Dallas v. Cips

NO. 4-09-0753 Filed 6/21/10

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

CHARLES DALLAS, ) Appeal from
Plaintiff-Appellee and ) Circuit Court of
Cross-Appellant, ) Sangamon County
v. ) No. 09MR123
AMEREN CIPS, )
Defendant-Appellant and ) Honorable
Cross-Appellee. ) Patrick W. Kelley,
) Judge Presiding.
_________________________________________________________________

PRESIDING JUSTICE MYERSCOUGH delivered the opinion of

the court:

Defendant, Ameren CIPS, appeals an order of the circuit

court entering judgment for plaintiff, Charles Dallas, pursuant

to an application for entry of judgment filed by plaintiff under

section 19(g) of the Workers' Compensation Act (Act) (820 ILCS

305/19(g) (West 2008)). Plaintiff cross-appeals, seeking costs

and attorney fees on appeal. For the reasons that follow, we

affirm the circuit court and deny plaintiff's request for costs

and attorney fees on appeal.

I. BACKGROUND

On December 14, 1998, plaintiff suffered an injury to

his back while working for defendant. On June 24, 2004, follow-

ing a hearing, an arbitrator issued a decision granting plaintiff

benefits under the Act.

The arbitrator found plaintiff had a compensable injury
that resulted in two lumbar surgeries. Permanent restrictions

placed on plaintiff precluded him from returning to his work with

defendant as a lineman or his previous work as a farm laborer.

Although the arbitrator found plaintiff did not meet his burden

of proof in establishing permanent total disability, plaintiff

did qualify for a wage differential (permanent wage loss) under

section 8(d)(1) of the Act (820 ILCS 305/8(d)(1) (West 2002)).

Specifically, the arbitrator made the following finding on the

disputed issue of the nature and extent of the injury:

"It is found [plaintiff] has sustained

his burden of proof in establishing entitle-

ment to a permanent wage loss under [s]ection

8(d)(1) of the Act as of [the] date of maxi-

mum medical improvement, January 9, 2003.

This wage differential of $465.67 begins as

of January 9, 2003[,] and shall apply as long

as the disability lasts."

The arbitrator ordered defendant to pay plaintiff temporary total

disability benefits of $811.94 per week for 177 4/7 weeks (August

12, 1999, through January 9, 2003). The arbitrator also ordered

defendant to pay plaintiff as follows:

"the sum of $456.67 [sic] per week for a

further period of 68 6/7 weeks, as provided

in section 8(d)(1) of the Act because the

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 injuries sustained caused [w]age loss, lim-

ited to the maximum PPD rate as set forth

above of $465.67, from 01/09/03 through the

date of trial, and ongoing thereafter for the

duration of the disability." (Emphasis in

original.)

Neither party filed a petition for review of the arbitrator's

decision. The arbitrator's decision, therefore, became the

decision of the Illinois Workers' Compensation Commission (Com-

mission). See 820 ILCS 305/19(b) (West 2002) (unless a petition

for review is filed within 30 days, the arbitrator's decision

shall become the decision of the Commission and, absent fraud,

shall be conclusive). (For the sake of clarity, this court will,

like the parties, continue to refer to the decision as the

arbitrator's decision.)

On March 25, 2009, plaintiff filed in the circuit court

an application for entry of judgment pursuant to section 19(g) of

the Act (820 ILCS 305/19(g) (West 2008)). In the application for

entry of judgment, plaintiff asserted that no review of the

arbitrator's decision was pending and the time for review of the

arbitrator's decision had passed. Plaintiff also alleged defen-

dant was "out of time to challenge the arbitrator's decision or

pursue any action to assert the disability of the employee has

subsequently recurred, increased, diminished, or ended."

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 Plaintiff further alleged that defendant paid the

weekly wage-differential benefits to plaintiff for several years

in accordance with the arbitrator's decision. However, on

January 24, 2009, defendant informed plaintiff the weekly wage-

differential payments would be terminated. Plaintiff had not

received weekly wage-differential payments since the end of

January 2009. Plaintiff sought entry of judgment and an award of

costs and attorney fees.

On April 22, 2009, defendant filed a responsive plead-

ing. Defendant agreed that (1) the time for review of the

arbitrator's decision had passed, (2) defendant had complied with

the arbitrator's decision until "the recent developments, ques-

tioning how long the disability has lasted," (3) defendant

notified plaintiff as to the basis and date of termination of the

wage-differential benefits, and (4) no benefits had been paid as

of the date of the termination of the wage-differential benefits.

