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Industrial Commission Division
Filed: May 26, 2004

No. 1-03-0961WC

IN THE
APPELLATE COURT OF ILLINOIS
FIRST JUDICIAL DISTRICT
INDUSTRIAL COMMISSION DIVISION

JUSTICE HOFFMAN delivered the opinion of the court:

R.D. Masonry, Inc. (R.D.) appeals from an order of the circuitcourt confirming a decision of the Industrial Commission(Commission), awarding the claimant, Scott Hunter, benefits underthe Workers' Compensation Act (Act) (820 ILCS 305/1 et seq. (West1998)). For the reasons which follow, we reverse and remand thismatter to the Commission with directions.

The procedural history and facts pertinent to a resolution ofthis appeal are as follows.

The claimant filed an application for adjustment of claimunder the Act seeking benefits for injuries he alleged that hereceived on August 21, 1998, while in the employ of R.D. Subsequent to the filing of the claimant's application foradjustment of claim, R.D. requested that he be examined by Dr. AviBernstein pursuant to the provisions of section 12 of the Act (820ILCS 305/12 (West 1998)). That examination was conducted onDecember 14, 1998.

On March 30, 1999, following a hearing conducted pursuant tosection 19(b) of the Act (820 ILCS 305/19(b)(West 1998)), anarbitrator filed a decision, finding, inter alia, that: theclaimant sustained accidental injuries on August 21, 1998, arisingout of and in the scope of his employment with R.D.; a causalrelationship existed between the claimant's condition of ill-beingand his work-related accident; and the claimant's average weeklywage for purposes of calculating benefits under the Act was$1,077.74. The arbitrator further found that the claimant wastemporarily and totally disabled from August 31, 1998, through thedate of the hearing on March 15, 1999, and awarded the claimanttemporarily total disability (TTD) benefits for a total of 28 1/7weeks. In deciding to award the claimant TTD benefits only throughthe date of the hearing, the arbitrator specifically found Dr.Bernstein's opinions to be "non-persuasive". Finally, thearbitrator awarded the claimant the sum of $793.09 for necessarymedical expenses, but denied his request for an award of penaltiesagainst R.D.

R.D. sought a review of the arbitrator's March 30, 1999,decision before the Commission. While a review of that decisionwas pending, an adjuster representing R.D.'s insurance carrier senta letter to the claimant's attorney on May 19, 1999, requestingthat the claimant be re-examined by Dr. Bernstein on May 27, 1999. The claimant did not attend the appointment. The claimanttestified that he was not aware that any appointment had beenscheduled and denied that his attorney ever told him that anappointment had been scheduled. The claimant's attorney, however,stated on the record that he instructed the claimant not to attendthe examination. On May 28, 1999, the adjuster sent a secondletter to the claimant's attorney offering to reschedule theclaimant's appointment with Dr. Bernstein. On June 3, 1999, theclaimant's attorney directed a letter to the adjuster stating thatthe claimant would not attend any examination until R.D. paid thebenefits awarded by the arbitrator in her March 30, 1999, decision.

On June 24, 1999, the Commission issued a decision modifyingthe arbitrator's calculation of the claimant's average weekly wageto $1,020.35. In all other respects, however, the Commissionaffirmed and adopted the arbitrator's decision.

R.D. filed an action for judicial review of the Commission'sdecision of June 24, 1999, in the circuit court of Cook County. The circuit court determined that the claimant's average weeklywage was $1,047.50, and recalculated the weekly TTD benefits towhich he was entitled. The circuit court confirmed theCommission's decision in all other respects. R.D. appealed and, onDecember 21, 2000, this court affirmed the judgment of the circuitcourt. R.D. Masonry, Inc. v. Industrial Comm'n, No. 1-00-0614WC(2000) (unpublished order under Supreme Court Rule 23) (hereinafterreferred to as "R.D. Masonry I").

In January 2001, after this court issued its decision in R.D.Masonry I, R.D. paid the first section 19(b) award with interest inthe sum of $23,423.82. At that same time, R.D. also paid theclaimant additional TTD benefits in the sum of $7,282.58 for theperiod from March 16, 1999, through May 27, 1999. However, R.D.declined to pay the claimant any TTD benefits for the periodsubsequent to May 27, 1999, by reason of his having refused tosubmit to the medical examination scheduled for that date.

