Westinghouse Airbrake Co. v. INDUS. COM'N, 3-98-0470 WC.

• Decision Date: 29 July 1999
• Docket Number: No. 3-98-0470 WC.,3-98-0470 WC.
• Citation: 306 Ill. App.3d 853,715 N.E.2d 294,239 Ill.Dec. 849
• Parties: WESTINGHOUSE AIRBRAKE CO., Appellant, v. The INDUSTRIAL COMMISSION et al. (Ophie D. Brook, surviving spouse of Lawrence H. Brook, Appellee). Howard Printing Company and CNA Insurance Companies, Appellants, v. The Industrial Commission et al. (Bertha Heller, surviving spouse of Lyle Heller, Appellee). Howard Printing Company and CNA Insurance Companies, Appellants, v. The Industrial Commission et al. (Lyle Heller, Appellee).
• Court: United States Appellate Court of Illinois

715 N.E.2d 294

306 Ill. App.3d 853

239 Ill.Dec. 849

WESTINGHOUSE AIRBRAKE CO., Appellant, v. The INDUSTRIAL COMMISSION et al. (Ophie D. Brook, surviving spouse of Lawrence H. Brook, Appellee).

Howard Printing Company and CNA Insurance Companies, Appellants, v. The Industrial Commission et al. (Bertha Heller, surviving spouse of Lyle Heller, Appellee).

Howard Printing Company and CNA Insurance Companies, Appellants, v. The Industrial Commission et al. (Lyle Heller, Appellee).

No. 3-98-0470 WC.

Appellate Court of Illinois, Third District, Industrial Commission Division.

July 29, 1999.

Andrew R. Makauskas, Brady, Connolly & Masuda, P.C., Chicago, for CNA Insurance Companies, Howard Printing Company.

Timothy J. Cassidy, Cassidy & Mueller, Peoria, for Appellant.

John A. Slevin, Vonachen, Lawless, Trager & Slevin, Peoria, for Bertha Heller.

Justice COLWELL delivered the opinion of the court:

This matter comes before the court as an interlocutory appeal pursuant to Supreme Court Rule 308(a). 155 Ill.2d R. 308(a). We are asked to determine the following questions of law:

"(a) Whether claims for injuries due to asbestos exposure can be brought under the Workers' Compensation Act.

(b) Whether Section 1(f) of the Occupational Disease (sic) Act applies to claims of injury from asbestos exposure once such claim is brought under the Workers' Compensation Act.

(c) Whether in cases 97 MR 108 and 97 MR 109 the Circuit Court is deprived of subject matter jurisdiction where the plaintiff received the Industrial Commission's Decisions on February 27, 1997, delivered her request for summons and required fees to the Circuit Court Clerk on March 19, 1997, during regular office hours and prior to closing time of the clerk's office, but where the request for summons was not file stamped until March 20, 1997, but prior to opening of the Clerk's office."

Appellate court review pursuant to Supreme Court Rule 308(a) is limited to those questions certified by the trial court. McGurk v. Lincolnway Community School District No. 210, 287 Ill.App.3d 1059, 1062, 223 Ill.Dec. 127, 679 N.E.2d 71 (1997).

PROCEDURAL HISTORY

Claimant, Lyle Heller (Lyle), retired from his employment with respondent, Howard Printing Company (Howard), in 1978. On October 15, 1992, Lyle filed an application for adjustment of claim (No. 92-WC-52213) against Howard under the provisions of the Workers' Occupational Diseases Act (820 ILCS 310/1 et seq. (West 1996)). Lyle later filed an additional application for adjustment of claim (No. 93-WC-05197) against Howard, also under the provisions of the Occupational Diseases Act. Subsequently thereafter, Lyle Heller amended his applications to include respondent, CNA Insurance Companies (CNA). In addition, Lyle amended his applications to seek benefits under the provisions of the Workers' Compensation Act (820 ILCS 305/1 et seq. (West 1996)), rather than the Occupational Diseases Act. When Lyle died in 1994, claimant, Bertha Heller (Bertha), Lyle's widow, filed an application for adjustment of claim (No. 95-WC-13909) on March 14, 1995, against respondents, Howard and CNA, seeking benefits under the provisions of the Workers' Compensation Act.

Lawrence H. Brook (Lawrence) last worked for respondent, Westinghouse Airbrake Co. (Westinghouse), on January 31, 1976. Lawrence died on August 15, 1993. On June 19, 1995, claimant, Ophie D. Brook, Lawrence's surviving spouse, filed an application for adjustment of claim (No. 93-WC-39505) against Westinghouse seeking benefits under the provisions of the Workers' Compensation Act.

In each case, the respondents filed motions to dismiss, and the arbitrator dismissed the claimants' applications. The arbitrator found that the claimants improperly filed their claims under the Workers' Compensation Act and that the statute of limitations in section 1(f) of the Occupational Diseases Act barred their claims.

Each of the claimants filed petitions for review, and the Commission affirmed. In the Heller appeals, the Commission affirmed and adopted the arbitrator's decision and further added that even if the Heller claims were considered repetitive or specific trauma cases, there was no manifestation or disablement until 1991, and therefore those cases would fail since there was no statutory notice. In the Brook appeal, the Commission affirmed and adopted the arbitrator's decision without further comment.

