NO. 1-97-2625WC

IN THE APPELLATE COURT OF ILLINOIS

FIRST DISTRICT

Industrial Commission Division

PRESIDING JUSTICE McCULLOUGH delivered the opinion of the court:

Claimant Joe W. King appeals from an order of the circuit court of Cook County confirming thedecision 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 ofthe Workers' Compensation Act (Act) (820 ILCS 305/12 (West 1996)) may be applied so as torequire 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 petitionpursuant 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 forrehearing, claimant filed a response, and Illinois Self-Insurers was allowed to file an amicusbrief. We now grant the petition for rehearing, withdraw our opinion filed April 21, 1998, and bythis opinion, affirm the circuit court of Cook County.

On April 14, 1987, claimant filed an application for adjustment of claim alleging injuries to hisright shoulder while picking up boards on July 13, 1986. On April 25, 1991, the arbitratorawarded claimant $240 per week for 154 2/7 weeks as temporary total disability and $240 perweek for life for PTD. Ill. Rev. Stat. 1991, ch. 48, pars. 138.8(b), 138.8(f). The Commissionaffirmed 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 beemployed 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 hefailed to attend a medical examination. At the hearing on the motion to suspend compensationconducted before Commissioner Richard Gilgas on June 18, 1996, respondent submitted a copyof 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 ofclaimant by Dr. George Cooper was scheduled for 11:30 a.m. on November 7, 1995. The doctor'saddress and telephone number were provided in the letter, and a $20 check to defray claimant'scosts 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 beseen by Cooper. Claimant did not show for the appointment, and respondent did not have noticefrom claimant's attorney offering a reason for the cancellation. Braun asked Gaines to call thedoctor's office and arrange for an appointment convenient to claimant.

Braun indicated to the Commissioner that he attempted to contact Gaines by telephone onDecember 5, 1995, and April 13, 1996. Gaines advised Braun that he felt claimant was notrequired to comply.

Gaines acknowledged receiving correspondence from respondent with regard to claimantsubmitting 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 andtelephone was provided, and a $15 check for transportation expense was enclosed. There wasanother letter from Braun to Gaines, dated December 13, 1995, stating the Act permitted periodicexamination, 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 submithimself to an "independent" medical examination pursuant to section 12 of the Act (820 ILCS305/12 (West 1996)).

Respondent has not appealed or cross-appealed the decision of the Commission to denysuspension 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 suspendcompensation will not be considered. Lagen v. Balcor Co., 274 Ill. App. 3d 11, 14, 653 N.E.2d968, 970 (1995).

Section 8(f) provides, in relevant part:

"(f) In case of complete disability, which renders the employee wholly and permanentlyincapable of work, or in the specific case of total and permanent disability as provided insubparagraph 18 of paragraph (e) of this Section, compensation shall be payable at the rateprovided 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 toreceive from the Rate Adjustment Fund provided in paragraph (f) of Section 7 of thesupplementary benefits provided in paragraph (g) of this Section 8.

If any employee who receives an award under this paragraph afterwards returns to work oris able to do so, and earns or is able to earn as much as before the accident, payments undersuch award shall cease. If such employee returns to work, or is able to do so, and earns or isable to earn part but not as much as before the accident, such award shall be modified so asto conform to an award under paragraph (d) of this Section. If such award is terminated orreduced under the provisions of this paragraph, such employees have the right at any timewithin 30 months after the date of such termination or reduction to file petition with theCommission for the purpose of determining whether any disability exists as a result of theoriginal accidental injury and the extent thereof." 820 ILCS 305/8(f) (West 1996).

Section 12 provides, in relevant part:

"An employee entitled to receive disability payments shall be required, if requested by theemployer, to submit himself, at the expense of the employer, for examination to a dulyqualified medical practitioner or surgeon selected by the employer, at any time and placereasonably convenient for the employee, either within or without the State of Illinois, forthe purpose of determining the nature, extent and probable duration of the injury receivedby the employee, and for the purpose of ascertaining the amount of compensation whichmay be due the employee from time to time for disability according to the provisions ofthis Act. An employee may also be required to submit himself for examination by medicalexperts under subsection (c) of Section 19.

* * *

If the employee refuses so to submit himself to examination or unnecessarily obstructs thesame, his right to compensation payments shall be temporarily suspended until suchexamination shall have taken place, and no compensation shall be payable under this Actfor such period." 820 ILCS 305/12 (West 1996).

