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Recent Appellate Court Decisions
In Weaver v. IWCC, 4-15-0152 WC (4th Dist. 2016), the petitioner suffered an accident and received a decision from the IWCC for 50% man as a whole. The IWCC’s decision was entered on February 23, 2010. The circuit court determined the Commission’s decision was against the manifest weight of the evidence.
The Workers’ Compensation Commission Division of the Illinois Appellate Court found that the IWCC’s first decision was not against the manifest weight of the evidence and vacated the circuit court’s June 11, 2012 decision. The Commission’s second remanded decision was set aside and the Commission’s original February 23, 2010 decision was reinstated.
On November 6, 2013, the Petitioner filed a review of the IWCC’s decision under Sections 19(h) and 8(a) of the Act. The employer argued that the Section 19(h) petition was untimely because it was filed more than 30 months after the entry of the IWCC’s original decision.
The Commission held that the 30 month period was not tolled by judicial review and that the appellate court had vacated the IWCC’s June 30, 2011 decision. The circuit court confirmed the IWCC’s dismissal of petitioner’s 19(h) petition.
The appellate court affirmed the dismissal of the 19(h) petition. Section 19(h) allows the award to be reviewed by either the employer or the employee within 30 months. The 19(h) petition argues that the disability of the employee has subsequently recurred, increased, diminished or ended. The court noted that the 30 month period in Section 19(h) is a jurisdictional requirement. The IWCC is divested of its jurisdiction for a change of disability 30 months after the award of compensation. The 30 month period for filing a Section 19(h) petition runs from the date of filing of the Commission’s decision and judicial review of the Commission’s decision does not toll the 30 month period.
The original decision was entered on February 23, 2010. The claimant wanted to modify this original decision. The 30 month period for filing a Section (h) petition began running on February 23, 2010. The 30 month period was not tolled by judicial review. The claimant’s Section 19(h) petition which was filed on February 6, 2013 was untimely.
The petitioner argued that his Section 19(h) petition was filed within 30 months of the second remanded order from the IWCC of June 30, 2011. The appellate court noted that the second remanded order of June 30, 2011 had already been vacated. The February 23, 2010 decision had been reinstated. The petitioner is seeking to modify the February 23, 2010 award. There was no June 30, 2011 award to modify. The 30 month limitation of Section 19(h) is not tolled by reason of judicial review of the award.
Editor’s Note: The court cited an Illinois Supreme Court decision from 1919 which is still good law. Prior decisions also held that the 30 month deadline for a Section 19(h) petition is not modified by an appeal. Adjusters and practitioners should note that section 19(h) also allows the award to be reviewed by the employer.