Defendant disputed that defendant was out of time to challenge

the arbitrator's decision or pursue any remedy, "in view of

evidence subsequently gathered questioning whether the disabil-

ity, that served as premise for the [d]ecision, has continued."

Defendant also disputed whether the failure to pay was improper

and its responsibility for costs and attorney fees.

On June 18, 2009, plaintiff filed a motion for judgment

on the pleadings. On that same date, defendant filed a motion

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for leave to file "[c]ounterclaim/[a]ffirmative [d]efenses for

[e]quitable [r]elief" (hereinafter referred to as the counter-

claim). Defendant attached to its motion for leave a proposed

counterclaim for equitable relief.

In the motion for leave, defendant alleged that follow-

ing plaintiff's injury, plaintiff was unable to return to work as

a lineman for defendant. After expiration of the time for review

of the arbitrator's decision, plaintiff obtained full-time

employment as a lineman at an hourly rate in excess of his rate

of pay with defendant. Defendant believed plaintiff's alleged

disability had ended or diminished. Therefore, in January 2009,

defendant terminated plaintiff's wage-differential benefits.

Defendant further asserted it had no adequate remedy at

law because the time for review had passed. Defendant argued

plaintiff was entitled to the wage-differential benefits only so

long as the disability lasted, and, because plaintiff was no

longer incapacitated from working as a lineman, plaintiff was not

entitled to receive the wage-differential benefits. Defendant's

proposed counterclaim sought an order that (1) defendant was no

longer obligated to pay plaintiff wage-differential benefits and

(2) the wage-differential benefits received by plaintiff after he

became reemployed as a lineman should be held in constructive

trust for the benefit of defendant and conveyed to defendant.

Defendant also filed a motion seeking to stay entry or enforce-

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ment of judgment under section 19(g) until the court determined

whether defendant was entitled to equitable relief.

On July 2, 2009, plaintiff filed a motion to strike

defendant's motions for leave and for a stay. Plaintiff argued

the circuit court only had jurisdiction to determine whether the

requirements of section 19(g) of the Act had been met and enter

the workers' compensation award as a civil court judgment.

On July 8, 2009, the circuit court held a hearing. No

transcript, bystander's report, or agreed statement of facts

pertaining to this hearing has been provided on appeal.

On September 1, 2009, the circuit court entered an

order denying (1) defendant's motion for leave to file the

counterclaim, (2) defendant's motion for stay, and (3) plain-

tiff's motion to strike defendant's motions. The court granted

plaintiff's motion for judgment on the pleadings. The court

entered judgment in favor of plaintiff and against defendant (1)

in accordance with the arbitrator's decision and (2) in the

amount of $5,705.50 for attorney fees and costs.

On October 1, 2009, defendant filed a notice of appeal.

On October 7, 2009, plaintiff filed a notice of cross-appeal for

the purpose of requesting additional fees and costs on appeal.

II. ANALYSIS

A. Issues Raised in Defendant's Appeal

In its direct appeal, defendant argues (1) defendant is

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without an adequate remedy at law and a court of equity should

determine whether defendant must continue to pay benefits to

plaintiff and (2) defendant should have been granted leave to

amend.

Generally, a trial court's decision on whether to grant

leave to file a counterclaim or an affirmative defense is re-

viewed for an abuse of discretion. See, e.g., Todd W. Musburger,

Ltd. v. Meier, 394 Ill. App. 3d 781, 796, 914 N.E.2d 1195, 1210

(2009) (involving leave to file amended affirmative defenses);

Trustees of Schools of Township 42 North, Range 11, East of Third

Principal Meridian, Cook County, Illinois v. Schroeder, 8 Ill.

App. 3d 122, 124, 289 N.E.2d 247, 249 (1972) (holding that the

"trial court had discretion to allow or deny filing of the

counterclaim" postdecree). Here, however, the issue raised by

defendant requires statutory construction--whether the Act

permitted such a defense in an action under section 19(g) of the

Act. Therefore, our review is de novo. See, e.g., Cassens

Transport Co. v. Illinois Industrial Comm'n, 218 Ill. 2d 519,

524-25, 844 N.E.2d 414, 418-19 (2006) (reviewing de novo whether

the Commission had jurisdiction to reopen a 10-year-old wage-

differential award de novo because the case required interpreta-

tion of section 8(d)(1) of the Act).