Statutory construction is a question of law. Branson v. Department of Revenue, 168 Ill. 2d 247,254, 659 N.E.2d 961, 965 (1995). In cases involving the interpretation of a statute by an agencycharged with administering it, the agency's interpretation is afforded considerable deference, butit is not binding on the court, and will be rejected if erroneous. Denton v. Civil ServiceCommission, 176 Ill. 2d 144, 148, 679 N.E.2d 1234, 1236 (1997). This court considers thequestion de novo. Branson, 168 Ill. 2d at 254, 659 N.E.2d at 965.

"The primary goal of statutory interpretation is to ascertain and give effect to the intent of thelegislature, which is best evidenced by the clear and unambiguous language of the statute. Kraft,Inc. v. Edgar, 138 Ill. 2d 178, 189, 561 N.E.2d 656, 661 (1990). All portions of the Act must beread as a whole and in such a manner as to give them the practical and liberal interpretationintended by the legislature. Vaught v. Industrial Comm'n, 52 Ill. 2d 158, 165, 287 N.E.2d 701,705 (1972). The purpose of the Act is to provide employees with a prompt, sure remedy for theirinjuries and to require that the cost of industrial accidents be borne by the industry rather than byits individual members. Lester v. Industrial Comm'n, 256 Ill. App. 3d 520, 523, 628 N.E.2d 191,193 (1993)." Modern Drop Forge Corp. v. Industrial Comm'n, 284 Ill. App. 3d 259, 264, 671N.E.2d 753, 756 (1996).

The words of a statute are given their plain and commonly understood meanings. Forest CityErectors v. Industrial Comm'n, 264 Ill. App. 3d 436, 439, 636 N.E.2d 969, 972 (1994). Onlywhen the meaning of the enactment is unclear from the statutory language will the court lookbeyond the language and resort to aids for construction. Solich v. George & Anna Portes CancerPrevention Center of Chicago, Inc., 158 Ill. 2d 76, 81, 630 N.E.2d 820, 822 (1994); County of St.Clair v. Industrial Comm'n, 380 Ill. 376, 379, 44 N.E.2d 30, 31 (1942).

Respondent has cited no cases and this court has not found any cases in which section 12 hasbeen applied to allow a respondent to require an examination after the final decision of an awardhas been made by the Commission. A request for claimant to submit to an examination may bemade prior to or at the time of the hearing before the arbitrator (See, e.g., Hafer Washed Coal Co.v. Industrial Comm'n, 293 Ill. 425, 428-29, 127 N.E. 752, 753 (1920); Fencl-Tufo Chevrolet, Inc.v. Industrial Comm'n, 169 Ill. App. 3d 510, 515-16, 523 N.E.2d 926, 930-31 (1988)) or, when theCommission was allowed to hear additional evidence, after the arbitrator's award, but beforereview by the Commission (Jackson Coal Co. v. Industrial Comm'n, 295 Ill. 18, 18-21, 128 N.E.813, 813-14 (1920); Fuller v. Industrial Comm'n, 86 Ill. 2d 131, 133-34, 427 N.E.2d 68, 68-69(1981)). In Paradise Coal Co. v. Industrial Comm'n, 301 Ill. 504, 507, 134 N.E. 167, 168 (1922),the Supreme Court of Illinois stated that an employer may request the claimant to submit to aphysical examination before claimant's entitlement to compensation had been determined by thearbitrator.

The right of the respondent to request an examination under section 12 is independent of anycurrent employer and employee relationship. Skelgas Co. v. Industrial Comm'n, 400 Ill. 322,328-29, 79 N.E.2d 501, 504 (1948). The failure to comply with a request to submit toemployer-provided medical treatment does not result in termination of the employmentrelationship, but "in the suspension or reduction of an award of compensation benefits." Lee v.Industrial Comm'n, 167 Ill. 2d 77, 85, 656 N.E.2d 1084, 1088 (1995) (citing section 12 of theAct).

Claimant argues that the order that claimant submit to a physical examination is not authorizedby section 12 of the Act because section 12 specifically refers to section 19(c) of the Act, whichallows for an impartial physical or mental examination by a physician chosen by the Commissionin advance of and in connection with hearings under sections 19(e) (any hearing before theCommission) or 19(h) (hearing to re-establish, increase, diminish, or terminate compensationpayments) of the Act. The record does not disclose that any proceedings, other than the motionwhich is the subject of this appeal, have yet been initiated by respondent. Claimant also notes thatsection 12 refers to the purpose of the examination being to determine the nature, extent, andprobable duration of the injury. However, section 12 also states the purpose of such a medicalexamination may be "for the purpose of ascertaining the amount of compensation which may bedue the employee from time to time for disability according to the provisions of this Act" (820ILCS 305/12 (West 1996)). In addition, section 8(f) provides a method whereby the Commissionmay discontinue PTD payments if the employee is shown to be able to return to work, even if hehas not done so. The question of whether a section 12 examination is appropriate as a vehiclethrough which a determination could be made regarding whether claimant is able to return towork pursuant to section 8(f) is not before this court. The respondent's letters to the claimantthrough his attorney merely made a section 12 appointment for examination. No otherproceedings were pending before the Commission.

