NO. 5-96-0071WC
IN THE
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
INDUSTRIAL COMMISSION DIVISION
_________________________________________________________________
NANCY ESCHBAUGH, ) Appeal from the
) Circuit Court of
Appellant, ) Shelby County.
)
v. ) No. 95-MR-11
)
THE INDUSTRIAL COMMISSION et al. ) Hon. Michael R. Weber,
(Continental Bondware, Appellee). ) Judge, presiding.
_________________________________________________________________
JUSTICE RAKOWSKI delivered the opinion of the court:
Nancy Eschbaugh (claimant) appeals from the judgment of the
circuit court confirming the decision of the Industrial Commission
(Commission), which dismissed claimant's petition to review an
award providing for compensation in installments pursuant to
section 19(h) of the Workers' Compensation Act (the Act) (820 ILCS
305/1 et seq. (West 1994)). Section 19(h) states in pertinent part
that an agreement or award under the Act providing for compensation
in installments "may at any time within 30 months after such
agreement or 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 1994). Finding
that claimant's petition was not timely filed within the 30-month
period, the Commission dismissed the petition for lack of subject
matter jurisdiction.
It is undisputed that claimant's petition to review an award
under section 19(h) of the Act was not timely filed. However,
claimant contends the Commission did not have the power to dismiss
the petition sua sponte, where neither claimant nor Continental
Bondware (employer) objected to the Commission's subject matter
jurisdiction to conduct a hearing pursuant to section 19(h) of the
Act. The precise issue we address is whether the time limitation
set forth in section 19(h) is jurisdictional or a statute of
limitations.
There is an important distinction between a limitations
provision that is statutory and one that is jurisdictional. A
statute of limitations is procedural in nature, affecting a
plaintiff's remedy only, but it does not alter substantive rights.
Fredman Brothers Furniture Co. v. Department of Revenue, 109 Ill.
2d 202, 209 (1985). It merely gives a time limit within which
legal action shall be brought, with the time beginning when the
action has accrued or ripened. Fredman Brothers Furniture Co., 109
Ill. 2d at 209. A statute of limitations is an affirmative defense
that may be waived by the parties and is open to pleas of estoppel.
Pantle v. Industrial Comm'n, 61 Ill. 2d 365, 367 (1975). In
workers' compensation cases, statutes of limitations are designed
to assure fairness to employers by protecting against claims that
are too old to be successfully investigated and defended. Goodson
v. Industrial Comm'n, 190 Ill. App. 3d 16, 19 (1989).
In contrast, a statute that creates substantive rights unknown
at common law and makes time a component part of the rights created
is not a statute of limitations. Rather, the prescribed time
period is viewed as a condition precedent to the plaintiff's right
to seek a remedy and is deemed jurisdictional. Fredman Brothers
Furniture Co., 109 Ill. 2d at 209-10. A jurisdictional limitation
period is an absolute requirement; it is not an affirmative defense
that is subject to waiver or estoppel.
The Act itself creates substantive rights, unknown to the
common law, pursuant to which employees may recover compensation
from their employers for accidental injuries or death suffered in
the course of employment. 820 ILCS 305/1 et seq. (West 1994). The
Act also prescribes certain time periods within which employees
must enforce those rights by filing notices of claims and petitions
to recover benefits. 820 ILCS 305/6(c), (d) (West 1994). The 45-
day notice-to-employers provision found in section 6(c) of the Act
is deemed jurisdictional (Ferguson v. Industrial Comm'n, 397 Ill.
348, 351 (1947); Ristow v. Industrial Comm'n, 39 Ill. 2d 410, 413
(1968)), whereas the time period for filing an application for
compensation pursuant to section 6(d) of the Act is considered a
statute of limitations that is subject to waiver and estoppel.
Tegeler v. Industrial Comm'n, No. 80498 (Ill. Oct. 18, 1996);
Baldock v. Industrial Comm'n, 63 Ill. 2d 124, 126 (1976); Pantle v.
Industrial Comm'n, 61 Ill. 2d 365, 367 (1975); Railway Express
Agency v. Industrial Comm'n, 415 Ill. 294, 299 (1953). Section
6(d) of the Act is viewed differently, arguably because the effect
of the failure to file a timely application is stated in these
words: "the right to file such application shall be barred." This
is language of limitations, not of jurisdiction. Railway Express
Agency, 415 Ill. at 299. Be it noted, however, that the limitation
period of section 6(d) has also been considered a jurisdictional
requirement and a condition precedent to maintaining an action
under the Act. Black v. Industrial Comm'n, 393 Ill. 187, 193
(1946); Creel v. Industrial Comm'n, 54 Ill. 2d 580, 588 (1973)
(Davis, J., dissenting). Remarkably, Illinois courts have not
squarely addressed the conflict surrounding section 6(d) of the
Act. In fact, the divergent cases cited above do not even
acknowledge one another.