"Proceedings under the Workers' Compensation Act are

purely statutory, and courts can obtain jurisdiction only in the

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manner provided by that Act." Beasley v. Industrial Comm'n, 198

Ill. App. 3d 460, 464, 555 N.E.2d 1172, 1174 (1990); see also

Kavonius v. Industrial Comm'n, 314 Ill. App. 3d 166, 169, 731

N.E.2d 1287, 1290 (2000) (noting that circuit courts exercise

special statutory jurisdiction in workers' compensation proceed-

ings and strict compliance with the statute is required to vest

the court with subject-matter jurisdiction). Section 19(g) of

the Act gives circuit courts the authority to render judgment in

accordance with an award or decision of the Commission when a

certified copy of the decision is presented to the court. Ahlers

v. Sears, Roebuck Co., 73 Ill. 2d 259, 264, 383 N.E.2d 207, 209

(1978). Section 19(g) provides as follows:

"Except in the case of a claim against

the State of Illinois, either party may pres-

ent a certified copy of the award of the

[a]rbitrator, or a certified copy of the

decision of the Commission when the same has

become final, when no proceedings for review

are pending, providing for the payment of

compensation according to this Act, to the

Circuit Court of the county in which such

accident occurred or either of the parties

are residents, whereupon the court shall

enter a judgment in accordance therewith. In

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 a case where the employer refuses to pay

compensation according to such final award or

such final decision upon which such judgment

is entered[,] the court shall in entering

judgment thereon, tax as costs against him

the reasonable costs and attorney fees in the

arbitration proceedings and in the court

entering the judgment for the person in whose

favor the judgment is entered, which judgment

and costs taxed as herein provided shall,

until and unless set aside, have the same

effect as though duly entered in an action

duly tried and determined by the court, and

shall with like effect, be entered and dock-

eted." 820 ILCS 305/19(g) (West 2008).

Section 19(g) is "designed to permit speedy entry of

judgment on an award." Aurora East School District v. Dover, 363

Ill. App. 3d 1048, 1055, 846 N.E.2d 623, 629 (2006). The circuit

court's inquiry is limited to determining whether the require-

ments of section 19(g) have been met. Ahlers, 73 Ill. 2d at 268,

383 N.E.2d at 211. The court cannot question the jurisdiction of

the Commission, question the legality of the Commission's ac-

tions, review the Commission's decision, or "otherwise construe

the Act, even if the decision appears too large on its face."

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Aurora East School District, 363 Ill. App. 3d at 1055, 846 N.E.2d

at 629; see also Ahlers, 73 Ill. 2d at 268, 383 N.E.2d at 211

(the court can refuse to "enter judgment only, for example, when

a lack of jurisdiction appears on the face of the record"). The

only defense to a section 19(g) petition is full payment of the

final award. Aurora East School District, 363 Ill. App. 3d at

1055, 846 N.E.2d at 630.

In this appeal, defendant does not challenge whether

the requirements of section 19(g) have been met; nor does defen-

dant assert that full payment has been tendered. Defendant only

challenges the circuit court's refusal to consider defendant's

claim that plaintiff was no longer entitled to a wage-differen-

tial payment.

Such an argument is not appropriately raised in a

section 19(g) proceeding. See McCormick v. McDougal-Hartmann

Co., 47 Ill. 2d 340, 343, 265 N.E.2d 610, 612 (1970) (employer

could not raise, in an action to enforce an award of compensation

under section 19(g), its claim that it was entitled to credit for

recovery the employee received from a third party); Franklin v.

Wellco Co., 5 Ill. App. 3d 731, 734, 283 N.E.2d 913, 915 (1972)

("An employer cannot have the award reviewed by filing an answer

in an action brought by the employee under section 19(g) to

enforce the award"). Therefore, the circuit court did not have

jurisdiction to review the award and did not err by denying

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defendant leave to file its counterclaim.

Defendant was not without a remedy. As noted, the

arbitrator awarded plaintiff a wage differential pursuant to

section 8(d)(1) of the Act (820 ILCS 305/8(d)(1) (West 2002)).

Section 8(d)(1) of the Act "provides that an employee who is

partially incapacitated from pursuing his usual and customary

line of employment shall receive a portion of the difference

between his former wages and the wages he earns or is able to

earn in his new employment." Cassens, 218 Ill. 2d at 522, 844

N.E.2d at 417, citing 820 ILCS 305/8(d)(1) (West 2002). "An

employee receiving an installment award under section 8(d)(1) is

entitled to compensation 'for the duration of his disability.'"

