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11/28/94 EDWARD BLACKE v. INDUSTRIAL COMMISSION ET

November 28, 1994

EDWARD BLACKE, APPELLANT,
v.
THE INDUSTRIAL COMMISSION ET AL. (LIMESTONE TOWNSHIP FIRE PROTECTION DISTRICT, APPELLEE.)



Appeal from Circuit Court of Kankakee County. No. 93MR61. Honorable Wayne Dyer, Judge Presiding.

Rehearing Denied and Released for Publication January 18, 1995.

Presiding Justice Mccullough delivered the opinion of the court: McCULLOUGH, P.j., with Rakowski and Slater, JJ., Concurring. Woodward and Rarick, JJ., Dissent.

The opinion of the court was delivered by: Mccullough

PRESIDING JUSTICE MCCULLOUGH delivered the opinion of the court:

On March 4, 1993, claimant, Edward Blacke, filed an application for judgment in the circuit court of Kankakee County against his employer, Limestone Township Fire Protection District (employer), for payment of benefits and penalties awarded under the Workers' Compensation Act (Act) (820 ILCS 305/1 et seq. (West 1992)). The circuit court denied claimant's application on the basis that it was time-barred by the five-year limitation provisions of section 13-205 of the Code of Civil Procedure (Code) (735 ILCS 5/13-205 (West 1992)). Claimant appeals, alleging the court erred in applying any limitation period to actions for collection of unpaid workers' compensation benefits and, alternatively, if any limitation period does apply, it is the 10-year period of section 13-206 of the Code (735 ILCS 5/13-206 (West 1992)). We affirm.

The present controversy stems from employment-related injuries sustained by the claimant in June 1978. Following a hearing in June 1982, the arbitrator awarded claimant approximately 37 weeks of benefits based on a finding of both temporary total and permanent partial disability. In January 1984 the Industrial Commission (Commission) affirmed the award and no further appeal was taken. The employer never made any payments on the award. In October 1992, pursuant to a petition filed by the claimant, the Commission awarded him additional compensation, based on penalties assessed against the employer for nonpayment of the award pursuant to sections 19(k) and (1) of the Act (820 ILCS 305/19(k),(1) (West 1992)).

In March 1993, claimant filed an application for judgment in the circuit court pursuant to section 19(g) of the Act (820 ILCS 305/19(g) (West 1992)), seeking payment of both benefits and penalties awarded. The court denied the application as untimely pursuant to section 13-205 of the Code as to both the original award and subsequent penalties assessed.

Faced with an employer's failure or refusal to pay a final award determined by an arbitrator or affirmed by a decision of the Commission from which no further appeal is taken, section 19(g) of the Act provides a statutory remedy for a claimant to reduce the award to an enforceable judgment in the circuit court. The award itself is not a judgment. A judgment is "the final consideration and determination of a court upon matters submitted to it in an action or proceeding * * * [and] is the judicial act of the court." ( Blakeslee's Storage Warehouses, Inc. v. City of Chicago (1938), 369 Ill. 480, 482-83, 17 N.E.2d 1, 3.) The statutory prerequisites for obtaining the judgment require only that the claimant give notice to the employer of the time and place for entry of judgment and present the circuit court with a certified copy of the award or decision of the Commission. (820 ILCS 305/19(g) (West 1992).) Section 19(g) contains no time period within which a claimant must file for judgment.

Claimant argues that the primary purpose supporting statutes of limitation (the prevention of false or stale claims when evidence to refute allegations brought long after an occurrence might be lost or unavailable) is not served when applied to section 19(g) proceedings, because the claim has already been tried and determined on its merits. Claimant cites Elles v. Industrial Comm'n (1940), 375 Ill. 107, 30 N.E.2d 615, in support of his view that provisions of the Code and rules of the supreme court are inapplicable to Commission proceedings, including those brought under section 19 of the Act (820 ILCS 305/19 (West 1992)). Contrary to claimant's assertion, however, the Elles court did not hold that provisions of the Code are in all instances inapplicable to cases arising under the Act, but only "in so far as or to the extent that the procedure is regulated by section 19 of the Workmen's Compensation act." ( Elles, 375 Ill. at 113, 30 N.E.2d at 618.) Other cases have adopted sections of the Code deemed pertinent in areas where the Act has been silent. Courts have allowed the statutory interest provided for under section 2-1303 of the Code (735 ILCS 5/2-1303 (West 1992)) to be imposed against judgments for unpaid compensation awards where the Act omitted reference to the accrual of interest on an unpaid arbitrator's award. See Proctor Community Hospital v. Industrial Comm'n (1971), 50 Ill. 2d 7, 9, 276 N.E.2d 342, 343; Bray v. Industrial Comm'n (1987), 161 Ill. App. 3d 87, 93, 513 N.E.2d 1045, 1049, 112 Ill. Dec. 436; Ballard v. Industrial Comm'n (1988), 172 Ill. App. 3d 41, 45, 526 N.E.2d 675, 678, 122 Ill. Dec. 416.

In the absence of a legislative intent to the contrary, courts have applied provisions of the Code when deemed necessary to facilitate the purposes of the Act; policy considerations of bringing the finality and certainty of reducing an award to an enforceable judgment facilitates those purposes. There is no indication the legislature intended to exempt causes of action brought under section 19(g) from a limitations period--in cases where it has intended to do so it has expressly stated. (See 735 ILCS 5/13-202.1 (West 1992).) We conclude that a limitation period is applicable to bringing a cause of action pursuant to section 19(g) of the Act. It remains to be determined however, whether the five-year period provided in section 13-205 of Code or the 10-year period of section 13-206 is appropriate.

Claimant alleges his action is one based on "written contracts, or other evidences of indebtedness in writing" within the meaning of section 13-206 of the Code and the 10-year limitation should apply. The employer claims the five-year limitation of section 13-205, encompassing "all civil actions not otherwise provided for," applies to the section 19(g) remedy for reducing the compensation award to judgment.

The precise issue of whether a statutory right of action is governed by the 5- or the 10-year limitations period of the Code has been addressed and well settled by numerous authorities. In People ex rel. Powles v. County of Alexander (1941), 310 Ill. App. 602, 604, 35 N.E.2d 92, 93, the plaintiffs instituted a suit to collect unpaid benefits due them under a statute for the relief of the blind, contending the action was based on "'written evidence of indebtedness'" within the meaning of the 10-year limitations statute. The court rejected that argument and stated:

"The obligation of the county to pay and the right of the plaintiffs to receive the benefits sought to be recovered in the present action arise by virtue of the statute. It has been held that where liability results from a statute, an action to enforce such liability is a 'civil action not otherwise provided for' * * * and is therefore governed by the five[-]year statute of limitations. (Parmelee v. Price[ (1904)], 208 Ill. 544[ a statutory action to recover unpaid stock subscriptions']; Blakeslee's Warehouses, Inc. v. City of Chicago, 369 Ill. 480[, 17 N.E.2d 1].)" ( Powles, 310 Ill. App. at 604, 35 N.E.2d at 94.)

(See also Lyons v. County of Morgan (1942), 313 Ill. App. 296, 298, 40 N.E.2d 103, 104; Keller v. Boatman's Bank (1989), 186 Ill. App. 3d 448, 452, 542 N.E.2d 1261, 1264, 134 ...


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