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Elsbury v. Stann and Associates

December 15, 2006

VICKY ELSBURY, MOTHER AND NEXT THE FRIEND OF JENNIFER NICOLE AND KATE JACLYN, MINOR CHILDREN OF ROGER O'CONNOR, DECEASED; AND JAMES DOBRY PLAINTIFFS-APPELLEES,
v.
STANN AND ASSOCIATES, ILLINOIS EARTHCARE WORKERS' COMPENSATION TRUST; GROUP SELF INSURERS' INSOLVENCY FUND; THE STATE DEPARTMENT OF INSURANCE, RATE ADJUSTMENT FUND, JUDITH BAAR TOPINKA, TREASURER, STATE OF ILLINOIS, AS EX OFFICIO GUARDIAN OF THE ILLINOIS GROUP WORKERS' COMPENSATION POOL INSOLVENCY FUND, DEFENDANTS-APPELLANTS.



Appeal from Circuit Court of Cook County. Nos. 04 CH 259 & 02 L 51371 (consolidated) Honorable Martin S. Agran, Judge Presiding.

The opinion of the court was delivered by: Justice O'malley

Defendant, Judith Baar Topinka, the Treasurer of the State of Illinois (the Treasurer), appeals the judgment of the circuit court of Cook County granting plaintiffs' writ for mandamus.*fn1

Plaintiff James Dobry brought this mandamus action against the Treasurer seeking to compel her to tender the principal of her general bond to the Group Workers' Compensation Pool Insolvency Fund (the Insolvency Fund) to ensure payment of his award entered by the Illinois Industrial Commission (Commission), now known as the Illinois Workers' Compensation Commission. See 820 ILCS 305/13 (West 2004). The circuit court granted plaintiff's writ of mandamus, holding that the Insolvency Fund was intended to compensate individuals such as plaintiff and the relevant statutes required the Treasurer to protect the Insolvency Fund. For the reasons that follow, we affirm the judgment of the circuit court.

BACKGROUND

On April 17, 1996, plaintiff was injured while performing his duties as a cement worker for his employer, Marko Construction Company (MCC), and was thereafter unable to return to his regular duties. MCC contributed to the Earth Care Workers' Compensation Trust (the Earth Trust) pursuant to section 4a of the Workers' Compensation Act (the Act). 820 ILCS 305/4a et seq. (West 1996). Section 4a of the Act authorized employers 1-05-1620 with similar risks to form workers' compensation insurance pools in order to pool risks and administer premiums and claims themselves. The Earth Trust was such a pool authorized by section 4a of the Act.

Following plaintiff's injury, the Earth Trust made payments to him on his workers' compensation claim. However, on October 26, 2000, plaintiff's payments from the Earth Trust ceased. Subsequently, an order of liquidation was entered against the Earth Trust. On December 18, 2000, plaintiff filed an amended application for adjustment of claim naming the Treasurer as a party respondent pursuant to section 4a(5) of the Act, which states in pertinent part:

"The State Treasurer is ex-officio custodian of the Group Self-Insurers' Insolvency Fund. Monies in the Fund shall be deposited the same as are State funds ***. It shall be subject to audit the same as State funds and accounts and shall be protected by the general bond given by the State Treasurer. It is considered always appropriated for the purposes of compensating employees who are eligible to receive benefits from their employers pursuant to the provisions of the Workers' Compensation Act *** when their employer is the member of a group self-insurer and the group self-insurer has been unable to pay compensation due to 1-05-1620 financial insolvency either prior to or following the date of the award. Monies in the Fund may be used to compensate any type of injury or occupational disease which is compensable under [the] Act.

The State Treasurer shall be joined with the group self-insurer as party respondent in any claim, or application for adjustment of claim filed against a group self-insurer whenever the compensation and medical services provided by this Act may be unpaid by reason of default of an insolvent group self-insurer.

Payment shall be made out of the Group Self-Insurers' Insolvency Fund only upon order of the Commission and only after the penal sum of the surety bond and/or securities and the assessment against the individual members of the group self-insurer in default have been exhausted." 820 ILCS 305/4a(5) (West 1996).

On January 1, 2001, the General Assembly repealed section 4a of the Act and, through Public Act 91-757, enacted the Workers' Compensation Pool Law (Pool Law) (215 ILCS 5/107a.01 et seq. (West 2002)). Pub. Act 91-757 §10 (eff. January 11, 2001). The portions of section 107a.13 of the Pool Law that are relevant to the instant case are essentially identical to section 4a of the Act with the exception of the manner in which payment from the Group Worjers' Compensation Pool Insolvency Fund (Insolvency Fund) is ordered. Section 107a.13(c) states that "[p]ayment shall be made out of the Group Workers' Compensation Pool Insolvency Fund only upon order of the Director [of Insurance]" (215 ILCS 5/107a.13(c) (West 2002)), as opposed to payment upon order from the Commission (820 ILCS 305/4a(5) (West 1996)). The Pool Law created the Insolvency Fund as the successor to the Group Self-Insurers' Insolvency Fund (Self-Insurers' Fund). Pursuant to the Pool Law, funds from the former would be transferred to the latter on the Pool Law's enactment date. 215 ILCS 5/107a.13(a) (West 2002).

On May 4, 2001, the Commission entered an order in favor of plaintiff awarding him temporary total disability benefits and medical expenses. The findings of the Commission and its order were uncontested. The liquidation proceedings against the Earth Trust were pending at the time of the Commission's order and MCC was insolvent and could not be found. On May 10, 2001, plaintiff received a letter from the Director of Insurance (the Director), which reads in relevant part:

"This letter confirms that our Office will approve the payment from the Group Workers' Compensation Pool Insolvency Fund of the Medical and Temporary Total Disability payments which may be ordered paid on Mr. Dobry's claim by the Arbitrator.

Such an approval would be based on the current provision of 215 ILCS 5-107a.13, as well as other relevant laws, and in light our [sic] having no dispute as to your acknowledgment of amount previously paid on the subject injury."

On June 14, 2001, plaintiff began receiving payments from the Fund for all accrued monies and for medical and disability benefits. On October 26, 2001, the time for filing a proof of claim against the Earth Trust in its liquidation proceedings expired. Medical and disability payments continued from the Insolvency Fund until March 24, 2002, five months following the expiration of time to file a proof of claim against the Earth Trust, when payments to plaintiff ceased without notice. The record does not show that plaintiff was advised of the expiration date for filing a claim against the Earth Trust or instructed to file a claim against the Earth Trust in order to continue receiving benefits from the Insolvency Fund or Self-Insurers' Fund.

On May 9, 2002, the Industrial Commission's arbitrator ruled that plaintiff was permanently and totally disabled and that he was entitled to payments consistent with such a finding. The Commission further held that plaintiff's entitlement to the 1-05-1620 payments was clear and uncontested and that liability for payments rested upon the State under either section 4a of the Act or section 107a.13(b) of the Pool Law. The State did not appeal, seek clarification or modification of the ruling. The State, however, apparently made representations to the Commission that it could not pay the benefits to plaintiff because both the Self-Insurers' Fund and the Insolvency Fund were ...


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