Sunrise Assisted Living v. Banach , 2015 IL App (2d) 140037 ( 2015 )

Illinois Official Reports
Appellate Court
Sunrise Assisted Living v. Banach, 2015 IL App (2d) 140037Appellate Court SUNRISE ASSISTED LIVING, Plaintiff-Appellee, v. HEATHER
Caption BANACH, Defendant-Appellant (The Illinois Workers’
Compensation Commission, Defendant).
District & No. Second District
Docket No. 2-14-0037
Filed June 26, 2015
Decision Under Appeal from the Circuit Court of Lake County, No. 11-MR-1348; the
Review Hon. Jorge L. Ortiz, Judge, presiding.
Judgment Affirmed.
Counsel on Efi Poziopoulos James, of Baum, Ruffolo & Marzal, Ltd., of Chicago,
Appeal for appellant.
James P. Roach II, of Hennessy & Roach, P.C., of Chicago, for
appellee.
Panel JUSTICE BURKE delivered the judgment of the court, with opinion.
Justices Jorgensen and Hudson concurred in the judgment and
opinion.
OPINION
¶1 An arbitrator found defendant Heather Banach to be permanently partially disabled (PPD)
and temporarily totally disabled (TTD). The Illinois Workers’ Compensation Commission
(Commission) approved and adopted the arbitrator’s decision, and plaintiff, Sunrise Assisted
Living (Sunrise), paid installments according to the award. The circuit court and the appellate
court affirmed the Commission’s decision.
¶2 During appellate review, Banach petitioned to increase the arbitration award under sections
19(h) and 8(a) of the Illinois Workers’ Compensation Act (Act) (820 ILCS 305/19(h), 8(a)
(West 2012)), claiming that her condition had worsened. Thereafter, Banach filed in the circuit
court an application for judgment pursuant to section 19(g) of the Act (820 ILCS 305/19(g)
(West 2012)), arguing that she is entitled to interest under section 2-1303 of the Code of Civil
Procedure (Code) (735 ILCS 5/2-1303 (West 2012)). The circuit court denied the application,
ruling that section 2-1303 of the Code does not apply, because Sunrise satisfied the arbitration
award by tendering all ordered payments, including interest under section 19(n) of the Act (820
ILCS 305/19(n) (West 2012)), before Banach applied for judgment under section 19(g).
¶3 On appeal, Banach argues that she is entitled to interest under section 2-1303 of the Code.
Sunrise responds that the trial court did not have jurisdiction to consider Banach’s section
19(g) application, and that this court lacks jurisdiction to review the denial, because her
petition to increase the arbitration award under sections 19(h) and 8(a) was pending when the
application was filed. Sunrise alternatively argues that Banach is not entitled to interest under
section 2-1303 of the Code because (1) the Commission’s award, by itself, is not a judgment,
and (2) Sunrise timely paid the amounts due under the arbitration award, including interest
under section 19(n) of the Act. We hold that the trial court had jurisdiction to consider the
section 19(g) application, this court has jurisdiction to review the denial, and the trial court did
not err in denying Banach interest under section 2-1303.
¶4 I. BACKGROUND
¶5 Banach filed a workers’ compensation claim against Sunrise, seeking benefits pursuant to
the Act, for a work-related injury that occurred on March 6, 2007. On June 17, 2010, the
arbitrator entered a decision finding that Banach’s injury arose out of and in the course of her
employment and that her current condition was causally related to the accident. The arbitrator
ordered Sunrise to pay Banach (1) TTD benefits in the amount of $250 per week for 107 5/7
weeks; (2) PPD benefits in the amount of $225 per week for 225 weeks, because the injury
caused the PPD to her person as a whole to the extent of 45% thereof; (3) $322,922 for her
medical expenses; and (4) $1,520 in interest under section 19(n) of the Act.
¶6 On July 5, 2011, the Commission affirmed and adopted the arbitrator’s decision, and the
trial court confirmed the Commission’s decision on March 15, 2012. Sunrise timely appealed
on April 11, 2012, and the appellate court affirmed the trial court’s order on February 5, 2013.
Sunrise Assisted Living v. Illinois Workers’ Compensation Comm’n, 2013 IL App (2d)
120424WC-U. On March 7, 2013, before the appellate court issued its mandate, Sunrise
tendered three payments: $310,695 for medical expenses (after applying a $12,227 credit),
$63,630 in TTD and PPD benefits (after applying a $13,924 credit), and $1,520 in interest
under section 19(n) of the Act.
