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King v. State Industrial Commission

December 30, 1998


Appeal from Circuit Court of Cook County No. 97L50024 Honorable Lester A. Bonaguro, Judge Presiding.

The opinion of the court was delivered by: Presiding Justice McCULLOUGH


Industrial Commission Division

Claimant Joe W. King appeals from an order of the circuit court of Cook County confirming the decision of the Illinois Industrial Commission (Commission). The respondent employer is R.R. Donnelly. The narrow issue presented by this case is whether, as a matter of law, section 12 of the Workers' Compensation Act (Act) (820 ILCS 305/12 (West 1996)) may be applied so as to require a claimant, for whom the Commission has made an award of permanent total disability (PTD), to attend a medical examination scheduled by respondent even though no petition pursuant to section 8(f) or 19(h)of the Act is pending.

This court rendered an opinion reversing the circuit court's order. Respondent filed a petition for rehearing, claimant filed a response, and Illinois Self-Insurers was allowed to file an amicus brief. We now grant the petition for rehearing, withdraw our opinion filed April 21, 1998, and by this opinion, affirm the circuit court of Cook County.

On April 14, 1987, claimant filed an application for adjustment of claim alleging injuries to his right shoulder while picking up boards on July 13, 1986. On April 25, 1991, the arbitrator awarded claimant $240 per week for 154 2/7 weeks as temporary total disability and $240 per week for life for PTD. Ill. Rev. Stat. 1991, ch. 48, pars. 138.8(b), 138.8(f). The Commission affirmed and adopted the arbitrator's decision, specifically finding that claimant established that, although not altogether incapacitated for work, he was so handicapped that he would not be employed regularly in any well-known branch of the labor market. Neither party appealed.

On April 17, 1996, respondent filed a motion to suspend claimant's compensation because he failed to attend a medical examination. At the hearing on the motion to suspend compensation conducted before Commissioner Richard Gilgas on June 18, 1996, respondent submitted a copy of an October 18, 1995, letter from respondent's attorney, Mark Braun, to claimant's attorney, Lewis Gaines, notifying Gaines that an appointment for a general physical examination of claimant by Dr. George Cooper was scheduled for 11:30 a.m. on November 7, 1995. The doctor's address and telephone number were provided in the letter, and a $20 check to defray claimant's costs for transportation was enclosed. Also submitted by respondent was a November 21, 1995, letter from Braun to Gaines indicating respondent had set up an appointment for claimant to be seen by Cooper. Claimant did not show for the appointment, and respondent did not have notice from claimant's attorney offering a reason for the cancellation. Braun asked Gaines to call the doctor's office and arrange for an appointment convenient to claimant.

Braun indicated to the Commissioner that he attempted to contact Gaines by telephone on December 5, 1995, and April 13, 1996. Gaines advised Braun that he felt claimant was not required to comply.

Gaines acknowledged receiving correspondence from respondent with regard to claimant submitting to a physical examination. He also conceded receiving the telephone call from Braun. In addition to the two letters tendered by respondent, claimant submitted a copy of a July 21, 1995, letter from Braun to Gaines notifying Gaines of a 10:15 a.m. appointment on July 26, 1996, for claimant to be physically examined by Dr. Bernard Bach. The doctor's address and telephone was provided, and a $15 check for transportation expense was enclosed. There was another letter from Braun to Gaines, dated December 13, 1995, stating the Act permitted periodic examination, indicating no response from Gaines to Braun's attempts to arrange appointments, and requesting a response from Gaines.

The Commission denied the motion to suspend compensation, but ordered claimant to submit himself to an "independent" medical examination pursuant to section 12 of the Act (820 ILCS 305/12 (West 1996)).

Respondent has not appealed or cross-appealed the decision of the Commission to deny suspension of compensation. 820 ILCS 305/19(f)(2) (West 1996); 155 Ill. 2d Rs. 303(a)(1), (a)(3). As a result, the issue of whether the Commission erred in refusing to suspend compensation will not be considered. Lagen v. Balcor Co., 274 Ill. App. 3d 11, 14, 653 N.E.2d 968, 970 (1995).

Section 8(f) provides, in relevant part:

"(f) In case of complete disability, which renders the employee wholly and permanently incapable of work, or in the specific case of total and permanent disability as provided in subparagraph 18 of paragraph (e) of this Section, compensation shall be payable at the rate provided in subparagraph 2 of paragraph (b) of this Section for life."

"An employee entitled to benefits under paragraph (f) of this Section shall also be entitled to receive from the Rate Adjustment Fund provided in paragraph (f) of Section 7 of the supplementary ...

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