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R.D. Masonry5/19/2005
hen he was pinned against a wall by a vehicle at work. Following the accident, the employer began making compensation payments to the claimant, which it continued to do until June 16, 1985, when it suspended payments based on a report from its investigator that the claimant had played golf on one occasion earlier that month. At the employer's request, claimant was examined by Dr. Oliver Grin on July 3, 1985. Dr. Grin eventually advised the claimant to "stay off work," and to set up a follow-up appointment six months later. Nevertheless, in October 1985, the employer requested that claimant be examined by Dr. James Dupre, even though Dr. Grin, also a physician chosen by the employer, had already examined the claimant and had recommended that he refrain from work and be reevaluated in six months.
The appellate court in Fencl-Tufo found that there was little to gain from the second examination and that the employer had proceeded in a manner that did not warrant compliance. Fencl-Tufo, 169 Ill. App. 3d at 516. It held that, when "an employer has arbitrarily suspended payments, and a claimant has already complied with one requested examination, the claimant's failure to attend a further examination does not violate section 12." Fencl-Tufo, 169 Ill. App. 3d at 516.
We agree with the appellate court that Fencl-Tufo is readily distinguishable. Unlike the present case, the employer in Fencl-Tufo suspended payments based on an investigator's report, not on the failure to attend a medical examination. More importantly, the employer had a medical examination at its request, which indicated that the claimant should refrain from work for six months. Despite this, the employer requested a second examination within half that time. All of this took place in the context of a single 19(b) proceeding, and the court found that the employer was proceeding in a manner that did not warrant compliance. In contrast, the instant case involved two 19(b) proceedings, and the Commission specifically found that the May 1999 request for an examination was not for an improper purpose.
Furthermore, it appears that the Fencl-Tufo court misapprehended an employer's ability to delay payment where it has an objectively reasonable belief that the employee is not entitled to compensation payments. Relying on Fuller v. Industrial Comm'n, 86 Ill. 2d 131 (1981), Fencl-Tufo observed that the employer had made no effort to petition the Commission for suspension of payments; instead, it "unilaterally suspended" them. Fencl-Tufo, 169 Ill. App. 3d at 516. But as previously noted, our Act does not require payment of temporary compensation prior to a final determination of liability where reasonable grounds exist to challenge that liability. Board of Education, 93 Ill. 2d at 9-10. Avon Products, Inc., 82 Ill. 2d at 304. Additionally, there is nothing in Fuller that would require an employer to petition the court to delay or suspend payment of TTD compensation prior to a final award. Instead, the Act provides ample remedies where an employer unreasonably or vexatiously denies payment.
King v. Industrial Comm'n, 189 Ill. 2d 167 (2000), while not directly on point, is instructive. There, the claimant was awarded permanent total disability for life in 1986. Ten years later, the employer filed a motion with the Commission to suspend claimant's compensation under section 12 because claimant had refused to comply with its request for a medical examination. A motion before the Commission to suspend payments was filed because the claimant's compensation award was for permanent total disability subject to a final award, not for temporary total disability in a section 19(b) proceeding. The Commission ordered claimant to submit to a
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