Cassens, 218 Ill. 2d at 522, 844 N.E.2d at 417, quoting 820 ILCS

305/8(d)(1) (West 2002).

Section 8(d)(1) itself does not "authorize the Commis-

sion to reopen final installment awards for partial disability."

Cassens, 218 Ill. 2d at 528, 844 N.E.2d at 421. However, under

section 19(h) of the Act, the Commission has the authority, for a

proscribed period of time, to review an installment award. See

Alvarado v. Industrial Comm'n, 216 Ill. 2d 547, 555, 837 N.E.2d

909, 915 (2005) (under section 19(h), where the employee's

disability has recurred, increased, diminished, or ended, the

Commission may review an award); Eschbaugh v. Industrial Comm'n,

286 Ill. App. 3d 963, 966, 677 N.E.2d 438, 441 (1996) (finding

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section 19(h) of the Act gives the Commission continuing juris-

diction over an award providing for compensation in installments

for a proscribed period of time, and the time provision of

section 19(h) jurisdictional).

Section 19(h) provides as follows:

"An agreement or award under this Act

providing for compensation in installments,

may at any time within 18 months after such

agreement or award be reviewed by the Commis-

sion at the request of either the employer or

the employee, on the ground that the disabil-

ity of the employee has subsequently re-

curred, increased, diminished[,] or ended.

However, as to accidents occurring sub-

sequent to July 1, 1955, which are covered by

any agreement or award under this Act provid-

ing for compensation in installments made as

a result of such accident, such agreement or

award may at any time within 30 months, or 60

months in the case of an award under [s]ecti-

on 8(d)1, 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

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 has subsequently recurred, increased, dimin-

ished[,] or ended.

On such review, compensation payments

may be re-established, increased, dimin-

ished[,] or ended." 820 ILCS 305/19(h) (West

2008).

As such, section 19(h) provides a period of time in which the

Commission may consider whether an injury has recurred, in-

creased, decreased, or ended. Behe v. Industrial Comm'n, 365

Ill. App. 3d 463, 466, 848 N.E.2d 611, 614 (2006). The 30-month

time period applies here because the 60-month time period applies

only to injuries that occurred on or after February 1, 2006. See

Pub. Act. 94-277, §95, eff. July 20, 2005 (2005 Ill. Legis. Serv.

1911, 1965 (West)). Therefore, in this case, defendant could

have petitioned the Commission, within 30 months of the wage-

differential award, and argued the injury diminished or ended.

See Cassens, 218 Ill. 2d at 528, 844 N.E.2d at 421 (noting that

the employer could have asked the Commission to reopen an in-

stallment award on the ground that the employee's disability

diminished or ended but had to do so within 30 months of the

issuance of the award).

While this outcome seems unfair, this court is bound by

the statute and Cassens to so rule and encourages the legislature

to revisit this situation. A totally and permanently disabled

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employee's benefits may be terminated upon the employer learning

the disability no longer exists, but a partially permanently

disabled employee's benefits pursuant to section 8(d)(1) (wage

differential) may not. See 820 ILCS 305/8(f) (West 2008) (pro-

viding that in cases of complete disability, if the employee

returns to work or is able to do so and earns as much as before

the accident or is able to do so, payments under the award shall

cease); Cassens, 218 Ill. 2d at 527, 529, 844 N.E.2d at 421

(finding "[s]ection 8(f) indicates that employers may cease

payments when a totally and permanently disabled employee returns

to the workforce, giving the employee authorization to petition

the Commission for review of the award" and construing the

statute as authorizing "ongoing review" by the Commission).

Concededly, just as the employer can only petition to terminate

benefits on a wage differential within 60 months (for injuries

occurring on or after February 1, 2006), an employee may not seek

an increase in his wage differential even if further disabled

after 60 months.

Defendant also argues on appeal that it should have

been allowed to amend its pleading. Nothing in the record

demonstrates defendant sought leave to amend or shows what that

amendment entailed. In any event, one of the factors considered

when determining whether to permit amendment to a pleading is

whether the amendment would cure the defect in the pleading. See

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Gurnitz v. Lasits-Rohline Service, Inc., 368 Ill. App. 3d 1129,

1132, 859 N.E.2d 1156, 1159 (2006). Here, defendant could not

cure the defect in the pleading because its counterclaim was not

a proper defense to the section 19(g) action, and, in any event,

the trial court was not the proper forum in which to raise its

claim that plaintiff's injury diminished or ended. See 820 ILCS

305/19(h) (West 2008) (providing the method and means for chal-

lenging an installment award under the Act before the Commis-

sion). Consequently, we affirm the circuit court's judgment.