On remand, the matter came before an arbitrator for a secondsection 19(b) hearing. Subsequent to that hearing, on June 29,2001, the arbitrator issued a decision, finding that the claimantwas entitled to an award of additional TTD benefits for the periodfrom March 16, 1999, through May 27, 1999. However, by reason ofthe claimant's failure to attend a section 12 medical examination(see 820 ILCS 305/12 (West 1998)) scheduled by R.D. for May 27,1999, the arbitrator found that the claimant was not entitled toany benefits for the period subsequent to that date. Thearbitrator also awarded the claimant an additional $237.65 formedical expenses, but again denied his request for penalties.

The claimant sought a review of the arbitrator's June 29,2001, decision before the Commission. On March 5, 2002, theCommission, with one commissioner dissenting, issued a decisionmodifying the arbitrator's decision and awarding the claimant TTDbenefits for the period of March 16, 1999, through February 1,2001, the date the claimant was released to return to work. In itsdecision, the Commission, relying upon this court's decision inFencl-Tufo Chevrolet, Inc. v. Industrial Comm'n, 169 Ill. App. 3d510, 523 N.E.2d 926 (1988), held that the claimant was not requiredto attend the medical examination scheduled by R.D. for May 27,1999, and, as a consequence, his benefits were not subject tosuspension under section 12 of the Act. The Commission rested itsdecision in this regard upon the fact that R.D. was contesting theclaimant's right to receive benefits under the Act, and had notpaid him any such benefits at the time it requested the examinationon May 27, 1999. Although the Commission held that the claimantwas not required to attend the scheduled medical examination, itspecifically found that, because the claimant's need for furthertreatment and his work status as of May 1999 were not known, R.D.'sdemand for a second medical examination of the claimant was for aproper purpose and not for the purpose of harassing him. Finally,the Commission denied the claimant's petition for an award ofpenalties.

R.D. sought a judicial review of the Commission's March 5,2002, decision in the circuit court of Cook County. The circuitcourt confirmed the Commission's decision, and this appealfollowed.

R.D. argues on appeal that the Commission's determination thatthe claimant was not required to attend the medical examinationthat it scheduled for May 27, 1999, is contrary to law and that theCommission erred in awarding the claimant TTD benefits for theperiod subsequent to that date. R.D. requests that we reverse thejudgment of the circuit court and hold that the claimant's conductin refusing to attend the scheduled examination was in violation ofsection 12 of the Act, resulting in a suspension of his right toreceive benefits after May 27, 1999.

Section 12 of the Act governs medical examinations andprovides in relevant part as follows:

"An employee entitled to receive disability paymentsshall be required, if requested by the employer, tosubmit himself, at the expense of the employer, forexamination to a duly qualified medical practitioner orsurgeon selected by the employer, at any time and placereasonably convenient for the employee, either within orwithout the State of Illinois, for the purpose ofdetermining the nature, extent and probable duration ofthe injury received by the employee, and for the purposeof ascertaining the amount of compensation which may bedue the employee from time to time for disabilityaccording to the provisions of this Act. ***

***

If the employee refuses so to submit himself toexamination or unnecessarily obstructs the same, hisright to compensation payments shall be temporarilysuspended until such examination shall have taken place,and no compensation shall be payable under this Act forsuch period." 820 ILCS 305/12 (West 1998).

In this case, the Commission concluded that the claimant wasnot required to submit to the medical examination scheduled by R.D.for May 27, 1999. According to the Commission, at the time thatR.D. requested the examination, it had not agreed to pay benefitsto the claimant, was appealing the arbitrator's finding as toliability and was withholding the payment of TTD benefits pendingthe outcome of that appeal and, as a consequence, the claimant "didnot know whether he was 'entitled to receive benefits'." TheCommission seems to imply that, before a claimant is required tosubmit to a section 12 examination, he must know that he isentitled to receive benefits. However, we find no authority forsuch a conclusion either in the language of section 12 or anyreported case.

Section 12 of the Act requires an employee "entitled toreceive disability payments" to submit, at his employer's request,to a physical examination. As our supreme court held in JacksonCoal Co. v. Industrial Comm'n, 295 Ill. 18, 20-21, 128 N.E. 813(1920):

"It is not restricted to cases where the employeracknowledges his liability and makes compensationpayments. It applies to all cases where the employe[e]is entitled to receive disability payments, and whetherhe is entitled to them is not dependent on whether theemployer acknowledges liability by making payments."