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¶7 On October 29, 2012, while the appeal was pending, Banach filed a petition to modify the
arbitration award under sections 19(h) and 8(a) of the Act. Section 19(h) allows, where there is
a material change in the employee’s disability, either the employee or the employer to petition
the Commission to review an installment award within a limited period of time. Cassens
Transport Co. v. Illinois Industrial Comm’n, 218 Ill. 2d 519, 527 (2006). Similarly, section
8(a) provides for review if additional medical expenses are incurred after the award.
¶8 On April 1, 2013, while her petition for modification under sections 19(h) and 8(a) was
pending before the Commission, Banach filed an application in the trial court for a judgment
on the original award, pursuant to section 19(g) of the Act. Generally, section 19(g) provides
that, “when no proceedings for review are pending,” either party may present a copy of the
award to the appropriate circuit court, “whereupon the court shall enter a judgment in
accordance therewith.” 820 ILCS 305/19(g) (West 2012). Banach contended that section
2-1303 of the Code entitled her to an additional $56,395, representing 9% interest from July 5,
2011, the date of the Commission’s decision, to March 7, 2013, the date on which Sunrise
tendered its first payment.
¶9 On April 12, 2013, Sunrise moved to dismiss the application for judgment, arguing that the
trial court lacked jurisdiction under section 19(g), because Banach’s petition for modification
was pending before the Commission. Sunrise further argued that Banach was not entitled to
interest under section 2-1303 of the Code from the date of the award, because (1) the award,
itself, is not a judgment for which interest would be owed under the Code and (2) Sunrise paid
all the interest due under section 19(n) of the Act.
¶ 10 On December 11, 2013, the trial court denied Banach’s section 19(g) application,
concluding that, “since the full tender of the [Commission’s] award and proper section 19(n)
interest was tendered by [Sunrise] before Banach filed any type of petition under section 19(g)
of the Act, the Commission’s award was never reduced to a judgment under section 19(g) of
the Act. Therefore, section 2-1303 interest at 9% was never applicable to the [Commission’s]
decision.” Banach filed a timely notice of appeal from the order.
¶ 11 II. ANALYSIS
¶ 12 On appeal, Banach argues that she is entitled to interest under section 2-1303 of the Code.
Sunrise responds that the trial court did not have jurisdiction to consider Banach’s section
19(g) application, and this court lacks jurisdiction to review the denial, because her petition to
increase the arbitration award under sections 19(h) and 8(a) was pending when the application
was filed. Sunrise also renews its argument that Banach is not entitled to interest under section
2-1303 of the Code, because (1) the Commission’s award, by itself, is not a judgment, and (2)
Sunrise timely paid the amounts due under the arbitration award, including interest under
section 19(n) of the Act.
¶ 13 A. Jurisdiction
¶ 14 Sunrise contends that the trial court lacked subject matter jurisdiction to consider Banach’s
application for a judgment under section 19(g) of the Act, because her petition to modify the
award under sections 19(h) and 8(a) was pending.1 Resolving the jurisdictional issue requires
1
Sunrise has moved to dismiss the appeal on the ground that we lack jurisdiction because the trial
court lacked jurisdiction, and we have taken the motion with the case.
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the interpretation of the statutes. The primary objective of statutory interpretation is to give
effect to the intent of the legislature, and the most reliable indicator of legislative intent is the
language of the statute given its plain, ordinary, and popularly understood meaning. Gardner v.
Mullins, 234 Ill. 2d 503, 511 (2009). The statute “ ‘should be read as a whole with all relevant
parts considered.’ ” Gardner, 234 Ill. 2d at 511 (quoting Kraft, Inc. v. Edgar, 138 Ill. 2d 178,
189 (1990)). If the statutory language is clear, a reviewing court need not resort to extrinsic
aids of construction, such as legislative history. Northern Kane Educational Corp. v.
Cambridge Lakes Education Ass’n, 394 Ill. App. 3d 755, 758 (2009). In such a situation, a
court may not depart from the plain language of the statute and read into it exceptions,
limitations, or conditions that are inconsistent with the express legislative intent. Landheer v.
Landheer, 383 Ill. App. 3d 317, 321 (2008). Nonetheless, when reviewing a statute, we also
consider the subject it addresses and the legislature’s apparent objective in enacting it, while
presuming that the legislature did not intend to create absurd, inconvenient, or unjust results.
Fisher v. Waldrop, 221 Ill. 2d 102, 112 (2006). The construction of a statute presents a
question of law, which we review de novo. Wade v. City of North Chicago Police Pension
Board, 226 Ill. 2d 485, 510-11 (2007).