Although section 12 does not expressly limit the respondent's right to request an examination"prior to a determination of an award," claimant argues this condition would seem to be implicitin the phrase "determining the nature, extent and probable duration of the injury received by theemployee." But section 12, as to the examination, also provides "for the purpose of ascertainingthe amount of compensation which may be due the employee from time to time for disabilityaccording to the provisions of this Act." Although we previously determined that under the factsof this case respondent could not invoke section 12 of the Act, upon further review of the petitionfor rehearing, the claimant's response, and the amicus brief, we affirm the judgment of the circuitcourt and the decision of the Commission.

Here, the respondent did not unilaterally terminate benefits because of claimant's refusal tosubmit to a section 12 examination. It properly filed a petition to terminate benefits andcontinued to pay claimant's award.

In further consideration of possible harassment in similar cases, as well as potential costs andfees, the requirement of an 8(f) petition to be filed prior to a section 12 request would subjectclaimants, as well as respondents, to costs and attorney fees. To deny the section 12 examinationin the context of an 8(f) award as happened here, would also increase unnecessarily theCommission caseload.

Additionally, requiring an 8(f) or 19(h) petition to be filed first may very well subject arespondent to sanctions if the examination results are not favorable to its position. Claimant is notleft without recourse if respondent's request is found to be vexatious or unreasonable. Theclaimant has the protections of the Act. The Amicus suggests sections 4(c) and 4(h) of the Act(820 ILCS 305/4(c), (h) (West 1996)) provide protection to claimant. Sections 16 and 19(k) ofthe Act apply where the respondent "has been guilty of delay or unfairness towards an employee"(820 ILCS 305/16 (West 1996)) or where "proceedings have been instituted or carried on by theone liable to pay the compensation, which do not present a real controversy but are merelyfrivolous or for delay" (820 ILCS 305/19(k) (West 1996)). We need not and do not by thisdecision decide the application of these sections in such circumstances.

In affirming the circuit court and Commission, we have considered the sage saying, "If it ain'tbroke, don't fix it."

For the foregoing reasons, the judgment of the circuit court of Cook County and the decision ofthe Commission are affirmed.

Affirmed.

RAKOWSKI and HOLDRIDGE, JJ., concur.

RARICK, J., dissenting:

In its November 13, 1991, decision, the Commission affirmed and adopted the decision of thearbitrator, specifically finding that King had established that he fell into the "odd-lot" categoryand was permanently and totally disabled. The Commission found that King was a 59-year-oldunskilled laborer with a third-grade education. (He is now sixty-six years old.) His rehabilitationreport stated that he was functionally illiterate and had made a diligent but unsuccessful jobsearch. The Commission also noted that King's attempt at vocational rehabilitation wasunsuccessful and that King's employer, R.R. Donnelly, failed to demonstrate the availability of areasonably stable job market for a person in King's circumstances.

Given the facts of this case, I believe that having King to submit to a medical exam would serveno meaningful purpose, and that the Commission abused its discretion in so ordering. Permanentand total disability under the odd-lot doctrine is not simply a matter of physical impairment, butrather depends on the relationship between the claimant's physical impairment and his age,education, training, and work experience. A finding of permanent and total disability under theodd-lot doctrine is a determination that because of the relationship between these factors, theclaimant is essentially unemployable. A showing of a change in physical condition would not bemeaningful absent a showing of how this change impacts, and is impacted by, the other factors. Iwould hold that to be entitled to require the employee to submit to a section 12 medical exam, theemployer must make some minimal showing that there is reason to believe that the employee'sphysical condition has changed, and that this change, in relation to the other factors, renders theemployee employable. In the present case, all of the other factors militated very strongly in favorof permanent and total disability, and there is no indication that any of them have changed. Theemployer has made no showing that there is reason to believe that King's physical condition hasimproved, nor is there any showing that the alleged improved condition, in light of the otherfactors, is such that work would now be available to a person in his circumstances.

For the foregoing reasons, I dissent.

COLWELL, J., joins this dissent.