upon order of the Commission and only

     after the penal sum of the surety bond and/or securities and

     the assessment against the individual members of the group

     self-insurer in default have been exhausted." 820 ILCS

     305/4a(5) (West 1996).

     On January 1, 2001, the General Assembly repealed section 4a

of the Act and, through Public Act 91-757, enacted the Workers'

Compensation Pool Law (Pool Law) (215 ILCS 5/107a.01 et seq.

(West 2002)).   Pub. Act 91-757 §10 (eff. January 11, 2001).   The

portions of section 107a.13 of the Pool Law that are relevant to

the instant case are essentially identical to section 4a of the

Act with the exception of the manner in which payment from the


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Group Worjers' Compensation Pool Insolvency Fund (Insolvency

Fund) is ordered.   Section 107a.13(c) states that "[p]ayment

shall be made out of the Group Workers' Compensation Pool

Insolvency Fund only upon order of the Director [of Insurance]"

(215 ILCS 5/107a.13(c) (West 2002)), as opposed to payment upon

order from the Commission (820 ILCS 305/4a(5) (West 1996)).     The

Pool Law created the Insolvency Fund as the successor to the

Group Self-Insurers' Insolvency Fund (Self-Insurers' Fund).

Pursuant to the Pool Law, funds from the former would be

transferred to the latter on the Pool Law's enactment date.     215

ILCS 5/107a.13(a) (West 2002).

     On May 4, 2001, the Commission entered an order in favor of

plaintiff awarding him temporary total disability benefits and

medical expenses.   The findings of the Commission and its order

were uncontested.   The liquidation proceedings against the Earth

Trust were pending at the time of the Commission's order and MCC

was insolvent and could not be found.   On May 10, 2001, plaintiff

received a letter from the Director of Insurance (the Director),

which reads in relevant part:

        "This letter confirms that our Office will approve the

     payment from the Group Workers' Compensation Pool Insolvency

     Fund of the Medical and Temporary Total Disability payments

     which may be ordered paid on Mr. Dobry's claim by the


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     Arbitrator.

           Such an approval would be based on the current provision

     of 215 ILCS 5-107a.13, as well as other relevant laws, and

     in light our [sic] having no dispute as to your

     acknowledgment of amount previously paid on the subject

     injury."

On June 14, 2001, plaintiff began receiving payments from the

Fund for all accrued monies and for medical and disability

benefits.    On October 26, 2001, the time for filing a proof of

claim against the Earth Trust in its liquidation proceedings

expired.    Medical and disability payments continued from the

Insolvency Fund until March 24, 2002, five months following the

expiration of time to file a proof of claim against the Earth

Trust, when payments to plaintiff ceased without notice.    The

record does not show that plaintiff was advised of the expiration

date for filing a claim against the Earth Trust or instructed to

file a claim against the Earth Trust in order to continue

receiving benefits from the Insolvency Fund or Self-Insurers'

Fund.

     On May 9, 2002, the Industrial Commission's arbitrator ruled

that plaintiff was permanently and totally disabled and that he

was entitled to payments consistent with such a finding.    The

Commission further held that plaintiff's entitlement to the


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payments was clear and uncontested and that liability for

payments rested upon the State under either section 4a of the Act

or section 107a.13(b) of the Pool Law.    The State did not appeal,

seek clarification or modification of the ruling.    The State,

however, apparently made representations to the Commission that

it could not pay the benefits to plaintiff because both the Self-

Insurers' Fund and the Insolvency Fund were insolvent.    The

arbitrator, although acknowledging the State's representations,

specifically stated that the State failed to produce any evidence

or affidavits to support its claim.

     On November 13, 2002, plaintiff filed a writ of mandamus

against the Treasurer to compel her to fulfill her statutorily

mandated duty to financially protect the Insolvency Fund by

tendering to it her general bond.    Plaintiff filed his second

amended complaint on December 5, 2003, and a motion for summary

judgment on December 1, 2004.   The Treasurer argued, among other

things, that plaintiff was not entitled to payment from the

Insolvency Fund because he failed to timely file a claim against

the Earth Trust during the liquidation proceedings.    The

Treasurer's arguments were based on an affidavit issued by the

Chief Deputy Director of the Department of Insurance indicating

that plaintiff was not entitled to any benefits because he failed

to file a claim against the Earth Trust.