The claimants in each case sought judicial review, and the circuit court of Peoria County consolidated all of the cases (Bertha, 97-MR-108; Lyle, 97-MR-109; and Brook 97-MR-179). The circuit court then reversed and remanded each of the cases. The circuit court also granted the parties' motion for a rule 308(a) finding.

This court granted the claimants' petitions for leave to appeal pursuant to Supreme Court Rule 308(a) and further granted Westinghouse's motion to consolidate the appeals (Heller, X-XX-XXXX; and Brook, X-XX-XXXX) under case number X-XX-XXXX.

ANALYSIS

I. APPELLATE JURISDICTION OF BROOK APPEAL

Prior to considering the merits of an appeal, we are duty bound to determine whether the appeal has been properly taken so as to invoke our jurisdiction. Bell Federal Savings and Loan Ass'n v. Bank of Ravenswood, 203 Ill.App.3d 219, 223, 148 Ill.Dec. 559, 560 N.E.2d 1156 (1990). In the Brook appeal, the parties waived their right to oral argument before the Commission and further waived their right to have a majority of commissioners decide the appeal. Instead, the parties agreed that only one commissioner would decide the appeal. As a result, the Commission's decision is signed by Commissioner Barry A. Ketter only.

Section 19(e) of the Workers' Compensation Act currently provides, in pertinent part:

"A decision of the Commission shall be approved by a majority of Commissioners present at such hearing if any; provided, if no such hearing is held, a decision of the Commission shall be approved by a majority of a panel of 3 members of the Commission as described in this section." (Emphasis added.) 820 ILCS 305/19(e) (West 1996).

Because a majority of a panel of three commissioners did not approve the Commission's decision, we find that the Commission's decision is not valid.

The question then is whether the parties may waive the requirements of the Workers' Compensation Act. The legislature is vested with the power to enact laws (People v. Garner, 147 Ill.2d 467, 475, 168 Ill.Dec. 833, 590 N.E.2d 470 (1992)), and a statute must be enforced as enacted by the legislature. Raintree Health Care Center v. Human Rights Comm'n, 173 Ill.2d 469, 490-91, 220 Ill.Dec. 124, 672 N.E.2d 1136 (1996). A court is not free to rewrite legislation, or to ignore an express requirement contained in a statute. People v. Palmer, 148 Ill.2d 70, 88, 170 Ill.Dec. 260, 592 N.E.2d 940 (1992). If we cannot rewrite the requirements of the Workers' Compensation Act, then the parties cannot ignore or rewrite legislation and usurp the legislature's authority to enact laws.

Based on the foregoing, this court has no jurisdiction to entertain the Brook appeal. Accordingly, we dismiss the Brook appeal and remand that cause to the Commission to enter a valid decision. As a result, we will address the merits of the Heller appeals only.

II. CLAIMS FOR INJURY UNDER THE WORKERS' COMPENSATION ACT

The first certified question on appeal asks us to decide whether a claimant may bring a claim for injuries due to asbestos exposure under the Workers' Compensation Act. Because Lyle's claims and Bertha's claim are separate claims (Goodson v. Industrial Comm'n, 190 Ill.App.3d 16, 18, 137 Ill.Dec. 214, 545 N.E.2d 975 (1989)), we must first determine which version of the Workers' Compensation Act applies to their claims.

A worker's rights under the Workers' Compensation Act are governed by the law in effect at the time of injury. Wilson-Raymond Constructors Co. v. Industrial Comm'n, 79 Ill.2d 45, 51, 37 Ill.Dec. 582, 402 N.E.2d 584 (1980). A survivor's claim for death benefits, however, is controlled by the law in effect on the date of the worker's death, not the law at the time of injury. Goodson, 190 Ill.App.3d at 18, 137 Ill.Dec. 214, 545 N.E.2d 975. Therefore, the law in effect in 1978, the date of Lyle's retirement and consequently his last exposure, controls Lyle's claims, and the law in effect in 1994, the date of Lyle's death, controls Bertha's claim.

In 1984, the legislature twice amended section 6(d) of the Workers' Compensation Act to include references to asbestos. See Pub. Act 83-1051, eff. July 1, 1984 (adding reference to asbestos in third paragraph) and Pub. Act 83-1125, eff. June 30, 1984 (thrice inserting "or asbestos"). As a result, in 1994, section 6(d) provided:

"(d) Every employer shall notify each injured employee who has been granted compensation under the provisions of Section 8 of this Act of his rights to rehabilitation services and advise him of the locations of available public rehabilitation centers and any other such services of which the employer has knowledge.

In any case, other than one where the injury was caused by exposure to radiological materials or equipment or asbestos unless the application for compensation is filed with the Commission within 3 years after the date of the accident, where no compensation has been paid, or within 2 years after the date of the last payment of compensation, where any has been paid, whichever shall be later, the right to file such application shall be barred.

In any case of injury caused by exposure to radiological materials or equipment or asbestos, unless application for compensation is filed with the Commission within 25 years after the last day that the employee was employed in an environment of hazardous radiological activity or asbestos, the right to file such application shall be barred.

If in any case except one where the injury was caused by exposure to radiological materials or equipment or asbestos, the accidental injury results in death

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