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                                 Appellate Court                          Date: 2017.07.26
                                                                          13:20:00 -05'00'



    Salisbury v. Illinois Workers’ Compensation Comm’n, 2017 IL App (3d) 160138WC



Appellate Court      MARIE SALISBURY, Widow of Charles Salisbury, Deceased,
Caption              Appellant, v. ILLINOIS WORKERS’ COMPENSATION
                     COMMISSION et al. (Frank’s Flying Service, Inc., Appellee).



District & No.       Third District
                     Docket No. 3-16-0138WC



Filed                January 4, 2017
Rehearing denied     June 9, 2017



Decision Under       Appeal from the Circuit Court of Henry County, No. 13-MR-95; the
Review               Hon. Terence M. Patton, Judge, presiding.



Judgment             Affirmed.


Counsel on           Emmanuel F. Guyon, of Streator, for appellant.
Appeal
                     Shawn R. Biery, of Keefe, Campbell, Biery & Associates, of Chicago,
                     for appellee.



Panel                JUSTICE HUDSON delivered the judgment of the court, with
                     opinion.
                     Presiding Justice Holdridge and Justices Hoffman, Harris, and Moore
                     concurred in the judgment and opinion.
                                            OPINION

¶1                                      I. INTRODUCTION
¶2       Claimant, Marie Salisbury, widow of Charles Salisbury, appeals an order of the circuit
     court of Henry County confirming a decision of the Illinois Workers’ Compensation
     Commission (Commission) denying her motion for a lump-sum payout of benefits awarded
     in accordance with the Workers’ Compensation Act (Act) (820 ILCS 305/1 et seq. (West
     2008)). Claimant also contends that respondent, Frank’s Flying Service, Inc., is not entitled
     to a credit against the award based on its overpayment of benefits prior to the arbitration
     hearing. For the reasons that follow, we affirm.

¶3                                      II. BACKGROUND
¶4       Claimant’s decedent died in a work-related accident on June 12, 2009, when the crop
     duster he was piloting crashed. He was in respondent’s employ at the time. Following the
     accident, respondent began paying claimant $1,231.41 per week. An arbitration hearing was
     held on May 8, 2012. Claimant was awarded “death benefits, commencing 6/13/09, of
     $461.78/week to the surviving spouse, Marie Salisbury, on his or her own behalf and on
     behalf of the children.” Based on this ruling, respondent’s initial payment of $1,231.41 per
     week resulted in an overpayment of $769.83 per week. Based on this overpayment,
     respondent was “given a credit of $00.00 for TTD, $00.00 for TPD, and $192,594.22 for
     other benefits.”
¶5       Claimant filed a petition for a lump-sum payout. A hearing on that petition was heard
     before a commissioner on November 1, 2013. Claimant testified at the hearing. She testified
     that respondent began paying benefits shortly after her husband’s death on June 12, 2009.
     She stated that she understood that she had the option of taking a $500,000 lump-sum
     payment or payments for 25 years, and she wished to take the “present commuted value of
     the 25-year payments.” So far, respondent had paid her about $187,000, which she had
     mostly saved. She testified that she used some of it for living expenses. Claimant explained
     that she wanted a lump-sum payout because she did “not want to chance the loss of benefits
     in the future.” She would be “more comfortable” having “control of the those benefits” rather
     than having them be contingent on “changes in the law or *** the benefits schedule.”
     Moreover, if she passed away during the 25-year period, her benefits would cease and her
     “children would be deprived of the benefits from this award.” On cross-examination, she
     agreed that $197,930.33 was “probably close” to the amount she had so far received. She
     stated that she was not claiming any financial hardship as the basis of seeking a lump-sum
     payout. She has no minor children. On redirect-examination, she testified that she was
     employed at an ethanol plant and her income was sufficient to meet her needs.
¶6       The Commission denied claimant’s petition. It first acknowledged the controlling law.
     Lump-sum settlements are the exception rather than the rule. See Skaggs v. Industrial
     Comm’n, 371 Ill. 535, 539 (1939). Such a settlement is appropriate only if it is in the best
     interests of both parties, not simply the claimant. Bagwell v. Industrial Comm’n, 94 Ill. 2d
     101, 105 (1983); see also Illinois Zinc Co. v. Industrial Comm’n, 366 Ill. 480, 482 (1937).
     The Commission then noted that since the award to claimant was not a definite sum and
     could, in certain circumstances, be terminated, it was clearly not in respondent’s best
     interests to commute the ongoing payments to a lump sum. It then found that claimant “had

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       not indicated a basis for finding that a lump sum settlement would be in her own best
       interests.” She has been able to save some of the proceeds of the payments, and her income is
       sufficient to meet her needs. Any reliance on a possible change of benefits in the future, the
       Commission stated, was “speculative.” Moreover, claimant would lose any future increases
       in benefits. The circuit court of Henry County confirmed the Commission’s decision, and this
       appeal followed.

