Michelson v. Indus. Comm'n

• Citation: 375 Ill. 462,31 N.E.2d 940
• Decision Date: 14 February 1941
• Docket Number: No. 25865.,25865.
• Parties: MICHELSON v. INDUSTRIAL COMMISSION et al.
• Court: Supreme Court of Illinois

375 Ill. 462

31 N.E.2d 940

MICHELSON

v.INDUSTRIAL COMMISSION et al.

No. 25865.

Supreme Court of Illinois.

Feb. 14, 1941.

Error to Circuit Court, Cook County; Stanley H. Klarkowski, Judge.

Proceedings under the Workmen's Compensation Act by Mack Weinstein, employee, opposed by B. Michelson, employer. To review a judgment of Circuit Court affirming an order of the Industrial Commission which set aside, on ground of fraud, its former order approving a lump settlement, the employer brings error.

Reversed and remanded, with directions.Angerstein & Angerstein, of Chicago (Charles Wolff and Marion J. Hannigan, both of Chicago, of counsel), for plaintiff in error.

David F. Silverzweig, of Chicago, for defendant in error.

STONE, Justice.

This cause is here on petition for writ of error granted to review the judgment of the circuit court of Cook county affirming an order of the Industrial Commission which set aside, on the ground of fraud, its former order approving a lump sum settlement. Two questions are presented on the record: (1) Whether the commission had jurisdiction to set aside its order, and, (2) if it had such jurisdiction, whether its order so doing is sustained by the evidence.

The facts of the injury are not disputed, and are that on January 10, 1939, defendant in error, a salesman for plaintiff in error, on entering an elevator at his employer's place of business, was struck by a descending steel elevator gate, causing a scalp wound. He was taken to the office where a doctor was called who stitched up the wound. Later an X-ray picture was taken and the head wound was redressed. The next day he was taken to a hospital where he remained a few days, leaving the same at his own request and going back to work. At the suggestion of the manager of the plaintiff in error's store, defendant in error went to another doctor who directed him to go to a hospital. This he declined to do, though he later agreed to do so and went to the hospital and remained about ten days, when he asked to go back to work and was permitted to do so. After working about three hours he was taken ill and went back to the hospital and was there for another period of a week or ten days.

On February 9, following, plaintiff in error, through its insurance carrier, entered into a settlement agreement with defendant in error, by which the latter agreed to accept the sum of $200 in full settlement of all compensation demands and of his rights under the Workmen's Compensation act. On the same day he appeared before the members of the Industrial Commission with a representative of plaintiff in error and presented a petition that the sum of $200 agreed upon in the settlement be paid in lump sum to him. Hearing was had before one of the commissioners and the lump sum settlement was approved on the same day. On February 16, the formal order of approval was filed. On February 15, defendant in error filed with the commission a petition praying that the settlement agreement and approval be vacated and set aside on the ground of fraud. Hearing was had on the petition at different times thereafter, and on November 15, 1939, the commission entered the order complained of here, setting aside its previous order approving the lump sum settlement. Its order was affirmed by the circuit court.

Defendant in error here insists that the order vacating the lump sum settlement approval by the commission was not a final and appealable order and so not subject to review on certiorari or writ of error. He says also that plaintiff in error had waived questions of jurisdiction by failing to urge them below, and that the order of the commission is not contrary to the weight of the evidence.

Since the order setting aside the approval of the lump sum settlement disposed of the rights of the parties under it, that order was final, and defendant in error's first contention cannot be sustained. The next question presented is whether the Industrial Commission had power or jurisdiction to set aside its approval of the lump sum settlement. If such power exists it must be found in the Workmen's Compensation act. Its existence here is claimed by defendant in error on the ground of fraud in the procurement of its approval. Plaintiff in error argues that to hold that the commission has power to set aside its order because of fraud, is to open the door to overturning any of its decisions on that ground at any time, and that such power is not given by the act.

The Workmen's Compensation act, by section 19(h), provides that an agreement or award under the act may, at any time within eighteen months after its entry or approval by the commission, be reviewed on petition alleging that the disability of the employee has recurred, increased, diminished or ended. This section also provides: ‘Provided, further, that when compensation which is payable in accordance with an award or settlement contract approved by the industrial commission, is ordered paid in a lump sum by the commission, no review shall be had as in this paragraph mentioned.’ Ill.Rev.Stat.1939, chap. 48, par. 156. The clear intent of that section is that once a lump sum settlement is approved by the commission, it is not subject to review for recurrence, increase or for diminishing or ending of the disability. It is equally clear that the language quoted does not show legislative intent that jurisdiction, after the entry of such approval, should remain in the commission, and unless it is provided by other parts of the act, it does not exist.

Paragraph (f) of section 19 of the Workmen's Compensation act provides, in part, as follows: ‘The decision of the industrial commission acting within its powers, according to the provisions of paragraph (e) of this section shall, in the absence of fraud, be conclusive unless reviewed as in this paragraph hereinafter provided:’ Defendant in error contends that this language gave power and jurisdiction to the Industrial Commission to set aside its approval of the lump sum settlement in case of fraud, as claimed in this case. It is not claimed that the statute gives express authority to so act, or that jurisdiction is expressly conferred, but the argument is that jurisdiction is, by inference and implication, given to the commission to set aside its orders on the ground of fraud. Counsel say that while it may be conceded that...