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1-05-1620

     The circuit court granted plaintiff's motion for summary

judgment following extensive briefing and oral arguments by the

parties.    The court found that plaintiff's request for mandamus

was proper, plaintiff had a right to payment from the Self-

Insurers' Fund or Insolvency Fund and the Treasurer failed to

produce any evidence or legal authority to support her claim that

plaintiff was required to file a timely claim against the Earth

Trust during its liquidation period to preserve his right to

payment from the Self-Insurers' Fund or Insolvency Fund.

     The Treasurer filed her timely appeal from the circuit

court’s ruling and filed a motion in this court to stay the lower

court’s writ of mandamus, which this court granted.

                              ANALYSIS

                        I. STANDARD OF REVIEW

     The Treasurer contends that the circuit court misconstrued

section 107a.13 of the Pool Law and erred by granting summary

judgment to plaintiff because: (1) plaintiff is not entitled to

payment from the Insolvency Fund because he failed to file a

claim against the Earth Trust during its liquidation; and (2)

section 107a.13 does not require the Treasurer to provide money

for the fund but, rather, only mandates that the Treasurer

protect the money that is paid to the fund received from other

sources.    We review a grant of summary judgment and issues of


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statutory construction, both of which concern questions of law,

de novo.    Read v. Sheahan, 359 Ill. App. 3d 89, 92 (2005);

O'Connor v. County of Cook, 337 Ill. App. 3d 902, 906 (2003).

               II. REQUIREMENTS FOR A WRIT OF MANDAMUS

     Mandamus is an extraordinary remedy which is used to enforce

" 'the performance of official duties by a public officer where

no exercise of discretion on his part is involved.' "     Noyola v.

Board of Education of the City of Chicago, 179 Ill. 2d 121, 133

(1997), quoting Madden v. Cronson, 114 Ill. 2d 504, 514 (1986).

It is not a writ of right but is awarded as a matter of judicial

discretion.    League of Women Voters v. County of Peoria, 121 Ill.

2d 236, 242 (1987).   The party seeking a writ of mandamus bears

the burden of establishing an absolute right to its issuance.

Romero v. O'Sullivan, 302 Ill. App. 3d 1031, 1034 (1999).      The

issuance of a writ of mandamus is appropriate only where the

plaintiff shows a clear, affirmative right to the requested

relief, a clear duty to act on the defendant's part, and clear

authority in the defendant to comply with the writ.      Lewis E. v.

Spagnolo, 186 Ill. 2d 198, 229 (1999).

     Plaintiff, by virtue of seeking a writ of mandamus, has the

burden of establishing three things in this case: (1) that he has

a clear right to payment form the Insolvency Fund; (2) that the

Treasurer has a clear duty to post her bond to the Insolvency


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Fund; and (3) that the Treasurer has the clear authority to post

her bond to protect the Fund should she be ordered to do so.2

See Lewis E., 186 Ill. 2d at 229.

                  III. RIGHT TO PAYMENT FROM THE FUND

     We first note that the Treasurer asserts that section

107a.13 of the Pool Law is the provision that should be applied

to the circumstances of this case.     In that regard, the Treasurer

argues that plaintiff has no right to payment from the Insolvency

Fund because the Director did not order the Fund to pay

plaintiff's benefits.     This argument lacks merit because it is

well-established law in Illinois that "a worker's rights under

the Workers' Compensation Act are governed by the law in effect

at the time of injury."     Westinghouse Airbake Co. v. Industrial

Comm'n, 306 Ill. App. 3d 853, 857 (1999), citing        Wilson-Raymond

Constructors Co. v. Industrial Comm'n, 79 Ill. 2d 45, 51 (1980).

The fact the Commission ordered payment from the Insolvency Fund

following the repeal of section 4a of the Act is of no

consequence here.     It is " 'the law in effect at the time of the

injury that governs the rights of the parties and not the law

effective at the time the award is made ***.' " (Emphasis

omitted.)     Wilson-Raymond, 79 Ill. 2d at 52-53, quoting Stanswsky


     2
         The Treasurer does not argue on appeal that she is not

authorized to post her bond.

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1-05-1620

v. Industrial Comm'n,   344 Ill. 436, 440 (1931).   Therefore,

section 4a of the Act applies to plaintiff's claim because it is

undisputed that his injury occurred in 1996 and that the

Commissions ordered the Insolvency Fund to pay plaintiff's

benefits.

     The Treasurer asserts that plaintiff was not eligible to

recover from the Insolvency Fund because he failed to follow the

procedure set forth in Article XIII of the Illinois Insurance

Code (215 ILCS 5/187 et seq. (West 2004)) (the Insurance Code).