¶7                                          III. ANALYSIS
¶8         On appeal, claimant raises two issues. First, she contends that the Commission lacked the
       authority to allow respondent a credit against the ultimate award due to its initial
       overpayment of benefits to claimant. Second, she contends that the Commission erred in
       denying her request for a lump-sum payout. We disagree with both contentions.

¶9                                            A. The Credit
¶ 10       Claimant first argues that the credit given respondent for its overpayment of benefits
       prior to the arbitration hearing is void because the Commission has no authority to give a
       credit against the subsequent award of death benefits. Resolution of this issue requires us to
       consider whether the Commission has authority to recognize such a credit under the
       provisions of the Act, so a question of law subject to de novo review is presented (see
       Emerald Performance Materials, LLC v. Illinois Pollution Control Board, 2016 IL App (3d)
       150526, ¶ 25; see also Outboard Marine Corp. v. Industrial Comm’n, 309 Ill. App. 3d 1026,
       1029 (2000)). Claimant points out that the Commission, a creature of statute, has only the
       powers granted it by the legislature. Daniels v. Industrial Comm’n, 201 Ill. 2d 160, 165
       (2002). Any action taken outside its statutory authority is void. Id. According to claimant, the
       granting of a credit for excessive sums voluntarily paid by an employer is not specifically
       contemplated by statute, so the Commission has no authority to grant such a credit. Claimant
       concludes that the portion of the order granting that credit is void. We disagree as to the
       manner in which claimant frames this issue.
¶ 11       Quite simply, what is happening here is that the Commission is merely recognizing that
       an employer has already made a partial payment that goes to satisfying its obligation. There
       is no award in the sense that the Commission is not ordering the transfer of any obligations,
       benefits, or funds from claimant to respondent. Claimant is not being deprived of something
       she otherwise would have received but for the action of the Commission. Instead, respondent
       has voluntarily elected to satisfy part of its obligation prior to a formal order being
       entered—something which accrued to claimant’s benefit. In other words, the Commission
       did not award respondent anything, it simply factored respondent’s payments into its final
       order.
¶ 12       In World Color Press v. Industrial Comm’n, 125 Ill. App. 3d 469, 471-72 (1984), this
       court held that in the absence of a statutory bar, an employer could receive a credit for the
       overpayment of benefits. Discussing World Color Press in Messamore v. Industrial Comm’n,
       302 Ill. App. 3d 351, 358-59 (1999), we stated:
               “World Color Press does not explicitly state the overpayment of TTD benefits is
               being set off against a permanent award, but instead speaks only in vague terms of
               credit against ‘future compensation payments’ and the ‘total award.’ However, we
               apply the reasoning of World Color Press regardless of whether the credit is sought

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                against a permanent disability award or some other benefit paid after the TTD
                overpayment.”
       Similarly, here, the reasoning of World Color Press is relevant though we are confronted
       with the overpayment of a death benefit rather than TTD. Absent a statutory prohibition,
       there is no reason why the Commission cannot take into account respondent’s payments that
       occurred prior to the arbitration hearing.
¶ 13        Indeed, we note that section 7(e) of the Act (section 7 covers the amount of compensation
       in cases involving a fatality) states, in pertinent part, “The payments of compensation by the
       employer in accordance with the order or award of the Commission discharges such
       employer from all further obligation as to such compensation.” 820 ILCS 305/7(e) (West
       2008). It is axiomatic that we may not read into a statute any exceptions or limitations not
       contained in its plain language. Isaacs v. Industrial Comm’n, 138 Ill. App. 3d 392, 396
       (1985). Nothing in the plain language of this provision indicates that an employer should
       only be given credit for payments made subsequent to a formal award. Clearly, the payments
       respondent made leading up to the arbitration hearing were made in contemplation of an
       award.
¶ 14        Moreover, deep policy concerns are at issue here. Encouraging employers to make
       prompt and voluntary payments of benefits furthers the purpose of the Act. Messamore, 302
       Ill. App. 3d at 359. It is obvious that “[d]enying credits for errors such as the one in this case
       would encourage administrative delays as employers attempt to resolve every ambiguity
       before paying benefits.” Id. The primary purpose of the Act is to “provide employees with
       prompt and definite compensation.” (Emphasis added.) Mattern v. Industrial Comm’n, 216
       Ill. App. 3d 653, 654 (1991). Thus, claimant’s position runs counter to the beneficent
       purposes of the Act.
¶ 15        In short, claimant has identified no statutory provision prohibiting the Commission from
       recognizing a credit in circumstances such as this. Allowing the Commission to do so is
       consistent with the policies underlying the Act. Accordingly, we hold that the Commission
       did not err by taking into account respondent’s prior overpayment of benefits in fashioning
       an award.