¶ 15 Section 19(g) confers authority upon a circuit court to render a judgment in accordance
with an award or other decision of the Commission when a certified copy thereof is presented
to the court. Section 19(g) provides in relevant part as follows:
“Except in the case of a claim against the State of Illinois, either party may present a
certified copy of the award of the Arbitrator, 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.”
(Emphasis added.) 820 ILCS 305/19(g) (West 2012).
¶ 16 Sunrise concludes that the proceedings on the section 19(h) petition qualify as
“proceedings for review” that would bar an application for judgment under section 19(g),
because section 19(h) repeatedly uses the term “review.” Section 19(h) prescribes a procedure
for modifying compensation paid in installments and provides in relevant part 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
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.
However, as to accidents occurring subsequent to July 1, 1955, which are covered
by any agreement or award under this Act providing 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 Section 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 has subsequently recurred,
increased, diminished or ended.
On such review, compensation payments may be re-established, increased,
diminished or ended. The Commission shall give 15 days’ notice to the parties of the
hearing for review. Any employee, upon any petition for such review being filed by the
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employer, shall be entitled to one day’s notice for each 100 miles necessary to be
traveled by him in attending the hearing of the Commission upon the petition, and 3
days in addition thereto. ***
When compensation which is payable in accordance with an award or settlement
contract approved by the Commission, is ordered paid in a lump sum by the
Commission, no review shall be had as in this paragraph mentioned.” (Emphases
added.) 820 ILCS 305/19(h) (West 2012).
¶ 17 Sunrise’s position carries obvious superficial appeal in that section 19(g) authorizes an
application for judgment only “when no proceedings for review are pending” and that section
19(h) repeatedly refers to its proceedings as a “review” of the award. However, Sunrise takes
the term “review” out of the broader context of the contrasting purposes of sections 19(g) and
19(h). Read in that context, the statutory language compels us to conclude that proceedings
initiated under section 19(h) are not “proceedings for review” that would bar an application for
judgment under section 19(g).
¶ 18 When “the disability of the employee has subsequently recurred, increased, diminished or
ended,” section 19(h) prescribes a procedure by which either the employee or the employer
may petition the Commission to modify an award to be paid in installments. 820 ILCS
305/19(h) (West 2012). Accordingly, section 19(h) authorizes the Commission to reestablish,
increase, diminish, or end future installments; but when compensation is ordered by the
Commission to be paid in a lump sum, section 19(h) does not authorize modification. Thus,
section 19(h) does not authorize review of lump-sum payments or installments that have
already accrued. An order entered by the Commission under section 19(h) is one for future
modification based on a material change in the employee’s disability, rather than a review of
the original finding of disability.
¶ 19 Harmoniously interpreted, sections 19(g) and 19(h) provide that the trial court may not
enter judgment on the original award while the Commission is reviewing whether that award is
proper, but judgment on the original award may be entered when the Commission is deciding
under section 19(h) whether a material change in circumstances warrants a prospective
modification.
¶ 20 A literal interpretation of sections 19(g) and 19(h) would lead to inconvenient results that
run contrary to the remedial purpose of the Act. To hold that section 19(h) proceedings for
prospective modification qualify as “proceedings for review” that preclude a judgment under
section 19(g) would deny a claimant the benefits upon which he depends while a collateral
matter remains pending. Under Sunrise’s interpretation of the Act, an employer could block
the claimant’s application for judgment under section 19(g) by initiating section 19(h)
proceedings to modify future installments. Although there are no allegations of such
gamesmanship in this case, the legislature certainly did not intend proceedings to modify
future benefits to thwart a claimant’s attempt to enforce the award of accrued benefits. We hold
that section 19(h) proceedings are not “proceedings for review” under section 19(g), to
effectuate the Act’s policy and prevent litigants from causing needless delay in section 19(g)
proceedings.
¶ 21 Our conclusion is supported by Ahlers v. Sears, Roebuck Co., 73 Ill. 2d 259, 262 (1978),
where the employer agreed to make monthly payments of $725 for nursing services for the
disabled employee, who could not care for herself. The parties agreed that the payments would
be discontinued if the nursing care were no longer needed or different nursing care were
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required. After honoring its obligation for three years, the employer petitioned the
Commission to reopen the case on the ground that, because nursing services were no longer
being provided, the payment obligation had ended. The employer unilaterally terminated
payments, but the Commission denied the petition to reopen the case and the employer did not
seek review. Ahlers, 73 Ill. 2d at 262-63.
