dissenting:
I would find that the trial court lacked jurisdiction to consider whether Walenga elected to withdraw himself from coverage under the Workers’ Compensation Act (the Act) (820 ILCS 305/1 et seq. (West 2006)). I would further find that, under section 18 of the Act, the Workers’ Compensation Commission (the Commission) should have exclusive jurisdiction over this question. 820 ILCS 305/18 (West 2006). I therefore respectfully dissent.
At issue in the instant matter is whether Walenga was a bona fide officer who voluntarily elected to withdraw from coverage under the Act pursuant to section 3(17)(b). 820 ILCS 305/3(17)(b) (West 2006). Under section 3(17)(b), corporate officers of any corporation may elect to withdraw themselves as individuals from the operation of the Act. 820 ILCS 305/3(17)(b) (West 2006). “[A] ‘corporate officer’ is defined as a bona fide President, Vice President, Secretary or Treasurer of a corporation who voluntarily elects to withdraw.” 820 ILCS 305/3(17)(b) (West 2006). The Act does not define “bona fide” or “voluntarily,” nor is there any case law interpreting this section of the Act.
Section 18 of the Act states, “All questions arising under this Act, if not settled by agreement of the parties interested therein, shall, except as otherwise provided, be determined by the Commission.” 820 ILCS 305/18 (West 2006). Here, the issue is whether Walenga is in compliance with section 3(17) (b) of the Act. Compliance with section 3(17) (b) of the Act is a question which, under the Act, should be determined by the Commission. I would hold that interpretation of section 3(17)(b) of the Act should be within the exclusive jurisdiction of the Commission.
As with the majority, I would begin with Employers Mutual Cos. v. Skilling, 163 Ill. 2d 284 (1994). In that case, George Skilling filed two workers’ compensation claims against his employer, Kirkpatrick Trucking Company, for two accidents that occurred in Illinois. The employer’s workers’ compensation carrier, Employers Mutual, filed a declaratory judgment action in the circuit court maintaining that since its policy provided coverage only for injuries occurring in Wisconsin, it had no obligation to defend or indemnify Kirkpatrick or to pay workers’ compensation benefits to Skilling for injuries occurring in Illinois. Employers Mutual Cos., 163 Ill. 2d at 285-86. Skilling moved for dismissal of the insurance carrier’s declaratory action, maintaining that section 18 of the Act bestowed exclusive jurisdiction upon the Commission. Our supreme court rejected the argument that the Commission had exclusive jurisdiction. However, it found that the circuit court and the Commission had “concurrent” jurisdiction. Employers Mutual Cos., 163 Ill. 2d at 288. The court then proceeded to determine which tribunal had “primary” jurisdiction, which the court noted was “ ‘ “concerned with promoting proper relationships between the courts and the administrative agencies charged with particular regulatory duties.” ’ ” Employers Mutual Cos., 163 Ill. 2d at 288, quoting Kellerman v. MCI Telecommunications, 112 Ill. 2d 428, 444 (1986), quoting United States v. Western Pacific R.R. Co., 352 U.S. 59, 63, 1 L. Ed. 2d 126, 132, 77 S. Ct. 161, 165 (1956). The court further noted that, “[ujnder this doctrine, a matter should be referred to an administrative agency when it has specialized or technical expertise that would help resolve the controversy, or when there is a need for uniform administrative standards.” Employers Mutual Cos., 163 Ill. 2d at 288-89, citing Kellerman, 112 Ill. 2d at 445. The supreme court then held that the circuit court was in a better position than the Commission to address whether the scope of coverage afforded by specific provisions of the insurance contract between Kilpatrick and its insurance company included defending and paying claims for alleged injuries occurring within Illinois. Employers Mutual Cos., 163 Ill. 2d at 289.
The contrast between the interpretation of provisions of the insurance contract in Employers Mutual Cos. and the question of whether Dan Walenga is barred by section 3(17)(b) of the Act from filing a claim for workers’ compensation benefits is crucial. In Employers Mutual Cos., the issue was whether the contract between the employer and its insurance carrier excluded certain claims from coverage. The resolution of that question involved only the insurance contract and did not arise under the Act. Simply put, the question in the instant matter arises under the Act; the question in Employers Mutual Cos. arose under the terms of an insurance contract. Thus, under the analytical scheme articulated by our supreme court in Employers Mutual Cos., the Commission would have primary jurisdiction if either the Commission has “specialized or technical expertise that would help resolve the controversy” or “there is a need for uniform administrative standards.” Employers Mutual Cos., 163 Ill. 2d at 288-89. I would find that the instant matter, whether section 3(17)(b) of the Act applies to Dan Walenga’s claim for benefits under the Act, is one where there is a clear need for uniform administrative standards.
Unlike Employers Mutual Cos., where the issue involved only the interpretation of an insurance contract, at issue here is whether section 3(17)(b) of the Act precludes the plaintiff from filing a claim under the Act. See General Casualty Co. of Illinois v. Carroll Tiling Service, Inc., 342 Ill. App. 3d 883, 892-93 (2003) (a corporate officer who withdraws from the protection of the Act cannot file a claim for workers’ compensation benefits). Whether a claimant can file a claim under the Act is, I would hold, the quintessential issue in need of uniform standards. We need look no further than the conflict between the inconsistent holdings in D. Mayer Landscaping, Inc. v. Industrial Comm’n, 328 Ill. App. 3d 853, 858-59 (2002) (statutory exclusion controls the nature of the exclusion under the insurance policy), and Virginia Surety Co. v. Bill’s Builders, Inc., 372 Ill. App. 3d 595 (2007) (no statutory exclusions over the insurance policy).
I would also note that the need for uniformity of decision involving the Act is made paramount by the fact that all appeals from the decisions of the Commission are filed with a five-judge panel of the appellate court under Supreme Court Rule 22(g). 210 Ill. 2d R. 22(g).
Because I would find that the Commission has exclusive jurisdiction to resolve a question arising under section 3(17(b) of the Act (820 ILCS 305/3(17)(b) (West 2006)), I would reverse the decision of the circuit court of Will County and would remand the matter for further proceedings consistent therewith.