Hardin Sign Co. v. Industrial Com'n

• Decision Date: 15 April 1987
• Docket Number: No. 3-86-0373WC,3-86-0373WC
• Citation: 506 N.E.2d 1066,107 Ill.Dec. 175,154 Ill.App.3d 386
• Parties: , 107 Ill.Dec. 175 HARDIN SIGN COMPANY, Appellant, v. INDUSTRIAL COMMISSION, et al. (James T. Hughes, Appellee.)
• Court: United States Appellate Court of Illinois

Page 1066

506 N.E.2d 1066

154 Ill.App.3d 386, 107 Ill.Dec. 175

HARDIN SIGN COMPANY, Appellant, v. INDUSTRIAL COMMISSION, et al. (James T. Hughes, Appellee.)

No. 3-86-0373WC.

Appellate Court of Illinois,

Third District,

Industrial Commission Division.

April 15, 1987.

Robert H. Jennetten, Peoria, for Hardin Sign Co.

R. Wayne Harvey, Harvey & Stuckel, Chartered, Peoria, for James T. Hughes.

Justice KASSERMAN delivered the opinion of the court:

Claimant, James T. Hughes, filed an application for adjustment of claim under the Workmen's Compensation Act (Ill.Rev.Stat.1977, ch. 48, par. 138.1 et seq.) for an injury to his left arm which he alleges arose out of and in the course of his employment with Hardin Sign Company (Hardin). After a hearing before an arbitrator on December 11, 1978, claimant was awarded temporary total disability in the amount of $231.42 per week for 82 weeks (Ill.Rev.Stat.1979, ch. 48, par. 138.8(b)), reasonable and necessary medical expenses (Ill.Rev.Stat.1979, ch. 48, par. 138.8(a)), and $231.42 per week for 211 1/2 weeks for a 90% permanent disability of the left arm, payable in installments. (Ill.Rev.Stat.1979, ch. 48, par. 138.8(e).) On February 27, 1980, the Industrial Commission reduced the permanent disability award from 90% to 75% (i.e., $231.42 per week for 176 1/4 weeks, payable in installments) but otherwise affirmed the arbitrator's award. No judicial review of this original award was sought.

On August 5, 1980, claimant filed a petition for additional benefits pursuant to section 19(h). (Ill.Rev.Stat.1979, ch. 48, par. 138.19(h).) In a decision issued on May 24, 1982, the Industrial Commission awarded claimant an additional 9 6/7 weeks of temporary total disability benefits and additional reasonable and necessary medical expenses. Additional permanent partial disability compensation was denied. No judicial review of this award was sought.

On January 18, 1983, claimant filed a second petition for additional benefits pursuant to section 19(h). Although this filing date was more than 30 months after the Industrial Commission's original award on February 27, 1980, the Industrial Commission found the petition to have been timely filed in relation to the Industrial Commission's decision entered on claimant's first 19(h) petition on May 24, 1982. The Industrial Commission found, however, that claimant's second petition failed to establish any entitlement to additional compensation.

On November 30, 1984, the circuit court reviewed this decision and found it to be contrary to the manifest weight of the evidence. The circuit court ordered (1) that the Industrial Commission determine the amount of increase of disability the claimant had incurred since February 27, 1980, and (2) that the amount of the permanent disability award be increased accordingly. On remand, the Industrial Commission found claimant's permanent disability to have increased from 75% to 90%. After the circuit court confirmed this award, Hardin perfected the instant appeal to this court. On appeal Hardin urges that: (1) claimant's second section 19(h) petition was untimely, and (2) alternatively, the trial court erred in finding that the Industrial Commission's denial of increased benefits pursuant to such petition was contrary to the manifest weight of the evidence.

Section 19(h) provides in pertinent part:

"(h) 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 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 may be re-established, increased, diminished, or ended.

* * *

* * *

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." (Ill.Rev.Stat.1979, ch. 48, par. 138.19(h).)