In addition to the preaward limitation periods set forth in
sections 6(c) and 6(d) of the Act, the Act also contains limitation
periods that preclude review of awards beyond the statutory time
periods. 820 ILCS 305/19(b), (f) (West 1994). The cases are
legion that hold that the failure to strictly comply with sections
19(b) and 19(f) of the Act deprives the Commission and the courts
of subject matter jurisdiction. Northwestern Steel & Wire Co. v.
Industrial Comm'n, 37 Ill. 2d 112, 115 (1967) (section 19(b),
petition for review of arbitrator's decision to Commission);
Mattern v. Industrial Comm'n, 216 Ill. App. 3d 653, 654 (1991)
(same); Wiscons v. Industrial Comm'n, 176 Ill. App. 3d 898, 899
(1988) (same); Garcia v. Industrial Comm'n, 95 Ill. 2d 467, 469
(1983) (section 19(f), correction of clerical errors); Arrington v.
Industrial Comm'n, 96 Ill. 2d 505, 508-09 (1983) (section 19(f)(1),
petition for review of Commission's decision to circuit court);
Perusky v. Industrial Comm'n, 72 Ill. 2d 299, 301-02 (1978) (same);
Frank v. Industrial Comm'n, 276 Ill. App. 3d 214, 216-18 (1995)
(same); Fisher v. Industrial Comm'n, 231 Ill. App. 3d 1061, 1064
(1992) (same); Fortson v. Industrial Comm'n, 184 Ill. App. 3d 794,
795-96 (1989) (same); Sprinkman & Sons, Corp. v. Industrial Comm'n,
160 Ill. App. 3d 599, 600-01 (1987) (same).
Finally, section 19(h) of the Act, at issue here, grants the
Commission continuing jurisdiction over compensation claims for a
prescribed period of time. This provision allows an agreement or
award providing for compensation in installments to be reviewed by
the Commission at the request of either party for change of
disability of the employee at any time within 30 months after such
agreement or award. 820 ILCS 305/19(h) (West 1994). At least one
Illinois case has viewed this 30-month time limitation as jurisdic-
tional. See Ruff v. Industrial Comm'n, 149 Ill. App. 3d 73 (1986).
In Ruff, the petitioner argued the respondent waived the issue
of subject matter jurisdiction by failing to contend the Commission
lacked jurisdiction to hear the section 19(h) petition because it
was not timely filed. The court noted that the respondent's
jurisdictional claim was not waived, even though it was first
presented before the circuit court during its review of the
Commission's denial of the section 19(h) petition. Ruff, 149 Ill.
App. 3d at 78. The court found, however, that the petitioner filed
a timely section 19(h) petition and, thus, the Commission had
proper jurisdiction to hear his claim. Ruff, 149 Ill. App. 3d at
78.
The view espoused in Ruff, that the time limitation of section
19(h) is jurisdictional, has case law support from other states.
See Selden v. Workers' Compensation Appeals Board, 176 Cal. App. 3d
877, 222 Cal. Rptr. 450 (Cal. App. 1986) (statutory time limit for
filing a petition to increase award is jurisdictional); Budget
Luxury Inns, Inc. v. Boston, 407 So. 2d 997 (Fla. App. 1981); Garza
v. W.A. Jourdan, Inc., 572 P.2d 1276 (N.M. App. 1977) (limitation
period is jurisdictional and cannot be waived); Manrose v. Miami
Shipbuilding Corp., 23 So. 2d 733 (Fla. 1945); Tischer v. City of
Council Bluffs, 3 N.W.2d 166 (Iowa 1942). Moreover, this view
comports with the expression of our supreme court that there is no
sound reason to enlarge the period of time during which review may
be had under section 19(h) of the Act. Cuneo Press, Inc. v.
Industrial Comm'n, 51 Ill. 2d 548, 549-50 (1972); Greenway v.
Industrial Comm'n, 73 Ill. 2d 273, 276-77 (1978).
While we must acknowledge that section 19(h) of the Act is
remedial legislation that should be construed liberally to allow
review of awards for change in disability (Hardin Sign Co. v.
Industrial Comm'n, 154 Ill. App. 3d 386, 389 (1987)), a liberal
construction does not mean the Commission may disregard limitation
provisions of the Act. The purpose of section 19(h) of the Act is
to set a period of time in which the Commission may consider
whether an injury has recurred, increased, decreased, or ended.
Checker Taxi Co. v. Industrial Comm'n, 343 Ill. 139, 144 (1931).