In other words, once the time for filing a claim against an

insolvent risk pool has expired, a claimant's right to seek

payment from the Insolvency Fund will be extinguished.   We

disagree.

     In support of her position, the Treasurer cites to certain

sections of the Insurance Code for the proposition that plaintiff

failed to comply with the mandatory liquidation process specified

in Article XIII of the Code.   The Treasurer also cites to Cork v.

Associated International Insurance Managers Inc., 58 Ill. App. 2d

331, 340 (1965), which states: "The object of a liquidation

proceeding is to treat all creditors in a equitable manner, ***

the equal sharing by creditors in the assets of an insolvent in

proportion to their claims."   As a result of plaintiff’s failure

to properly file a timely claim pursuant to the Insurance Code,


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the Treasurer claims that he is precluded from receiving relief

from any source, at any time.

     Although we agree with the general principle announced in

Cork, we find that the Treasurer’s reliance on the Code and the

Cork case is misplaced.   First, there is no section in the Act or

Insurance Code that conditions the relief plaintiff is seeking on

his filing a timely liquidation claim pursuant to Article XIII.

In fact, the Pool Law specifically states that provisions of the

Insurance Code to which the Treasurer cites apply after December

31, 2000.   Section 107a.04(a)(1) provides:

        "[A]fter December 31, 2000, group workers' compensation

     pools shall for the purpose of this Article, and this

     Article only, be considered as though they were assessable

     domestic mutual insurance companies and subject to the

     following:

        (1) Article XII 1/2, Article XIII, Article XIII ½,

     Article XXIV ***."   215 ILCS 5/107a.04(a)(1) (West 2004).

It is clear, based on section 107a.04(a)(1), that Article XIII of

the Insurance Code did not apply to workers' compensation pools

before December 31, 2000.

     Furthermore, the Cork case is inapposite because it involved

an insurance broker that provided surplus line insurance services

to an international insurer that later became insolvent.   See


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generally Cork, 58 Ill. App. 2d 331.    The Cork case did not

address the relief sought by a plaintiff that was found to be

permanently disabled and entitled to payment pursuant to statute

from the Insolvency Fund.   The language of the Act and the Pool

Law, on the other hand, specifically addresses and provides for

the remedy that plaintiff seeks here.   The Insolvency Fund and

the Self-Insurers’ Fund "is considered always appropriated for

the purposes of compensating employees who are eligible to

receive benefits from their employers pursuant to the provisions

of the Workers' Compensation Act *** when their employer is the

member of a group self-insurer and the group self-insurer has

been unable to pay compensation due to financial insolvency

either prior to or following the date of the award."   820 ILCS

305/4a(5) (West 1996).   Contrary to the Treasurer’s assertion,

there is no condition precedent, expressed or implied, by the

legislature in this text of the statute that a worker participate

in the liquidation proceedings in Article XIII of the Insurance

Code.

     Even if we were to find that the liquidation proceedings of

Article XIII applied here, the fact that plaintiff failed to

participate does not preclude him from receiving benefits from

the Insolvency Fund.   First, we point out that although the

Treasurer assigns great importance to plaintiff’s compliance with


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the provisions of the Insurance Code, plaintiff was not notified

of his "requirement" to file a claim as mandated by section

208(1) of the Insurance Code, which states:

        "When in a liquidation, rehabilitation, or conservation

     proceeding against an insurer under this Article an order

     has been entered for the filing of claims, all persons who

     may have claims against such insurer shall present the same

     to the Liquidator, Rehabilitator or Conservator, as the case

     may be, at a place specified in the notice for filing of

     claims within such time as may be fixed by order of the

     Court.   The Director shall notify all persons who may have

     claims against such insurer as disclosed by its books and

     records, to present the same to him within the time as

     fixed.   The last date for the filing of proof of claim shall

     be specified in the notice.     Such notice shall be given in a

     manner determined by the Court.    The Director shall also

     cause a notice specifying the last day for filing of claims

     to be published once a week for three consecutive weeks in a

     newspaper published in the county where such proceedings are

     pending and in such other newspapers as he may deem

     advisable."   215 ILCS 5/208(1) (West 2004).

There is nothing in the record that suggests that plaintiff

received such notice to file a claim.    In fact, the record


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reveals that while the Earth Trust was being liquidated by the

Director, plaintiff continued to receive benefits from the

Insolvency Fund and was not aware that any further action was

necessary to continue his benefits.    Plaintiff relied on the

letter from the Director indicating that the Insolvency Fund

would pay his medical and disability benefits as ordered by the

Commission.

