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August 4, 1994



The opinion of the court was delivered by: Freeman

JUSTICE FREEMAN delivered the opinion of the court:

On April 23, 1992, plaintiffs, Illinois Graphics and State Farm Insurance Company, filed an action in the circuit court of McLean County, denominating their complaint as a "19(g) Petition to Reduce an Award of the Industrial Commission to a Judgment." On May 29, 1992, defendant, Iona Nickum, filed a motion to dismiss the petition, which did not specify any provision of the Code of Civil Procedure (Code) (see Ill. Rev. Stat. 1989, ch. 110, par. 2-101 et seq.). Following hearing, the circuit court dismissed the petition with prejudice. Plaintiffs appealed, and the appellate court affirmed with one Dissent (240 Ill. App. 3d 981). We granted plaintiffs' petition for leave to appeal pursuant to Supreme Court Rule 315 (134 Ill. 2d R. 315) and now reverse.


In January 1988, Iona Nickum filed an application for adjustment of claim with the Industrial Commission (Commission), representing that she had suffered an accidental back injury on October 16, 1987, arising out of and in the course of her employment with Illinois Graphics Company (Illinois Graphics). Pursuant to the terms of the Workers' Compensation Act (Act) (Ill. Rev. Stat. 1989, ch. 48, par. 138.1 et seq.), State Farm InsuranceCompany (State Farm), Illinois Graphics' workers' compensation insurer, began paying Nickum temporary total disability (TTD) benefits. At the time of the subsequent workers' compensation arbitration, the parties agreed that State Farm had paid Nickum $7,899.95 in TTD benefits.

Following hearing on the matter, the arbitrator entered findings of fact, stated within the memorandum of her decision, including: Nickum had alleged in her claim that, on October 16, 1987, she was at work, lifted a box and experienced a sharp pain in her back; Nickum testified that she had telephoned her employer on that date to report that she had "done something to her back" and could not work, but she had not, admittedly, indicated that any precipitating incident had occurred while she was at work; Nickum's medical history revealed that she had experienced continual back pain and discomfort commencing in July 1987; in August 1987 she had told her doctor that she was not sure how she might have injured her back; in late August 1987 she was diagnosed as suffering from right lumbar radiculitis; on October 22, 1987, Nickum was seen by her physician, still complaining and indicating that her condition had been continuous and not improved; and her medical records did not indicate an October 16, 1987, incident, nor did her physician learn of any "incidents" which might have caused her condition.

The arbitrator also found that $7,899.95 in TTD benefits had been paid to Nickum because of the injury. The arbitrator concluded that Nickum failed to prove an accidental injury arising out of and in the course of her employment and failed to demonstrate the necessary causal relationship. The arbitrator, consequently, denied Nickum's claim for compensation, and Nickum appealed the decision to the Commission.

The Commission affirmed the arbitrator's decisionand adopted and incorporated the arbitrator's memorandum of decision into its own decision and opinion. The Commission additionally stated that Illinois Graphics "shall have credit for all amounts paid" to Nickum "on account of said accidental injury" and ordered Illinois Graphics to pay Nickum interest under the Act. Neither party appealed the Commission's decision.

State Farm demanded that Nickum reimburse it the TTD benefits payments. Nickum refused to do so. Plaintiffs then filed the present action in the circuit court. The complaint alleged the aforementioned facts concerning Nickum's claim and incorporated the Commission's decision and opinion by specific reference. The petition cited section 19(g) of the Act as authorizing the circuit court to enter a judgment in accordance with a decision of the Commission. (Ill. Rev. Stat. 1989, ch. 48, par. 138.19(g).) The petition also cited World Color Press v. Industrial Comm'n (1984), 125 Ill. App. 3d 469, 80 Ill. Dec. 818, 466 N.E.2d 270, and Liberty Mutual Insurance Co. v. Zambole (1986), 141 Ill. App. 3d 803, 96 Ill. Dec. 318, 491 N.E.2d 132, as authority that "to hold plaintiff to administrative exactness in its payment prior to adjudication and then later deny[] it the right to recoup any excess payment that may later occur would frustrate the primary purpose of the Act to provide prompt payment to the employee of benefits." The petition prayed that the circuit court enter judgment against defendant in the amount of $7,899.95 and award costs and attorney fees.