Hardin contends that claimant's January 18, 1983, petition for review of the permanent disability award was not timely filed because the award of temporary total disability entered on the first 19(h) petition was not an "award" within the meaning of section 19(h). Hardin urges that as a consequence, the award was not subject to review under section 19(h). Moreover, Hardin asserts that the Industrial Commission's previous finding of no increased permanent disability should preclude the filing of a second section 19(h) petition. Claimant contends, and the Industrial Commission determined, that the award of additional temporary total disability and medical expenses sought by claimant and awarded by the Industrial Commission on May 24, 1982, was a new "award" and, thus, created a new date from which the 30-month limitation period provided in section 19(h) would begin to run. In answer to Hardin's assertion that claimant should be allowed to file only one section 19(h) petition, claimant contends that not allowing more than one 19(h) petition in a 30-month period would violate the equal protection clause.

The Workers' Compensation Act is a humane law of a remedial nature. (Kelsay v. Motorola, Inc. (1978), 74 Ill.2d 172, 181, 23 Ill.Dec. 559, 563, 384 N.E.2d 353, 357.) The underlying purpose of the Act is to provide financial protection for workers whose earning power is interrupted or terminated as a consequence of injuries arising out of and in the course of their employment. Board of Education of City of Chicago v. Industrial Com. (1972), 53 Ill.2d 167, 171, 290 N.E.2d 247, 249. Remedial legislation should be construed liberally to effectuate its purposes. (S.N. Nielson Co. v. Public Building Commission of Chicago (1980), 81 Ill.2d 290, 298, 43 Ill.Dec. 40, 44, 410 N.E.2d 40, 44.) Since section 19(h) seeks to redress changes in circumstances after the entry of a compensation award payable in installments, it is particularly remedial in nature and should be construed liberally so as to allow review of alleged changes in circumstances. In the first 19(h) petition claimant sought additional total temporary disability compensation as well as additional medical and incidental expenses because he was experiencing recurrent difficulty from his original injury. After a hearing, the Industrial Commission found a change in circumstances and increased the original award so as to include the additional benefits requested. In this regard, it is our conclusion that section 19(h) of the Act mandates that additional review of an award be encouraged so as to effectuate the purpose and spirit of the Act. Furthermore, such method of determination of a claimant's disability eliminates the most difficult problem of attempting to anticipate the progress of a claimant's disability and making a somewhat speculative award to him to cover anticipated increases or decreases in disability. We therefore conclude (1) that no party should be barred from filing more than one 19(h) petition during the appropriate time limitation, and (2) that the 30-month time limitation provided for in 19(h) should begin anew from the date of the Industrial Commission's decision on the first 19(h) petition. Consequently, claimant's second 19(h) petition was properly and timely filed.

The trial court determined that the Industrial Commission's decision to deny claimant additional permanent benefits for his original injury, entered on claimant's second section 19(h) petition, was contrary to the manifest weight of the evidence. We must now determine whether this finding was erroneous. The following evidence was adduced relative to this issue.

Medical Evidence Existing Prior to February 27, 1980

On December 6, 1976, claimant, a sheet metal worker, fell from a ladder while welding a steel stairway for Hardin. He sustained a comminuted fracture of the distal portion of the left radius and ulna involving the left wrist joint and an undisplaced fracture of the left carpal navicular bone. Dr. Albert J. Novotny, an orthopedic surgeon, treated these fractures with reduction and an external skeletal fixation device. After removal of this device, a cast was applied to claimant's left arm.

Post-operatively, claimant developed reflex sympathetic dystrophy (i.e., pain, coldness, possible decreased blood circulation) which resulted in marked swelling of the hand and stiffness of the fingers. An April 21, 1977, letter from Dr. Novotny stated that reflex sympathetic dystrophy "commonly leads to prolonged weakness, hypersensitivity, swelling and stiffness which is very slow to subside. In addition, it often leaves permanent loss of motion in the involved extremity." Although loss of range of motion in the shoulder and elbow was minimal, claimant complained of pain from his left shoulder down to his fingertips. Claimant stated that the pain was most noticeable when the weather was cold. He further stated that his left hand becomes purple in color and starts jumping and quivering when it gets cold.

After his final examination of claimant on August 30, 1978, Dr. Novotny informed Hardin's counsel of the following:

"Examination reveals 4 centimeters atrophy of the left arm and 2 centimeters atrophy of the left forearm as compared to the right. The patient is right handed. The left wrist is somewhat thickened as compared to the right. Range of motion in the shoulder and elbow are normal. Forearm...