¶ 16                                    B. The Lump-Sum Payout
¶ 17       Claimant also contests the Commission’s decision to deny her request for a lump-sum
       payout. Section 9 of the Act (820 ILCS 305/9 (West 2008)) sets forth the circumstances
       under which a lump-sum payout is appropriate. We review the Commission’s decision to
       grant or deny such a request using the manifest weight standard of review. Bagwell, 94 Ill. 2d
       at 106. Therefore, we will reverse only if an opposite conclusion to the Commission’s is
       clearly apparent. Teska v. Industrial Comm’n, 266 Ill. App. 3d 740, 741-42 (1994).
¶ 18       Our supreme court has held that “[l]ump-sum awards are the exception and not the rule.”
       Bagwell, 94 Ill. 2d at 106. A lump-sum payout will be awarded only if it is in the best
       interests of both parties. Id. at 105. As the proponent of the motion, the burden was on
       claimant to show that a lump-sum payout was warranted. Skaggs, 371 Ill. at 540.
¶ 19       The Commission found that claimant failed to carry that burden. Essentially, the
       Commission based its decision on a lack of evidence concerning either party’s best interests.
       The evidence available showed that claimant was suffering no economic hardship and had


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       saved most of respondent’s periodic payments. Claimant sets forth three reasons she believes
       indicated that a lump-sum payout would be appropriate in this case. First, she states that
       “[r]eplacement of [i]ncome lost to the family unit by absence of decedent’s income” justifies
       a payout. However, she does not explain why periodic payments do not ameliorate this
       concern. As noted, the evidence in the record shows no economic hardship. Second, she sets
       forth as another reason, “Replacement of the expectancy of an inheritance from the deceased
       person from lifetime efforts that would accrue to the family.” Given that claimant is able to
       save most of the periodic payments she receives, we do not see this as compelling support for
       a lump-sum payout. Moreover, this factor would be present in virtually every case such as
       this, so it does not serve to distinguish this case from others and explain why this case should
       be an exception to the rule that lump-sum payouts are not favored. See Bagwell, 94 Ill. 2d at
       106. Third, claimant states that the “[a]vailability of immediate financial resources to the
       family from invested funds if ready funds were needed” warrants a lump-sum payout.
       However, the evidence shows no such need, and again, this consideration does not
       distinguish this case from other similar cases.
¶ 20       Furthermore, claimant does not even attempt to establish that terminating periodic
       payments in favor of a lump-sum payout would not be in respondent’s best interests. Instead,
       she argues, “It is difficult to imagine any set of facts in any case involving periodic payments
       that could terminate by future unknown events to be in the best interest of both parties.”
       Later, she reiterates that “it seems impossible to envision or conjure a fact situation in a death
       case, where the best interests of both surviving spouse and family surviving [sic] and the
       employer can be served at the same time.” (Emphasis in original.) Perhaps so—however, that
       simply is consistent with the supreme court’s admonition that lump-sum payouts are the
       exception rather than the rule. Id. Section 9 clearly states that both parties’ interests are to be
       considered: “If, upon proper notice to the interested parties and a proper showing made
       before such Commission or any member thereof, it appears to the best interest of the parties
       that such compensation be so paid, the Commission may order the commutation of the
       compensation to an equivalent lump sum.” 820 ILCS 305/9 (West 2008). Ironically, claimant
       charges that the Commission has assumed the role of a “super-legislature” by “making its
       own determination of the wisdom of lump sum settlements” when, in fact, it is claimant who
       asks us to ignore a portion of section 9 and disregard respondent’s best interests.
¶ 21       In sum, claimant has shown no particular need or compelling reason on her or her
       family’s behalf for a lump-sum payout. Similarly, nothing indicates a lump-sum payout is in
       respondent’s best interests. Under such circumstances, we cannot say that an opposite
       conclusion to the Commission’s is clearly apparent and that a lump-sum payout clearly
       would be in the parties’ best interests. As such, the Commission’s decision on this issue is
       not against the manifest weight of the evidence. Claimant raises a number of additional
       points regarding the proper valuation of the lump-sum payout; however, given claimant’s
       failure to establish that the payout would be in the parties’ best interests, we need not address
       those arguments.

¶ 22                                      IV. CONCLUSION
¶ 23      In light of the foregoing, the order of the circuit court of Henry County confirming the
       decision of the Commission is affirmed.


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¶ 24   Affirmed.




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