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JUSTICE McCULLOUGH delivered the opinion of the court:

Respondent employer, D. Mayer Landscaping, Inc., appealsfrom an order of the circuit court of Cook County entered February27, 2001, confirming a decision of the Illinois IndustrialCommission (Commission) entered on December 19, 2000, following anearlier remand by the circuit court. The claimant in this case isBarbara Mayer, widow of Donald Mayer, deceased.

On July 17, 1998, the arbitrator's original decisionfound that Donald Mayer was an excluded officer under the Workers'Compensation Act (Act) (820 ILCS 305/1 et seq. (West 1998)) andthat claimant was not entitled to benefits as a result of theaccidental injury to decedent. On March 17, 1999, the Commissionaffirmed and adopted the arbitrator's original decision. Claimantsought judicial review, and the case was docketed as Cook Countycase No. 99-L-50266. On October 1, 1999, the circuit courtaffirmed in part, reversed in part, and remanded to the Commissionfor further proceedings. The remand was "with instructions toenter an award consistent with this memorandum decision, judgmentand order and to conduct further proceedings in respect to all theissues."

On remand, the arbitrator awarded claimant $1,242 formedical bills; $4,200 for burial expenses; and $741.45 per week for364 weeks, until the sum of $250,000 has been paid or the period of20 years has passed, whichever is greater. 820 ILCS 305/8(a),7(f), 7(a) (West 1998). On December 19, 2000, the Commissionaffirmed and adopted the arbitrator's award made following remand. Respondent's judicial review was docketed in the circuit court asCook County case No. 00-L-50021, and it was consolidated with caseNo. 99-L-50266. The circuit court affirmed the Commission decisionon remand.

The issues on appeal are whether the first Commissiondecision was correct, whether (1) decedent's election to excludehimself from coverage under the Workers' Compensation Insurancepolicy barred recovery of benefits under the Act and (2) claimanthas an independent right to recover benefits under the Act. Wevacate the order of the circuit court in Cook County case No. 00-L-50021 as well as the Commission decision and arbitrator's awardentered following the original order of remand by the circuitcourt; affirm in part and reverse in part the circuit court's orderof remand in Cook County case No. 99-L-50266; and reinstate theCommission's original March 17, 1999, decision.

The underlying facts are undisputed, although on appealthe claimant has challenged the credibility of one of the witnesses.

Decedent started his landscaping business in 1981 and,after retiring from Ameritech in August 1989, operated thelandscaping business on a full-time basis. Decedent was thepresident of the respondent corporation. Claimant, decedent'sspouse and respondent's secretary-treasurer, paid all the bills,issued checks, and maintained all the insurance policies.

On July 31, 1995, while operating a lawnmower on a hill,decedent was killed when the lawnmower tipped over and crushed him. When claimant sought workers' compensation benefits, her claim wasdenied because decedent was an excluded corporate officer undersection 3(17)(b) of the Act (820 ILCS 305/3(17)(b) (West 1994)).

Frank Sedlacek, an independent insurance agent who placedinsurance with several different companies, testified that in 1994he met with decedent and agreed to obtain quotes for various typesof insurance, including workers' compensation. In February 1994,he discussed this with claimant and decedent. Decedent toldSedlacek that he wanted to be excluded from the workers' compensation policy. The premium was significantly less with decedentexcluded. At that time, Sedlacek was unable to place respondent'sworkers' compensation with American States Insurance in 1994,because respondent had no prior workers' compensation policy. Sedlacek applied for workers' compensation insurance coverage forrespondent through the National Council on Compensation Insuranceso that the policy would be assigned to a carrier through aworkers' compensation pool. The application, drafted by Sedlacekand signed by decedent, requested exclusion of decedent under thepolicy. National American Insurance Company issued policy No.AR320212C to respondent covering March 12, 1994, through March 12,1995. That policy excluded decedent from coverage. Claimant knewdecedent was excluded from coverage because, in response to anaudit letter, claimant issued a response stating that decedent wasexcluded from coverage. Sedlacek discussed with decedent anydesired changes in the policy prior to renewal. Decedent informedSedlacek that he did not want to be added to the workers' compensation policy. Sedlacek submitted an application to American StatesInsurance requesting the same coverage that respondent had underits prior policy and again requesting that the decedent be excludedas an officer under the policy. American States Insurance issuedworkers' compensation policy No. 01 WC-747878. It covered theperiod of March 10, 1995, through March 10, 1996. A copy of thatpolicy was delivered to claimant and decedent. The certificate ofinsurance showed the officer exclusion. An audit response datedApril 16, 1996, confirmed that decedent was excluded and his wageswere not included in the premium calculation.