¶ 22 More than a year after the employer stopped making payments, the employee filed an
application for judgment under section 19(g) for the unpaid amounts that had accrued since
that time. Ahlers, 73 Ill. 2d at 263. The trial court entered two judgments for the arrearages, the
employer appealed, and, while the appeal was pending, the employer again petitioned the
Commission to reopen the case. Ahlers, 73 Ill. 2d at 263. The appellate court affirmed the
judgments for the arrearages, and two days later the Commission reduced the employer’s
future payment obligation. Ahlers, 73 Ill. 2d at 264.
¶ 23 On appeal to the supreme court, the employer argued, inter alia, that the trial court could
not enter the judgments for the arrearages, because proceedings for review were pending
before the Commission. The supreme court disagreed, holding that the record revealed that no
proceedings regarding nursing care were pending in the Commission when the judgments were
entered. Ahlers, 73 Ill. 2d at 266-67. First, although a petition filed by the employee might have
been pending before the Commission when the trial court entered the judgments, matters
unrelated to nursing care were at issue in that petition. Second, although the employer placed
the issue of nursing care before the Commission by petitioning to decrease the payments, that
petition was filed after the judgments had been entered and were on review in the appellate
court. In short, no proceedings involving the issue of nursing care were pending when the trial
court entered the judgments, and the supreme court rejected the employer’s argument,
accordingly. Ahlers, 73 Ill. 2d at 267.
¶ 24 The Ahlers court held that the section 19(g) application for judgment on the nursing-care
arrearages was not barred by the pending proceedings, because the latter did not involve
nursing care. In this case, the section 19(g) application relates to the award of medical
expenses, TTD benefits, and PPD benefits. The record before us does not indicate on what
grounds Banach was petitioning for an increase in benefits; however, the prospective nature of
section 19(h) shows that the petition must have addressed future installments, not the lump
sum or installments that already had accrued. Thus, one could argue that the subject matter of
the section 19(h) petition (i.e., increasing future installments) was different from the subject
matter of the section 19(g) application (i.e., the lump sum and accrued installments).
¶ 25 Regardless, Ahlers stands at least for the proposition that not all proceedings for review bar
a section 19(g) application. In this case and in Ahlers, a petition filed by the employee was
pending before the Commission when the employee applied for the judgment. Consistent with
Ahlers, we agree with the trial court that Banach’s section 19(g) application could be heard,
despite the pending section 19(h) proceedings. We conclude that the trial court had subject
matter jurisdiction to consider the application, and we deny Sunrise’s motion to dismiss this
appeal.
¶ 26 B. Postaward Interest
¶ 27 Banach argues that she is entitled to a judgment under section 19(g) and interest under
section 2-1303 of the Code. Section 2-1303 governs prejudgment and postjudgment interest
and provides in relevant part as follows:
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“Judgments recovered in any court shall draw interest at a rate of 9% per annum from
the date of the judgment until satisfied ***. When judgment is entered upon any award,
report or verdict, interest shall be computed at the above rate, from the time when made
or rendered to the time of entering judgment upon the same, and included in the
judgment. Interest shall be computed and charged only on the unsatisfied portion of the
judgment as it exists from time to time. The judgment debtor may by tender of payment
of judgment, costs and interest accrued to the date of tender, stop the further accrual of
interest on such judgment notwithstanding the prosecution of an appeal, or other steps
to reverse, vacate or modify the judgment.” 735 ILCS 5/2-1303 (West 2012).
¶ 28 As discussed, section 19(g) provides that “either party may present *** a certified copy of
the decision of the Commission when the same has become final, *** whereupon the court
shall enter a judgment in accordance therewith.” 820 ILCS 305/19(g) (West 2012). The court
must enter judgment on the award without questioning the Commission’s decision, even if the
court disagrees with the Commission’s construction of the law. Ahlers, 73 Ill. 2d at 268. In this
appeal, Sunrise does not challenge the validity of the award approved by the Commission, but
rather contends that no judgment is warranted because it made full payment immediately
following the previous appeal. Tender of full payment of the final award is a defense to a
section 19(g) petition. Voorhees v. Industrial Comm’n, 31 Ill. 2d 330, 332 (1964) (a tender of
less than the full amount due the employee under the Commission’s final award did not
constitute a tender, and the trial court properly entered judgment on the full award under
section 19(g)).
