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Wilson-raymond Constructors Co. v. Ind. Com.

OPINION FILED FEBRUARY 1, 1980.

WILSON-RAYMOND CONSTRUCTORS COMPANY, APPELLANT,

v.

THE INDUSTRIAL COMMISSION ET AL., (HELEN LYSKAWA, APPELLEE).



Appeal from the Circuit Court of Cook County, the Hon. Arthur L. Dunne, Judge, presiding.

MR. JUSTICE KLUCZYNSKI DELIVERED THE OPINION OF THE COURT:

This action was originally brought by Edwin Lyskawa under the Workmen's Compensation Act (Ill. Rev. Stat. 1971, ch. 48, par. 138.1 et seq.) to recover benefits for injuries sustained by him on September 3, 1971. The cause is brought to this court under Rule 302(a) (73 Ill.2d R. 302(a)) from a decision of the circuit court of Cook County confirming an award.

Edwin Lyskawa was hired by respondent, Wilson-Raymond Constructors Company, in approximately 1960 as a carpenter. He was assigned to work at various locations and eventually settled at White Sox Park, where, in approximately 1962, he became foreman of a four- or five-man crew composed of individuals who had also been hired by Wilson-Raymond and assigned to White Sox Park.

On September 3, 1971, Lyskawa was asked by a White Sox executive to remove a road sign from the nearby Dan Ryan Expressway. In attempting to remove the sign, approximately 14 feet above the ground, Lyskawa fell, breaking his left leg. In this instance, as always, Lyskawa received his work instructions from the White Sox.

On August 23, 1972, Lyskawa filed a claim with the Industrial Commission, specifying Wilson-Raymond as his employer. On December 9, 1974, an arbitrator entered an award of $79 per week for 26 weeks for temporary total disability and $63 per week for 160 weeks for the 80% loss of use of Lyskawa's left leg. That part of the award which relates to temporary disability has been paid, as have medical, surgical and hospital expenses.

Following the arbitrator's award, Wilson-Raymond filed a petition for review and a third-party action against the White Sox and its workmen's compensation insurer, Home Insurance Company. The White Sox and Home Insurance thereafter filed a special appearance and moved to dismiss the third-party action.

On August 19, 1975, pending review before the Commission, Lyskawa died from an unrelated cause. His widow, Helen, subsequently filed a motion to substitute herself for her husband as claimant. The White Sox and Home Insurance filed objections to the motion to substitute, arguing that the proceedings abated by reason of Lyskawa's death and citing the provisions of the Workmen's Compensation Act relating to abatement as they existed at the time of Lyskawa's injury on September 3, 1971 (see Ill. Rev. Stat. 1971, ch. 48, par. 138.8(e)(19)).

On March 14, 1977, the Commission rendered a decision affirming the arbitrator's award, dismissing the third-party action of Wilson-Raymond, allowing Helen Lyskawa's motion to substitute, and, by necessary implication, rejecting the argument of the White Sox and Home Insurance that the action had abated. On March 30, 1977, Wilson-Raymond filed a petition to recall the decision of the Commission, contending that the Commission had violated an agreement to reserve its ruling on the validity of the arbitrator's award pending presentation of further evidence by Wilson-Raymond. Five days later, on April 4, 1977, and before obtaining a ruling on its petition to recall, Wilson-Raymond filed a petition for writ of certiorari in the circuit court of Cook County. On September 28, 1977, the Commission denied Wilson-Raymond's petition to recall.

On August 22, 1978, claimant filed in the circuit court a motion to dismiss for lack of jurisdiction, contending that Wilson-Raymond's filing of its petition for writ of certiorari on April 4, 1977, was premature since the Commission had not yet ruled on Wilson-Raymond's petition for recall at that time. The circuit court denied the motion to dismiss that same day, August 22, 1978. One week later, on August 29, 1978, the circuit court confirmed the Commission's decision affirming the arbitrator's award. This appeal followed. We hold that the Commission erred in declining to rule that Lyskawa's death caused the action to abate. It was therefore improper to allow his widow's motion to substitute.

The law in effect at the time of Lyskawa's injury, September 3, 1971, provided:

"In a case of specific loss other than by amputation under the provisions of this paragraph the amount of which loss has been determined under the provisions of this Act, or in a case of specific loss by amputation under the provisions of this paragraph, and the subsequent death of such injured employee from other causes than such injury leaving a widow or lineal dependents or both surviving before payment in full for such injury, then the balance remaining due for such injury is payable to such dependents, in the proportion which such dependency bears to total dependency." (Emphasis added.) (Ill. Rev. Stat. 1971, ch. 48, par. 138.8(e)(19).)

Cases interpreting the language of the provision hold that a claim for compensation for specific loss abates and that substitution is improper where, as here, the claimant dies from an unrelated cause after an arbitrator enters an award but before the Commission rules on the employer's petition for review. (Wm. J. Burns International Detective Agency v. Industrial Com. (1966), 36 Ill.2d 225, 226-27; Pullman-Standard Car Manufacturing Co. v. Industrial Com. (1947), 396 Ill. 386, 387; Neumann v. Industrial Com. (1947), 396 Ill. 224, 229-30.) The reasoning of these cases is that no loss "has been determined" within the meaning of the statute unless the Commission itself, rather than an arbitrator, has rendered a decision specifying its finding on the issue of the amount of loss or unless the matter has become finalized in some other way as, for example, by settlement or failure of the employer to seek review of the arbitrator's award by the Commission.

Helen Lyskawa argues that the applicable law, insofar as the abatement and substitution issues are concerned, is the law as amended in 1972 and 1975 rather than the law in effect at the time of the injury. The 1972 amendment changed the statute in such a way as to allow substitution if the Commission or an arbitrator determined the amount of specific loss (Pub. Act 77-1871, 1972 Ill. Laws 148, 163; Ill. Rev. Stat. 1973, ch. 48, par. 138.8(e)(19)), and the 1975 amendment removed any requirement that specific loss be determined before substitution would be allowed (Pub. Act 79-79, 1975 Ill. Laws 224, 257; Ill. Rev. Stat. 1975, ch. 48, par. 138.8(e)(19)). Mrs. ...


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