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R.D. Masonry5/19/2005
Docket No. 98990-Agenda 14-March 2005.
The main issue presented by this appeal is whether claimant was an "employee entitled to receive disability benefits" within the meaning of section 12 of the Workers' Compensation Act (the Act) (820 ILCS 305/12 (West 1998)), so that he was required to submit to an employer-requested medical examination to avoid suspension of benefits. We answer in the affirmative.
BACKGROUND
Claimant, Scott Hunter, filed an application for adjustment of claim to recover benefits for a back injury he allegedly sustained while working for R.D. Masonry (Masonry) on August 21, 1998. Masonry disputed the claim and requested that claimant be examined by Dr. Avi Bernstein pursuant to section 12 of the Act. On December 14, 1998, claimant was examined by Dr. Bernstein, and the cause proceeded to a hearing before an arbitrator on March 15, 1999. The arbitrator awarded claimant temporary total disability (TTD) benefits from August 31, 1998, through March 15, 1999, finding Dr. Bernstein's report unpersuasive.
Thereafter, Masonry filed for review of the arbitrator's decision to the Industrial Commission (Commission). While review was pending before the Commission, Masonry's insurance carrier sent a letter to claimant's attorney on May 19, 1999, requesting that claimant be examined by Dr. Bernstein on May 27, 1999. The claimant did not attend the appointment. Claimant testified that his attorney never told him of the scheduled appointment so he was unaware of it. But claimant's attorney testified that he instructed claimant not to attend the examination.
On May 28, 1999, Masonry's insurance carrier sent another letter to claimant's attorney offering to reschedule an appointment with Dr. Bernstein. Claimant's attorney responded with a letter on June 3, 1999, informing the insurer that his client would not attend any examination until Masonry complied with the arbitrator's decision.
On June 24, 1999, the Commission modified the arbitrator's calculation of claimant's average weekly wage, but otherwise affirmed the arbitrator's decision. Masonry filed for judicial review of the Commission's decision in the circuit court of Cook County. The circuit court recalculated claimant's average weekly wage, but confirmed the remainder of the Commission's decision. Masonry appealed, and on December 21, 2000, the appellate court affirmed the circuit court's decision.
In January 2001, Masonry paid claimant $23,423.82, which covered the TTD award through March 15, 1999, plus interest. Masonry also paid claimant an additional $7,282.58 for TTD benefits for the period running from March 16, 1999, through May 27, 1999. Masonry, however, did not pay any benefits for the period after May 27, 1999, the date of the scheduled medical examination that claimant refused to attend.
Claimant then filed another petition before the arbitrator, this time requesting TTD benefits for the period after May 27, 1999. The arbitrator found, however, that claimant was not entitled to benefits after May 27, 1999, because he refused to attend the scheduled medical examination pursuant to section 12 of the Act, which requires " n employee entitled to receive disability payments" to submit himself or herself to a medical examination if requested by the employer. See 820 ILCS 305/12 (West 1998). Accordingly, the arbitrator entered an order awarding claimant TTD for the period from March 16, 1999, through May 27, 1999.
The Commission, with one commissioner dissenting, ruled that because Masonry was not making TTD payments to claimant at the time of the medical examination scheduled for May 27, 1999, claimant was not "an emplo
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