¶ 29 We find guidance in Radosevich v. Industrial Comm’n, 367 Ill. App. 3d 769 (2006), where
the claimant argued that the trial court failed to award proper interest on the workers’
compensation award. Neither party sought review of the award, but the claimant applied for a
section 19(g) judgment and argued that interest under section 2-1303 of the Code should be
awarded from the date of the arbitrator’s award through the date the employer paid the award
in full. Radosevich, 367 Ill. App. 3d at 777.
¶ 30 In Radosevich, the arbitrator’s award set section 19(n) interest at the rate of 1.64% from the
date of the award through the day prior to the date of payment. Radosevich, 367 Ill. App. 3d at
777. In this case, the arbitrator’s award set section 19(n) interest at the rate of 0.15% from the
date of the award through the day prior to the date of payment. Banach does not contend that
Sunrise failed to make the payments according to the award or that the calculation of the
section 19(n) interest was incorrect; she asserts only that section 2-1303 of the Code entitles
her to additional interest from the date of the award until Sunrise tendered payment.
¶ 31 The Radosevich court observed that a claimant is entitled to section 19(n) interest on all
awards of arbitrators and decisions of the Commission. Radosevich, 367 Ill. App. 3d at 777
(citing 820 ILCS 305/19(n) (West 2004)). Interest pursuant to section 19(n) is “ ‘drawn from
the date of the arbitrator’s award on all accrued compensation due the employee through the
day prior to the date of payments.’ ” Radosevich, 367 Ill. App. 3d at 777 (quoting 820 ILCS
305/19(n) (West 2004)).
¶ 32 In contrast, a claimant is entitled to section 2-1303 interest if and when the arbitrator’s
award or the Commission’s decision becomes an enforceable judgment. Radosevich, 367 Ill.
App. 3d at 778. When an employer fails or refuses to pay an arbitrator’s award that becomes
the Commission’s decision, and no further appeal is taken, a claimant may file a petition
pursuant to section 19(g) of the Act to reduce the award to an enforceable judgment in the
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circuit court. Radosevich, 367 Ill. App. 3d at 778 (citing 820 ILCS 305/19(g) (West 2004)).
“Section 2-1303 provides that judgments shall draw interest at the rate of 9% per annum from
the date of judgment, and ‘[w]hen judgment is entered upon any award, report or verdict,
interest shall be computed at the above rate, from the time when made or rendered to the time
of entering judgment upon the same, and included in the judgment.’ ” Radosevich, 367 Ill.
App. 3d at 778 (quoting 735 ILCS 5/2-1303 (West 2004)).
¶ 33 Once a claimant implements section 19(g) of the Act because the employer has failed to
pay, a resulting order of the circuit court is an enforceable judgment, and section 2-1303
interest is properly awarded from the date of the arbitrator’s award through the date that
judgment was entered on that award. In addition, any prospective payments due pursuant to the
section 19(g) judgment that are untimely shall also be subject to section 2-1303 interest.
Radosevich, 367 Ill. App. 3d at 778.
¶ 34 In Radosevich, the claimant was entitled to section 19(n) interest on the arbitrator’s award,
which became the Commission’s decision, through the day prior to the date of payment and as
to all amounts not included in the section 19(g) judgment. Radosevich, 367 Ill. App. 3d at 778.
When the claimant initiated the section 19(g) proceedings and the trial court entered judgment,
the award became an enforceable judgment. Section 2-1303 interest should have been awarded
on all unpaid amounts from the date of the arbitrator’s award through the date the trial court
entered judgment on the award. Radosevich, 367 Ill. App. 3d at 778. Because there was no
intervening appeal of the award, section 19(n) interest was not also awarded to the claimant as
to amounts found due in the section 19(g) judgment. Radosevich, 367 Ill. App. 3d at 778.
¶ 35 In this case, Sunrise appealed the Commission’s decision, and section 19(n) interest
accrued while that appeal was pending. When the appellate court rendered its decision, Sunrise
promptly paid the lump sum, accrued installments, and section 19(n) interest, before Banach
filed her section 19(g) application. Sunrise did not refuse to pay before Banach implemented
section 19(g). When Sunrise tendered full payment of what was owed, Banach was no longer
entitled to a judgment under section 19(g). Without a judgment, Banach was not entitled to
additional interest under section 2-1303 of the Code. Therefore, we conclude that the trial court
did not err in denying Banach a judgment under section 19(g) and interest under section 2-1303
of the Code.
¶ 36 III. CONCLUSION
¶ 37 For the reasons stated, we affirm the denial of Banach’s application for a judgment and
additional interest under section 2-1303 of the Code.
¶ 38 Affirmed.
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