B. Plaintiff Not Entitled to Costs and
Attorney Fees Incurred on Appeal

In his cross-appeal, plaintiff argues he is entitled to

costs and attorney fees incurred on appeal either under section

19(g) of the Act or pursuant to Supreme Court Rule 375, which

pertains to frivolous appeals.

Section 19(g) of the Act provides for an award of costs

and attorney fees in certain circumstances:

"In a case where the employer refuses to pay

compensation according to such final award or

such final decision upon which such judgment

is entered the court shall in entering judg-

ment thereon, tax as costs against him the

reasonable costs and attorney fees in the

arbitration proceedings and in the court

entering the judgment for the person in whose

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 favor the judgment is entered, which judgment

and costs taxed as therein provided shall,

until and unless set aside, have the same

effect as though duly entered in an action

duly tried and determined by the court, and

shall with like effect, be entered and dock-

eted." (Emphasis added.) 820 ILCS 305/19(g)

(West 2008).

In this case, the circuit court did, in conformance with section

19(g), award plaintiff his reasonable costs and attorney fees.

Plaintiff now seeks costs and attorney fees incurred on appeal.

Section 19(g) does not, however, specifically provide for payment

of attorney fees incurred on appeal.

In support of his argument that he is entitled to costs

and attorney fees incurred on appeal, plaintiff cites McAnally v.

Butzinger Builders, 263 Ill. App. 3d 504, 636 N.E.2d 19 (1994).

In McAnally, the trial court dismissed the plaintiff's section

19(g) petition. McAnally, 263 Ill. App. 3d at 506, 636 N.E.2d at

20. On appeal, the appellate court reversed and remanded,

directing the trial court to calculate the amount due and to

enter a judgment in favor of plaintiff. McAnally, 263 Ill. App.

3d at 509, 636 N.E.2d at 22. The appellate court also found

"plaintiff [was] entitled to costs and attorney fees for the

employer's refusal to pay, and the fee award shall include those

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incurred in prosecuting the appeal." McAnally, 263 Ill. App. 3d

at 509, 636 N.E.2d at 22. The court reasoned that although the

right to appeal is important, the injured worker also has the

right to be promptly compensated for the full amount of the final

award. McAnally, 263 Ill. App. 3d at 509, 636 N.E.2d at 22.

In contrast here, the circuit court granted plaintiff's

19(g) petition and awarded costs and attorney fees as provided by

section 19(g) of the Act. No remand is required here, as entry

of judgment has occurred. Nothing in the language of section

19(g) compels an award of attorney fees under these circum-

stances. Section 19(g) refers to an award of costs and attorney

fees incurred in the arbitration proceedings and in the court

entering judgment. Unlike the situation in McAnally, where the

circuit court was directed to enter judgment to include costs and

attorney fees incurred on appeal, no remand is required here. As

such, section 19(g) of the Act does not require this court to

award plaintiff his costs and attorney fees incurred on appeal,

and we decline to do so.

Plaintiff also seeks costs and attorney fees incurred

on appeal pursuant to Supreme Court Rule 375(b) (155 Ill. 2d R.

375(b)). Supreme Court Rule 375(b) calls for sanctions where an

appeal is not reasonably well grounded in law or fact and is made

in bad faith or to avoid paying an award. 155 Ill. 2d R. 375(b).

The imposition of sanctions under Rule 375(b) is within the

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appellate court's discretion. See Residential Carpentry, Inc. v.

Illinois Workers' Compensation Comm'n, 389 Ill. App. 3d 975, 976,

910 N.E.2d 109, 111 (2009). We find that although defendant's

argument on appeal was unpersuasive, the argument was not so

lacking in foundation and law and evidence as to merit sanctions.

Greene Welding & Hardware v. Illinois Workers' Compensation

Comm'n, 396 Ill. App. 3d 754, 759, 919 N.E.2d 1129, 1134 (2009).

Therefore, we deny plaintiff's request for costs and attorney

fees on appeal.

III. CONCLUSION

For the reasons stated, we affirm the circuit court's

judgment and deny plaintiff's request on cross-appeal for costs

and attorney fees.

Affirmed.

KNECHT and TURNER, JJ., concur.

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