See also Paradise Coal Co. v. Industrial Comm'n, 301 Ill. 504, 507,134 N.E. 167 (1922).

The Commission's reliance upon this court's holding in Fencl-Tufo Chevrolet, Inc. is misplaced because that case is readilydistinguishable on its facts. Fencl-Tufo Chevrolet, Inc. (Fencl-Tufo), the employer, unilaterally suspended the claimant's TTDbenefits after it received a report from an investigator that shehad observed the claimant playing golf. Despite the suspension ofbenefits, the claimant submitted to a section 12 examination by Dr.Grin, a physician selected by Fencl-Tufo. Dr. Grin admitted theclaimant to a hospital for three days for a lumbar myelogram, theresults of which were inconclusive. Upon discharge, the claimantwas advised not to return to work and to contact Dr. Grin in one totwo weeks. When the claimant called as instructed, he was told torecontact Dr. Grin in six months for a follow-up appointment. Within three months thereafter, however, Fencl-Tufo requested thatthe claimant be examined by a different physician, Dr. Dupre. Atthat time, Fencl-Tufo was still not paying the claimant any TTDbenefits. The claimant failed to attend the examination scheduledwith Dr. Dupre. Fencl-Tufo Chevrolet, Inc., 169 Ill. App. 3d at516. In affirming the judgment of the circuit court whichconfirmed the Commission's award of benefits to the claimantdespite his having failed to submit to an examination by Dr. Dupre,we held:

"Claimant argues that under the circumstances therewas little to gain from attending Dr. Dupre'sexamination. We thoroughly agree. It is apparent to usthat respondent [Fencl-Tufo] was proceeding in a mannerthat did not warrant compliance [with section 12 of theAct]. Accordingly, we find that when, as here, anemployer has arbitrarily suspended payments, and [theemployee] has already complied with one requestedexamination, the claimant's failure to attend a furtherexamination does not violate section 12." Fencl-TufoChevrolet, Inc., 169 Ill. App. 3d at 516.

In this case, unlike the facts in Fencl-Tufo Chevrolet, Inc.,R.D. had not "arbitrarily" suspended the payment of any benefits tothe claimant. It is true that R.D. was not making TTD payments tothe claimant at the time that it requested the second section 12examination, which the claimant refused to attend, and did not makeany such payments until after this court had affirmed the circuitcourt's judgment, confirming the Commission's determination that hewas entitled to TTD benefits. However, the Commission twice deniedthe claimant's request for an award of penalties by reason ofR.D.'s failure to make voluntary payments. Nothing in this recordwould support a finding that R.D. was acting arbitrarily.

Additionally, in this case, the Commission specifically foundthat R.D. requested the second examination for a proper purpose;namely, to determine the claimant's need for further treatment andhis work status. Whereas, in Fencl-Tufo Chevrolet, Inc., we foundthat there would have been little to gain by the claimant attendingDr. Dupre's examination. We are mindful that the circuit court inthis case found that neither party "had anything to gain from a re-examination" of the claimant. However, whether or not a secondexamination would have been for a proper purpose is a factualquestion to be determined by the Commission, not the circuit court. See O'Dette v. Industrial Comm'n, 79 Ill. 2d 249, 253, 403 N.E.2d221 (1980) (It is the function of the Commission to decidequestions of fact and its findings will not be disturbed on appealunless against the manifest weight of the evidence). We do notfind that the Commission's determination in this regard is againstthe manifest weight of the evidence as the claimant had clearly notreached maximum medical improvement at the point in time when R.D.requested the second examination and he was still receiving medicaltreatment.

At the time R.D. requested that the claimant be examined onMay 27, 1999, he was an "employee entitled to receive disabilitypayments" within the meaning of section 12 of the Act. Further, asthe Commission found, R.D.'s request for a second examination wasfor a proper purpose and not done to harass the claimant. See Kingv. Industrial Comm'n, 189 Ill. 2d 167, 176, 724 N.E.2d 896 (2000). Nevertheless, the claimant argues that he was still not required toattend the examination as R.D.'s request was not accompanied by anadvance of travel expenses and the examination was not scheduledfor a convenient time as he was still undergoing physical therapy. See Navistar International Transportation Corp. v. IndustrialComm'n, 331 Ill. App. 3d 405, 412, 771 N.E.2d 35 (2002). However,as R.D. points out, the claimant never made such arguments beforethe Commission or the circuit court and there exists no factualsupport for these assertions in the record before us. Consequently, the claimant cannot now rely on the arguments tojustify his failure to attend the scheduled examination asarguments not made before the Commission or the circuit court arewaived for purposes of appeal. Anders v. Industrial Comm'n, 332Ill. App. 3d 501, 509, 773 N.E.2d 746 (2002).