The Commission denied benefits. In the initial judicialreview proceeding, the circuit court confirmed the Commission'sdecision that there was sufficient written notice of the corporateofficer's election to withdraw from coverage and a signed waiverfor each excluded officer was not required by section 3 of the Act(820 ILCS 305/3 (West 1998)). However, the circuit court reversedand remanded on the basis that (1) decedent was working in a dualcapacity, officer and employee, and that the election ofnoncoverage by an officer did not prevent coverage as an employeeand (2) claimant had a claim for death benefits separate and apartfrom any claim decedent may have had for his injuries. On remand,the arbitrator and Commission applied these legal principles andawarded benefits.

We first consider whether decedent's election to excludehimself from coverage under the Workers' Compensation Insurancepolicy barred recovery of benefits under the Act. Althoughclaimant's argument attacks the credibility of Sedlacek, none ofthe facts or circumstances presented as evidence contradicts thetestimony of Sedlacek. Nor did the Commission find Sedlacek not acredible witness. Therefore, the credibility of witnesses is nota material issue in determining the questions posed on appeal. Theissues on appeal involve review of determinations of questions oflaw that this court considers de novo. Lucas v. Latkin, 175 Ill.2d 166, 171, 676 N.E.2d 637, 640 (1997) (construction of a statuteis a question of law to be reviewed de novo); Sorenson v. Industrial Comm'n, 281 Ill. App. 3d 373, 381, 666 N.E.2d 713, 718 (1996)(if the evidence is undisputed, a question of law exists and thereviewing court need not defer to the Commission's determination ofa question of law). In this case, this court's focus is on whetherthe original decision of the circuit court correctly found that theoriginal March 17, 1999, decision of the Commission was contrary tolaw. See Freeman United Coal Mining Co. v. Industrial Comm'n, 188Ill. 2d 243, 248, 720 N.E.2d 1063, 1066 (1999).

Section 3 of the Act relates to coverage of the Act toemployees of enterprises or businesses that involve extra hazardousactivities. 820 ILCS 305/3 (West 1998). At the times relevant tothis case, section 3(17)(b) of the Act provided as follows:

"The corporate officers of any businessor enterprise defined as a 'small business'under paragraph (b), Section 3 of the IllinoisSmall Business Purchasing Act, as amended, andemployed by the corporation may elect towithdraw themselves as individuals from theoperation of this Act. Upon an election bythe corporate officers to withdraw, writtennotice shall be provided to the insurancecarrier of such election to withdraw, whichelection shall be effective upon receipt bythe insurance carrier of such written notice. A corporate officer who thereafter elects toresume coverage under the Act as an individualshall provide written notice of such electionto the insurance carrier which election shallbe effective upon receipt by the insurancecarrier of such written notice. For thepurpose of this paragraph, a 'corporate officer' is defined as a bona fide President, VicePresident, Secretary or Treasurer of a corporation who voluntarily elects to withdraw." 820 ILCS 305/3(17)(b) (West 1998).

The parties do not dispute the application of this subsection tothis case.

Respondent raises three contentions. First, respondentargues that the circuit court improperly relied on cases recognizing the dual capacity doctrine because in this case decedent'swages were excluded from the calculation of insurance premiums.

Illinois courts have recognized the dual capacitydoctrine.

"In Stevens v. Industrial Com., 346 Ill. 495,the court adopted the so-called dual capacitydoctrine followed by a majority of the States. Under such doctrine an officer, director orstockholder will not be denied compensationmerely because he is an officer, director orstockholder, if, as a matter of fact, at thetime of his injury he is engaged in manuallabor or the ordinary duties of a workman andreceives pay in the capacity of an employee,or if he was engaged in employment palpablyseparate and distinct from the official dutiesfalling upon him as an officer of the corporation. 99 C.J.S., Workmen's Compensation, sec.82, pp. 302-304." B.W. Sales Co. v. Industrial Comm'n, 35 Ill. 2d 418, 420, 220 N.E.2d405, 406 (1966).

In A. Larson, The Law of Workmen's Compensation, Larson'sbasic premise is that, under modern law, corporate officers are notbarred from receiving workers' compensation benefits. 1C A.Larson, The Law of Workmen's Compensation,