Eschbaugh v. Industrial Comm'n , 286 Ill. App. 3d 963 ( 1996 )


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  •                              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       

    ___________________________________________________________________________