       Second, both sections 4a(5) of the Act and 107a.13 of the

Pool Law contemplate precisely the benefit that plaintiff was

receiving prior to its insolvency.    As stated above, the monies

in the Insolvency Fund are considered always appropriated when:

(1) employees are eligible to receive benefits from their

employer and the employer is a member of a group self-insurer

fund; (2) the group fund has become unable to pay due to

financial insolvency; and (3) the claimant suffers from any type

of injury or occupational disease that is compensable under the

Act.    The Treasurer does not dispute that plaintiff meets the

above required criteria to receive benefits from the Insolvency

Fund.    It is further undisputed that neither the Treasurer nor

the Director ever raised any objection to the fact that plaintiff

was entitled to receive medical and disability benefits under

section 4a of the Act until the Insolvency Fund became insolvent.

Because plaintiff has clearly satisfied the requirements of


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section 4a of the Act, we find that he is entitled to receive

payments from the Insolvency Fund.

            IV. TREASURER’S DUTY TO PROTECT THE FUND

     The Treasurer next argues that even if plaintiff were

entitled to payment from the Insolvency Fund, she has no duty to

post her general bond to the Fund because the Treasurer is only

required to protect the funds that have been deposited into the

Insolvency Fund and the Director, not the Treasurer, is

responsible for ensuring the solvency of the Fund.     Ramsay's

Estate v. People ex rel. Southern Illinois Penitentiary

Commissioners, 197 Ill. 572 (1902); People ex rel. Nelson v. West

Englewood Trust & Savings Bank, 353 Ill. 451 (1933).

Specifically, the Treasurer asserts that the plain language of

the Pool Law and the Act does not require the Treasurer to supply

funds to the Insolvency Fund, but only protect the funds that

have already been deposited in the Insolvency Fund.    While we

agree with the Treasurer that the Director is responsible for

collecting money to be deposited into the Insolvency Fund, this

does not mean that the Treasurer may ignore her statutory duty as

mandated by the Act.   Additionally, the cases to which the

Treasurer cites are inapposite to the issues before this court

because those cases did not involve a statute that required the

official to post a bond for the protection of a certain fund.


                                16
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See Ramsay's Estate v. People ex rel. Southern Illinois

Penitentiary Commissioners, 197 Ill. 572 (1902); People ex rel.

Nelson v. West Englewood Trust & Savings Bank, 353 Ill. 451

(1933).    We cannot construe section 4a of the Act, as the

Treasurer does, to only require her to protect the money in the

Insolvency Fund.    We hold, based on the plain language of the

statute, that the legislature did not intend for the Treasurer's

bond to simply protect the funds received from third parties, but

to protect the fund in a manner that effectuates its intended

purpose.

     The cardinal principle of statutory interpretation is that

the court must effectuate legislative intent.    In re Justin M.B.,

204 Ill. 2d 120, 123 (2003), citing Solich v. George & Anna

Portes Cancer Prevention Center of Chicago, Inc., 158 Ill. 2d 76,

81 (1994).    The best indicator of legislative intent is statutory

language.    Michigan Avenue National Bank v. County of Cook, 191

Ill. 2d 493, 504 (2000).    Courts should consider the statute in

its entirety, keeping in mind the subject it addresses and the

legislature's apparent objective in enacting it.    People v.

Taylor, 221 Ill. 2d 157, 162 (2006), citing People v. Davis, 199

Ill. 2d 130, 135 (2002).    However, a reviewing court's inquiry

must always begin with the language of the statute itself, which

is the surest and most reliable indicator of the legislature's


                                 17
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intent.   Taylor, 221 Ill. 2d at 162; People v. Pullen, 192 Ill.

2d 36, 42 (2000).   When the language of a statute is clear, it

must be applied as written without resort to further aids or

tools of interpretation.   In re R.L.S., 218 Ill. 2d 428, 433

(2006).   If statutory language is plain, the court cannot read

exceptions, limitations or conditions into a statute that the

legislature did not express.   In re D.D., 196 Ill. 2d 405, 419

(2001); Garza v. Navistar International Transportation Corp., 172

Ill. 2d 373, 378 (1996), quoting Solich, 158 Ill. 2d at 83.     Only

when the meaning of the enactment cannot be ascertained from the

language may a court look beyond the language and resort to aids

for construction.   In re D.D., 196 Ill. 2d at 419; Gem

Electronics of Monmouth, Inc. v. Department of Revenue, 183 Ill.

