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04/15/87 Hardin Sign Company, v. Al Commission Et Al.

April 15, 1987

HARDIN SIGN COMPANY, APPELLANT

v.

INDUSTRIAL COMMISSION ET AL. (JAMES T. HUGHES, APPELLEE)



APPELLATE COURT OF ILLINOIS, THIRD DISTRICT, INDUSTRIAL COMMISSION DIVISION

506 N.E.2d 1066, 154 Ill. App. 3d 386, 107 Ill. Dec. 175 1987.IL.502

Appeal from the Circuit Court of Peoria County; the Hon. Robert E. Manning, Judge, presiding.

APPELLATE Judges:

JUSTICE KASSERMAN delivered the opinion of the court. BARRY, P.J., and McCULLOUGH, McNAMARA, and WOODWARD, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE KASSERMAN

Claimant, James T. Hughes, filed an application for adjustment of claim under the Workmen's Compensation Act (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 section 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 ...


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