University of Illinois v. Industrial Com'n

• Decision Date: 10 July 1992
• Docket Number: No. 1-91-1567WC,1-91-1567WC
• Citation: University of Illinois v. Industrial Com'n, 596 N.E.2d 823, 232 Ill.App.3d 154, 173 Ill.Dec. 199 (Ill. App. 1992)
• Parties: , 173 Ill.Dec. 199, 76 Ed. Law Rep. 176 UNIVERSITY OF ILLINOIS, Appellee, v. The INDUSTRIAL COMMISSION et al. (Robert Powers, Appellant).
• Court: Appellate Court of Illinois

Page 823

596 N.E.2d 823

232 Ill.App.3d 154, 173 Ill.Dec. 199,

76 Ed. Law Rep. 176

UNIVERSITY OF ILLINOIS, Appellee, v. The INDUSTRIAL COMMISSION et al. (Robert Powers, Appellant).

No. 1-91-1567WC.

Appellate Court of Illinois,

First District,

Industrial Commission Division.

July 10, 1992.

Thomas G. King, Chicago, for petitioner-appellant.

Robert E. Maciorowski, Julie A. Garrison, Seyfarth, Shaw, Fairweather & Geraldson, Chicago, for respondent-appellant.

Presiding Justice McCULLOUGH delivered the opinion of the court:

This is an appeal by the claimant, Robert W. Powers, from the judgment of the circuit court of Cook County confirming on judicial review the decision of the Industrial Commission of Illinois (Commission) with regard to claims for temporary total disability benefits (TTD) pursuant to sections 19(b-1) and 8(b) of the Workers' Compensation Act (Act) (Ill.Rev.Stat.1985, ch. 48, pars. 138.19(b-1), 138.8(b)) and reimbursement of necessary and reasonable medical bills pursuant to section 8(a) of the Act (Ill.Rev.Stat.1985, ch. 48, par. 138.8(a)). The respondent employer in this case is the University of Illinois. The issues presented for review are as follows: (1) whether the Commission's determination that the report of Drs. Herbert White and Stephan Hessl was inadmissible was an abuse of discretion; (2) whether the finding of the Commission, affirming the arbitrator's finding that claimant was not temporarily and totally disabled subsequent to February 12, 1986, is against the manifest weight of the evidence; (3) whether the finding of the Commission, affirming the arbitrator's finding that medical expenses in the amount of $2,861 were not reasonable and necessary was against the manifest weight of the evidence; (4) whether the Commission erred in refusing to allow oral argument after the second remand by the circuit court; and (5) whether the circuit court erred in remanding the cause to the arbitrator for the limited purpose of introducing additional evidence.

On March 11, 1986, claimant filed an application for adjudication of claim alleging accidental injuries arising out of and in the course of his employment on February 3, 1986. On October 3, 1986, he filed the section 19(b-1) petition. Following a hearing conducted on November 3 and 10, 1986, the arbitrator found the claimant was entitled to receive from respondent $494.67 per week for 36 and 6/7 weeks for TTD and the claimant was entitled to receive from respondent $2,861 for necessary first aid, medical, surgical, and hospital services. The decision was affirmed by the Commission on March 25, 1987.

On judicial review taken by respondent (Cook County case No. 87-L-50412), the circuit court remanded the cause to the Commission for the limited purpose of allowing respondent the opportunity to present rebuttal evidence with regard to claimant's work duties. On October 27, 1987, the arbitrator conducted an additional hearing. At that hearing, the arbitrator heard only the testimony of Frank W. Krejnik, the general foreman. Krejnik testified concerning the work claimant was performing at the time he attempted to return to work in May 1986. On October 29, 1987, the arbitrator issued a memorandum of decision modifying the earlier decision and finding claimant was temporarily totally disabled for 5/7 weeks.

On November 25, 1987, claimant filed a petition for review of the arbitrator's decision with the Commission. On May 10, 1988, the cause was submitted on the record and proofs were closed. On June 7, 1988, claimant filed a request that the Commission reopen proofs to allow for the consideration of the February 13, 1987, medical report of White and Hessl. On November 28, 1988, the Commission denied the request to reopen proofs. On March 28, 1989, the Commission vacated the October 29, 1987, decision of the arbitrator because the arbitrator acted without the authority of the Commission or the circuit court to readjudicate the matter. Claimant's petition for review was dismissed and the complete record was certified to the circuit court.