2d 470, 475 (1998); Solich, 158 Ill. 2d at 81.

     The operative language here can be found in section

107a.13(b) of the Pool Law, which states, in relevant part, that

"[t]he Fund shall be subject to audit the same as State funds and

accounts and shall be protected by the general bond given by the

State Treasurer."   215 ILCS 5/107a.13(b) (West 2004).    First, we

note that the language used by the legislature in section 4a of

the Act and 107a.13(b) of the Pool Law ("the Fund shall be ***

protected"), refers to the Fund and not the monies in the Fund.

Second, the legislature did not include language in section 4a of


                                18
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the Act or section 107a.13(b) of the Pool Law limiting the

Treasurer's bond to protect the monies in the Insolvency Fund at

a specified time.   Furthermore, if the legislature was inclined

to apply the Treasurer's bond only to the monies previously

received by the Insolvency Fund at a specified time, it could

have easily accomplished its objective by specifying such

limitations in the language of the provision.   The legislature

did not express such an intention and we will not write

limitations into a provision that are not expressed.

     Moreover, in our view, when reading section 4a of the Act or

section 107a.13 of the Pool Law, together with the Workers'

Compensation Act (820 ILCS 305/1 et seq. (West 2004)) in its

entirety, the result sought by the Treasurer is incompatible with

the purpose of the Act.   The fundamental purpose of the Act is to

promote the general welfare of the people of Illinois by

providing employees and their dependents prompt, sure and

definite compensation, together with a quick and efficient remedy

for injuries suffered in the course of employment.     General

American Life Insurance Co. v. Industrial Comm'n, 97 Ill. 2d 359,

370 (1983).   "The Workers' Compensation Act is a remedial statute

intended to provide financial protection for injured workers, and

it is to be liberally construed to accomplish that objective."

Flynn v. Industrial Comm'n, 211 Ill. 2d 546, 556 (2004), citing


                                19
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Peoria County Belwood Nursing Home v. Industrial Comm'n, 115 Ill.

2d 524, 529 (1987); Pathfinder Co. v. Industrial Comm'n, 62 Ill.

2d 556, 563 (1976); Jacobs v. Industrial Comm'n, 269 Ill. App. 3d

444, 447 (1995).

     We agree with plaintiff's construction of section 107a.13 of

the Pool Law, which is that the legislature intended that the

Insolvency Fund would be created with a minimum balance and

protected if necessary by the Treasurer's bond, for the purpose

of paying benefits to injured workers who would otherwise receive

compensation from an insolvent pooled risk fund.    Additional

support for this construction is found in section 4a-1 of the

Act, where the legislature established an advisory board for the

purpose of, among other things, "providing for the continuation

of workers' compensation and occupational disease benefits due

and unpaid or interrupted due to the inability of an insolvent

self-insurer."   820 ILCS 305/4a-1 (West 1996).   We thus reject

the Treasurer's interpretation of the Act which would only

protect monies received by the Insolvency Fund, thereby limiting

employees' benefits and frustrating the purpose of the Act when a

group risk pool becomes insolvent.

     Based on the language of section 4a of the Act, section

107a.13 of the Pool Law and the stated purpose of the Act

generally, we conclude that the intent of the legislature was to


                                20
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ensure payment of workers' benefits from the Insolvency Fund,

without interruption by having the Treasurer protect the fund

with her bond.

     We find it important to note that plaintiff asks this court

to order the Director to commence payment from the Insolvency

Fund once monies are deposited therein.     The Director, however,

is not a party to this appeal and no relief was sought against

him in the circuit court.    We, therefore, deny plaintiff's

request.    This ruling does not affect plaintiff's right to

receive benefits from the Fund as explained previously in this

opinion.

                            V. CONCLUSION

     For the foregoing reasons, we hold that plaintiff was

clearly entitled to payment from the Insolvency Fund, he was not

required to file a claim against the Earth Trust in order to be

eligible for benefits from the Insolvency Fund and the Treasurer

had a clear duty to post her general bond to protect the

Insolvency Fund pursuant to the Act.    As a result, the circuit

court properly granted summary judgment and a writ of mandamus in

favor of plaintiff.    Accordingly, the judgment of the circuit

court is affirmed.

     Affirmed and writ awarded.

     McNULTY and JOSEPH GORDON, JJ., concur.


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