Nickum moved to dismiss the petition, but did not specify any provision of the Code. The motion, in relevant part, asserted that: (1) the Act was devoid of provisions requiring the repayment of TTD benefits voluntarily paid to a claimant employee prior to arbitration; (2) the Commission's decision and opinion did not constitute an "award" or "decision" capable of reduction to judgment by the circuit court (Ill. Rev. Stat. 1989, ch. 48, par. 138.19(g)); (3) the authorities cited by plaintiffs, World Color Press and Liberty Mutual, were factually distinguishable from the instant case; (4) no statutory or case law authorized entry of the requested judgment in plaintiffs' favor; and (5) under Illinois law, money paid under a claim of right with full knowledge of the underlying facts and absent coercion, fraud or superior bargaining position by the transferee, and money paid under a mistake of law, is not recoverable. Defendant did not support the motion with affidavits or other evidence.

Following hearing on the motion, the trial court found that no "award" had been entered by the Commission, and that the Commission's "decision" did not constitute a determination that Nickum was liable to plaintiffs for repayment of the TTD benefits. According to the trial court, the Commission's decision was thus incapable of being reduced to judgment pursuant to section 19(g). The trial court also found that the TTD payments were involuntary in light of certain statutory penalties for nonpayment under the Act, and expressed that the payments ought to be recoverable under the Illinois Constitution. The trial court concluded by stating that section 19(g) of the Act could not provide the vehicle for that relief and dismissed the petition with prejudice. Plaintiffs did not seek leave to amend their complaint at any time prior to or at the time of dismissal.

Plaintiffs appealed. Their appellate brief cited Liberty Mutual, but they again made no request for leave to amend the complaint (see 134 Ill. 2d R. 366). The appellate court construed section 19(g) as providing a method by which either an employee or an employer might have an award of the Commission reduced to judgment. The appellate court found, however, that the Commission had not granted such an award. Relying on Liberty Mutual and Celeste v. Industrial Comm'n (1990), 205 Ill. App. 3d 423, 150 Ill. Dec. 345, 562 N.E.2d 1148, the appellate court expressed that plaintiffs had correctly argued their right to recover benefits paid to an unentitled employee, but also concluded that section 19(g) did not provide the means for them to do so.

At oral argument, plaintiffs requested that the case be remanded to allow them to replead. The appellate court found that plaintiffs had not sought leave to replead at the trial level, and had not raised the issue in their notice of appeal or requested the opportunity to replead in their appellate brief. The appellate court therefore concluded that remand was inappropriate. 240 Ill. App. 3d at 985.

The appellate court additionally addressed the argument presented by the Dissent that a complaint should not be dismissed unless it clearly appeared that no set of facts could be proven entitling the plaintiff to relief. (See Burdinie v. Village of Glendale Heights (1990), 139 Ill. 2d 501, 152 Ill. Dec. 121, 565 N.E.2d 654.) The appellate court qualified this rule to refer to dismissals with prejudice and viewed the rule as applicable only under circumstances where a plaintiff had requested leave to amend. In the appellate court's view, facts may not simply be pleaded with the expectation that a trial court will formulate a theory of relief. "In the complete absence in this case of any request by plaintiffs to be given the opportunity to reformulate an otherwise defective complaint, the circuit court cannot be expected to act as their counsel." 240 Ill. App. 3d at 986.


The general issue presented is whether the trial court properly granted the motion to dismiss the complaint with prejudice. Specifically, we are asked to decide (1) whether section 19(g) of the Workers' Compensation Act allows plaintiffs the right to a judgment torecover TTD benefits paid to an unentitled employee; and (2) whether a valid cause of action for a recovery of those payments was otherwise stated by the complaint or was sufficiently raised as a claim so as to survive a motion to dismiss under section 2-619(9).



Plaintiffs argue that dismissal of their complaint was in error because they are entitled to judgment under section 19(g) to recover TTD benefits amounts. Preliminarily, we note that the parties disagree over whether the motion to dismiss was brought under section 2-615 or section 2-619(9) of the Code; notably, there are distinct advantages concerning waiver which are attendant to each motion. In order, however, to resolve this issue concerning a section 19(g) judgment, we need not delve into those differences. We ...

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