Section 19(h) of the Illinois Workers’ Compensation Act provides that an award for compensation in installments “may at any time within 30 months … after such … award be reviewed by the Commission at the request of either the employer or the employee on the ground that the disability of the employee has subsequently recurred, increased, diminished or ended.” 820 ILCS 305/19(h) Illinois General Assembly | IWCC PDF.
In Weaver v. Illinois Workers’ Compensation Commission, 2016 IL App (4th) 150152WC Google Scholar | Illinois Courts PDF, the Appellate Court considered whether the period of time for filing a section 19(h) petition is tolled by judicial review.
This case involves a rather complicated procedural history. The Commission originally awarded the claimant permanent partial disability benefits. The Circuit Court reversed the Commission’s decision and sent the case back to the Commission rather than the Appellate Court. On remand, the Commission awarded the claimant permanent total disability benefits.
The second Commission decision was then appealed and affirmed by the Circuit Court. On appeal to the Appellate Court, however, the Commission’s original decision was reinstated.
Subsequently, the claimant filed a section 19(h) petition with the Commission to modify its original decision, arguing that his disability had increased and that the 30-month period of time for filing this petition began to run from the date of the Commission’s second decision. The Commission dismissed the claimant’s petition for lack of jurisdiction and the case was appealed to the Appellate Court.
The Appellate Court agreed with the Commission that the 30-month requirement is jurisdictional and therefore “an absolute and unconditional restriction on the right of review.” Eschbaugh v. Industrial Commission, 286 Ill. App. 3d 963 (1996) Google Scholar.
Citing Cuneo Press, Inc. v. Industrial Commission, 51 Ill. 2d 548 (1972) Google Scholar, the Appellate Court found that “[t]he 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 Appellate Court rejected the claimant’s argument that the 30-month period began to run anew from the Commission’s decision on remand because the section 19(h) petition was attempting to modify the original decision. In support, the Appellate Court quoted an Illinois Supreme Court case from 1919:
The purpose of paragraph (h) of section 19 is to give a period of time in which it may be determined whether the injuries received recurred, increased, or diminished. The processes of nature continue without regard to whether there is an appeal pending in the cause, and therefore the ground for an application for review may arise without regard to whether the cause is still pending on appeal. This period of time … extends from the time of … the award.
Big Muddy Coal & Iron Co. v. Industrial Commission, 289 Ill. 515 (1919) (copy not available).
The Appellate Court held that the claimant’s section 19(h) petition was untimely and properly dismissed for lack of jurisdiction because it was not filed within 30 months of the Commission’s original award.