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Appealing A Comp Decision Does Not Extend the §19(h) Review Window

Weaver v. Illinois Workers’ Compensation Commission (Decatur Overhead Door)

By: Conor P. Desmond - Associate - Nyhan, Bambrick, Kinzie & Lowry

Synopsis: Petitions for review under Section 19(h) must be filed within 30 months of the original decision issued by the Commission. The limitations period will not be tolled by judicial review unless the court enters an order quashing original award.


Facts: The Arbitrator awarded Permanent Partial Disability benefits of 50% loss of use of the person as a whole on January 22, 2009. The Commission affirmed this award on February 23, 2010. Appeal was taken to the circuit court and on January 13, 2011, the judge found the Commission decision was against the manifest weight of evidence and remanded the matter for further consideration. On June 30, 2011, the Commission issued its Remand Decision wherein it awarded Permanent Total Disability benefits to Petitioner for life. The circuit court subsequently affirmed and the matter was taken before the appellate court. 


In its September 25, 2013 order, the Fourth District Appellate Court found the Commission’s original award of 50% loss of the person as a whole was not against the manifest weight of evidence, and the circuit court had erred in setting aside the original determination. Accordingly, the court reinstated the February 23, 2010 decision.


On November 6, 2013, Petitioner filed a petition for review under Sections 19(h) and 8(a) of the Act. The employer moved to dismiss, arguing the §19(h) petition was filed beyond the 30-month window and the judicial review did not toll the time for filing. On April 23, 2014, the Commission granted the motion to dismiss, finding the §19(h) petition was untimely. On January 30, 2015, the circuit court affirmed. 


On April 29, 2016, the appellate court affirmed the Commission’s granting of the motion to dismiss the §19(h) petition for timeliness. The court noted resolution of the issue was controlled by Big Muddy Coal & Iron Co. v. Industrial Commission, 289 Ill. 515, 565 (1919), wherein the Illinois Supreme Court held “the right to file application for review of an award accrues as soon as an award is made and is not held in abeyance by appeal or writ of error, nor is that right affected by it.” The only exception to that rule being if there is a final determination from the appellate court quashing the original award. The supreme court had followed Big Muddy Coal in Cuneo Press, Inc. v. Industrial Commission, 51 Ill. 2d at 549, 282 N.E. 2d at 881, again holding the 30-month filing period for a §19(h) petition runs from filing of the Commission’s decision and judicial review does not toll the filing period. Since there was no final court order quashing Petitioner’s original award, the filing period was not tolled. 


Impact on Illinois Employers: absent a final appellate court order quashing an award, the parties may only petition to amend awards within 30 months of the original issuance date. This means that 30 months after issuing an award, neither party can re-open the case to establish either a reduction or increase in disability.