On May 19, 1989, the circuit court set aside the Commission's March 28, 1989, decision and remanded the cause for consideration of Krejnik's testimony. On remand, the Commission's decision of February 9, 1990, affirmed the October 29, 1987, decision of the arbitrator. The opinion of the Commission also noted that claimant filed a motion to reconsider the denial of reopening proofs on July 7, 1989, which motion was denied on July 11, 1989, following a hearing. Claimant's petition for judicial review by the circuit court was docketed as Cook County case No. 90-L-50265. On August 9, 1990, case No. 90-L-50265 was consolidated with case No. 87-L-50412.

For purposes of our decision, the first issue is whether the circuit court was correct in its first remand order, in allowing respondent to present rebuttal evidence with regard to claimant's work duties. If there was no error at the first arbitration hearing, the next issue is whether the first decision of the Commission, that of March 25, 1987, is against the manifest weight of the evidence. If not, it must be confirmed.

Section 19(f)(2) of the Act provided in part:

"The court may confirm or set aside the decision of the Commission. If the decision is set aside and the facts found in the proceedings before the Commission are sufficient, the court may enter such decision as is justified by law, or may remand the cause to the Commission for further proceedings and may state the questions requiring further hearing, and give such other instructions as may be proper." (Ill.Rev.Stat.1985, ch. 48, par. 138.19(f)(2).)

Pursuant to section 19(f)(2), the trial court did have the authority to remand for "questions requiring further hearing." Here, in remanding, it was necessary to find the arbitrator abused his discretion in denying the respondent a continuance.

The arbitrator may grant a continuance under section 19(b-1) if material is discovered at the hearing which has not been previously disclosed. Implicit in the circuit court remand for additional evidence is the finding that the arbitrator erred by failing to grant the continuance. We hold the remand by the circuit court to allow the respondent to place the testimony of Krejnik into evidence before the arbitrator was improper.

Claimant testified on direct examination before the arbitrator on November 3, 1986. The cause was continued to November 10, 1986, at which hearing claimant's testimony continued, including cross-examination. Section 19(b-1) of the Act requires the respondent to file a written response to include "the name and address of each witness on whom the [respondent] will rely to support his response." (Ill.Rev.Stat.1985, ch. 48, par. 138.19(b-1).) Respondent failed to designate any witnesses in its response to claimant's section 19(b-1) petition.

The respondent should also have been aware that the evidence could not be presented before the Commission on review. (See 50 Ill.Adm.Code § 7020.80(b)(4)(C) (Supp.1986) (as amended Oct. 15, 1985).) Indeed, the respondent, in its statement of exception/addition to the Commission, recognized that the Commission does not generally consider such evidence. Respondent now argues that the evidence was necessitated by the disclaiming of time records by claimant on cross-examination. According to respondent, this was a surprise. However, the request for continuance made to the arbitrator was as follows:

"[Respondent's Attorney]: Your Honor, Respondent would also either like a continuance to present testimony as to what the petitioner's job duties were at the University of Illinois or because of the nature and the fact that this is a 19(b-1), we would ask for leave from the Industrial Commission to present that evidence on review should it be necessary.

THE ARBITRATOR: It may be presented on review; but as far as this case is concerned, it's closed. Your proposed findings are due one week from today."

The request does not disclose any surprise on the part of respondent and in any event, the failure to anticipate the testimony and witnesses necessary to present one's case is not the same type of "surprise" as being confronted with newly discovered evidence. The respondent had one week between arbitration hearings to prepare a response to a claimant who had been testifying contrary to what respondent understood the facts to be. Nothing was done.

In its statement of exceptions to the Commission, respondent makes the conclusion that in other areas claimant has "shown a propensity for testifying contrary to what the actual records show." This is the sole reason put forth by the respondent to present additional evidence. Respondent does not assert the arbitrator erred in his ruling, nor does the record reveal what the new evidence would show. This is not a showing of "good cause" as set forth in section 7020.80(b)(3)(A)(iii) of title 50 of the Illinois Administrative Code. 50 Ill.Adm.Code § 7020.80(b)(3)(A)(iii) (Supp.1986) (as amended Oct. 15, 1985).

In summary, the arbitrator did not err in refusing the continuance for the following reasons:

(1) Section 19(b-1) requires the respondent, within 15 days after receipt of notice that a petition was filed, to file a written response to each claim, copies of reports, records, documents and affidavits in its possession or demanded by subpoena and the name and address of witnesses on whom the respondent will rely in support of its response.

(2) The testimony of the claimant was given on November 3, 1986. The cause was continued to November 10, 1986. Respondent did nothing in the intervening week which would indicate material information was discovered which was not previously disclosed.

(3) Respondent requested alternative relief before the arbitrator, either a continuance, or an opportunity to present evidence to the Commission. The arbitrator, albeit it was not a viable alternative, granted respondent its...