Having determined that the claimant was an "employee entitledto receive disability payments" within the meaning of section 12 ofthe Act at the time of R.D.'s request that he be examined on May27, 1999, and that he had no valid reason to refuse to comply withthe request, we hold that the Commission erred, as a matter of law,in awarding the claimant benefits for the period from May 28, 1999,through February 1, 2001. When, as in this case, an employeerefuses to submit to a request for a medical examination madepursuant to section 12 of the Act, his "right to compensationpayments shall be temporarily suspended until such examinationshall have taken place, and no compensation shall be payable under[the] Act for such period." 820 ILCS 305/12 (West 1998).

For the foregoing reasons, we reverse the judgment of thecircuit court confirming the Commission's decision and remand thismatter to the Commission with directions that it issue a decisionin compliance with the views expressed herein and reinstate thearbitrator's decision limiting the claimant to TTD benefits for theperiod from March 16, 1999, through May 27, 1999.

Reversed and remanded to the Industrial Commission withdirections.

McCULLOUGH, P.J., and CALLUM and HOLDRIDGE, JJ., concur.

I respectfully dissent.

The Commission was correct in its decision based on Fencl-TufoChevrolet, Inc., and the attempt of the majority to distinguishFencl-Tufo Chevrolet, Inc., rests on distinctions without adifference. It is clear in the evidence that R.D. was contestingthe claimant's right to receive benefits and had not paid claimantbenefits at the time of the requested second examination. As inFencl-Tufo Chevrolet, Inc., at the time of the scheduled secondexamination, the employer was not paying benefits. The core of theFencl-Tufo Chevrolet, Inc., decision is stated in the following twoparagraphs:

"In October 1985, respondent requested that claimantbe examined by Dr. James Dupre. At this time, respondentstill was not paying him temporary total disability. Claimant failed to attend an examination set for October28, 1985.

Claimant argues that under these circumstances therewas little to gain from attending Dr. Dupre'sexamination. We thoroughly agree. It is apparent to usthat respondent was proceeding in a manner that did notwarrant compliance. Accordingly, we find that when, ashere, an employer has arbitrarily suspended payments, anda claimant has already complied with one requestedexamination, the claimant's failure to attend a furtherexamination does not violate section 12. (Emphasisadded.) Fencl-Tufo Chevrolet, Inc., 169 Ill. App. 3d at516, 523 N.E.2d at 931.

This conclusion, so succinctly stated in Fencl-Tufo Chevrolet,Inc., applies equally to the instant case.

The requirement to attend an examination rests upon the statusof an "employee entitled to receive disability payments." Both inFencl-Tufo Chevrolet, Inc., and the instant case, that entitlementwas at issue at the time of the proposed second examination,vigorously contested by the employer, and not, in fact, beingpaid. The point made by the majority resting on the Commission'sfinding that failure of the employer in the instant case to paybenefits was not for the purpose of harassment is not relevant tosection 12 as it reads into section 12 a requirement for refusingsecond examinations that is not present in the statute. TheCommission and this court have seen multiple instances in which theentitlement to benefits has been legitimately at issue and notwithheld for purposes of harassment or other improper purposes. The determination of the Commission that the request was made fora proper purpose and the denial by the Commission of an award ofpenalties are legitimate issues, but not related to a determinationof the appropriateness of claimant to refuse a second examinationunder section 12. They are, as stated previously, distinctionswithout a difference. The majority further presupposes thatclaimant was an employee entitled to receive disability paymentsunder section 12, when that very status was at issue and saidpayments had been refused. In effect, we would be assuming theexistence of a status which was actually at issue and not resolved,either by finding of an arbitrator, the Commission, or a circuitcourt, or by agreement of the parties reading the plain language ofsection 12 and our decision in Fencl-Tufo Chevrolet, Inc. This isnot a sufficient basis upon which to suspend payment of benefits.

For the reasons stated above, I would affirm the order of thecircuit court confirming the Commission's decision.