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R.D. Masonry, Inc. v. Industrial Commission

May 26, 2004

R.D. MASONRY, INC., APPELLANT,
v.
THE INDUSTRIAL COMMISSION, ET AL., (SCOTT HUNTER, APPELLEE).



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY No. 02 L 50424 HONORABLE ALEXANDER P. WHITE, JUDGE PRESIDING.

The opinion of the court was delivered by: Justice Hoffman

UNPUBLISHED

R.D. Masonry, Inc. (R.D.) appeals from an order of the circuit court confirming a decision of the Industrial Commission (Commission), awarding the claimant, Scott Hunter, benefits under the Workers' Compensation Act (Act) (820 ILCS 305/1 et seq. (West 1998)). For the reasons which follow, we reverse and remand this matter to the Commission with directions.

The procedural history and facts pertinent to a resolution of this appeal are as follows.

The claimant filed an application for adjustment of claim under the Act seeking benefits for injuries he alleged that he received on August 21, 1998, while in the employ of R.D. Subsequent to the filing of the claimant's application for adjustment of claim, R.D. requested that he be examined by Dr. Avi Bernstein pursuant to the provisions of section 12 of the Act (820 ILCS 305/12 (West 1998)). That examination was conducted on December 14, 1998.

On March 30, 1999, following a hearing conducted pursuant to section 19(b) of the Act (820 ILCS 305/19(b)(West 1998)), an arbitrator filed a decision, finding, inter alia, that: the claimant sustained accidental injuries on August 21, 1998, arising out of and in the scope of his employment with R.D.; a causal relationship existed between the claimant's condition of ill-being and his work-related accident; and the claimant's average weekly wage for purposes of calculating benefits under the Act was $1,077.74. The arbitrator further found that the claimant was temporarily and totally disabled from August 31, 1998, through the date of the hearing on March 15, 1999, and awarded the claimant temporarily total disability (TTD) benefits for a total of 28 1/7 weeks. In deciding to award the claimant TTD benefits only through the date of the hearing, the arbitrator specifically found Dr. Bernstein's opinions to be "non-persuasive". Finally, the arbitrator awarded the claimant the sum of $793.09 for necessary medical expenses, but denied his request for an award of penalties against R.D.

R.D. sought a review of the arbitrator's March 30, 1999, decision before the Commission. While a review of that decision was pending, an adjuster representing R.D.'s insurance carrier sent a letter to the claimant's attorney on May 19, 1999, requesting that the claimant be re-examined by Dr. Bernstein on May 27, 1999. The claimant did not attend the appointment. The claimant testified that he was not aware that any appointment had been scheduled and denied that his attorney ever told him that an appointment had been scheduled. The claimant's attorney, however, stated on the record that he instructed the claimant not to attend the examination. On May 28, 1999, the adjuster sent a second letter to the claimant's attorney offering to reschedule the claimant's appointment with Dr. Bernstein. On June 3, 1999, the claimant's attorney directed a letter to the adjuster stating that the claimant would not attend any examination until R.D. paid the benefits awarded by the arbitrator in her March 30, 1999, decision.

On June 24, 1999, the Commission issued a decision modifying the arbitrator's calculation of the claimant's average weekly wage to $1,020.35. In all other respects, however, the Commission affirmed and adopted the arbitrator's decision.

R.D. filed an action for judicial review of the Commission's decision of June 24, 1999, in the circuit court of Cook County. The circuit court determined that the claimant's average weekly wage was $1,047.50, and recalculated the weekly TTD benefits to which he was entitled. The circuit court confirmed the Commission's decision in all other respects. R.D. appealed and, on December 21, 2000, this court affirmed the judgment of the circuit court. R.D. Masonry, Inc. v. Industrial Comm'n, No. 1-00-0614WC (2000) (unpublished order under Supreme Court Rule 23) (hereinafter referred to as "R.D. Masonry I").

In January 2001, after this court issued its decision in R.D. Masonry I, R.D. paid the first section 19(b) award with interest in the sum of $23,423.82. At that same time, R.D. also paid the claimant additional TTD benefits in the sum of $7,282.58 for the period from March 16, 1999, through May 27, 1999. However, R.D. declined to pay the claimant any TTD benefits for the period subsequent to May 27, 1999, by reason of his having refused to submit to the medical examination scheduled for that date.

On remand, the matter came before an arbitrator for a second section 19(b) hearing. Subsequent to that hearing, on June 29, 2001, the arbitrator issued a decision, finding that the claimant was entitled to an award of additional TTD benefits for the period from March 16, 1999, through May 27, 1999. However, by reason of the claimant's failure to attend a section 12 medical examination (see 820 ILCS 305/12 (West 1998)) scheduled by R.D. for May 27, 1999, the arbitrator found that the claimant was not entitled to any benefits for the period subsequent to that date. The arbitrator also awarded the claimant an additional $237.65 for medical expenses, but again denied his request for penalties.

The claimant sought a review of the arbitrator's June 29, 2001, decision before the Commission. On March 5, 2002, the Commission, with one commissioner dissenting, issued a decision modifying the arbitrator's decision and awarding the claimant TTD benefits for the period of March 16, 1999, through February 1, 2001, the date the claimant was released to return to work. In its decision, the Commission, relying upon this court's decision in Fencl-Tufo Chevrolet, Inc. v. Industrial Comm'n, 169 Ill. App. 3d 510, 523 N.E.2d 926 (1988), held that the claimant was not required to attend the medical examination scheduled by R.D. for May 27, 1999, and, as a consequence, his benefits were not subject to suspension under section 12 of the Act. The Commission rested its decision in this regard upon the fact that R.D. was contesting the claimant's right to receive benefits under the Act, and had not paid him any such benefits at the time it requested the examination on May 27, 1999. Although the Commission held that the claimant was not required to attend the scheduled medical examination, it specifically found that, because the claimant's need for further treatment and his work status as of May 1999 were not known, R.D.'s demand for a second medical examination of the claimant was for a proper purpose and not for the purpose of harassing him. Finally, the Commission denied the claimant's petition for an award of penalties.

R.D. sought a judicial review of the Commission's March 5, 2002, decision in the circuit court of Cook County. The circuit court confirmed the Commission's decision, and this appeal followed.

R.D. argues on appeal that the Commission's determination that the claimant was not required to attend the medical examination that it scheduled for May 27, 1999, is contrary to law and that the Commission erred in awarding the claimant TTD benefits for the period subsequent to that date. R.D. requests that we reverse the judgment of the circuit court and hold that the claimant's conduct in refusing to attend the scheduled examination was in ...


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