The power of the Commission to review an award comes from the Act
itself, which creates the Commission's authority and fixes the time
when such authority must be exercised. Notman v. Industrial
Comm'n, 219 Ill. App. 3d 203, 205 (1991). The Commission, as an
administrative, nonjudicial body, has no presumption in favor of
jurisdiction, and through section 19(h), the legislature confined
the Commission's authority to review an award for change of
disability to a 30-month period. To permit review beyond the
statutory period would bypass this statutory restriction and
override the plain meaning of the Act.
Therefore, after examining the history and purposes of the
limitations period on review of awards under section 19(h) of the
Act, we are compelled to hold that the time provision set forth in
section 19(h) of the Act is jurisdictional. To hold otherwise
would be akin to "judicial legislation by judgment" (see Michelson
v. Industrial Comm'n, 375 Ill. 462, 467 (1941)) and detrimental to
the strong Illinois precedent holding that time limitations of the
Act are jurisdictional.
Having concluded that the time provision of section 19(h) is
jurisdictional, we can readily dismiss claimant's contentions that
employer consented to the jurisdiction of the Commission by
executing a section 19(h) proceeding stipulation form and waived
the limitations period by partaking in a hearing on the merits of
claimant's section 19(h) petition. It is well settled that the
issue of subject matter jurisdiction cannot be waived, stipulated
to, or consented to by the parties. Michelson, 375 Ill. at 470;
Taylor v. Industrial Comm'n, 221 Ill. App. 3d 701, 703-04 (1991);
Swope v. Northern Illinois Gas Co., 221 Ill. App. 3d 241, 243
(1991); Ruff, 149 Ill. App. 3d at 78; Mitchell v. Industrial
Comm'n, 148 Ill. App. 3d 690, 695 (1986). It can be raised at any
time and even sua sponte when necessary. Arrington v. Industrial
Comm'n, 96 Ill. 2d 505, 509 (1983); West v. Industrial Comm'n, 238
Ill. App. 3d 445, 446 (1992); Taylor, 221 Ill. App. 3d at 703;
Walsh v. Central Cold Storage Co., 324 Ill. App. 402, 419 (1944).
We find that claimant's reliance on Murphy v. Industrial
Comm'n, 408 Ill. 612 (1951), is misplaced. In Murphy, the
Commission had properly obtained jurisdiction by a petition filed
within the time allotted by the Act to review the arbitrator's
decision. Murphy, 408 Ill. at 615. The court held that the
Commission did not lose jurisdiction by a delay in filing the
transcript of proceedings six days late, where the parties appeared
before the Commission and did not object to its jurisdiction.
Murphy, 408 Ill. at 615. Murphy is distinguishable from the case
sub judice, where the Commission never had jurisdiction to begin
with because no timely petition was ever filed. Accordingly, the
Commission could not be conferred with subject matter jurisdiction
by the conduct of the parties. See Mitchell v. Industrial Comm'n,
148 Ill. App. 3d 690, 695 (1986) (holding that a court may not be
conferred with subject matter jurisdiction which is otherwise
absent).
In sum, we hold that the statutory limitations period of
section 19(h) of the Act is a jurisdictional requirement that may
be raised at any time and even sua sponte by the Commission. It is
an absolute and unconditional restriction on the right of review.
As such, the Commission is necessarily divested of its review
jurisdiction for change of disability 30 months after agreement or
award of compensation. There being no question that claimant
petitioned for review of an award beyond the time prescribed by
section 19(h) of the Act, the Commission had no jurisdiction to
review the award. Accordingly, we affirm the dismissal of
claimant's petition for lack of jurisdiction.
Affirmed.
McCULLOUGH, P.J., and COLWELL, HOLDRIDGE, and RARICK, JJ.,
concur.
NO. 5-96-0071WC
IN THE
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
INDUSTRIAL COMMISSION DIVISION
___________________________________________________________________________
NANCY ESCHBAUGH, ) Appeal from the
) Circuit Court of
Appellant, ) Shelby County.
)
v. ) No. 95-MR-11
)
THE INDUSTRIAL COMMISSION et al. ) Hon. Michael R. Weber,
(Continental Bondware, Appellee). ) Judge, presiding.
___________________________________________________________________________
Opinion Filed: December 30, 1996
___________________________________________________________________________
Justices: Honorable Thomas R. Rakowski, J.
Honorable John T. McCullough, P.J., and
Honorable Michael J. Colwell, J.,
Honorable William E. Holdridge, J., and
Honorable Philip J. Rarick, J.,
Concur
___________________________________________________________________________
Attorneys Warren E. Danz, Richard G. Leiser, 710 NE Jefferson, Peoria,
for IL 61603
Appellant
___________________________________________________________________________
Attorneys Robert A. Hoffman, Thomas, Mamer & Haughey, 30 Main Street,
for P.O. Box 560, Champaign, IL 61824-0560
Appellee
___________________________________________________________________________