2019 IL App (1st) 181449WC

Workers’ Compensation Commission Division Opinion Filed: June 28, 2019

No. 1-18-1449WC ______________________________________________________________________________

IN THE APPELLATE COURT OF ILLINOIS

FIRST DISTRICT

RAVENSWOOD DISPOSAL SERVICES, ) Appeal from the ) Circuit Court of Appellant, ) Cook County ) v. ) No. 17 L 051033 ) ) THE ILLINOIS WORKERS’ COMPENSATION ) COMMISSION et al. ) ) (Sergio Lagunas, n/k/a Sergio Delgado, by His ) Honorable Parent/Guardian Maria Diaz, Next of Kin of Raul ) James McGing, Lagunas, Deceased, Appellee). ) Judge, Presiding. ______________________________________________________________________________

JUSTICE HOFFMAN delivered the judgment of the court, with opinion. Presiding Justice Holdridge and Justices Hudson, Cavanagh and Barberis concurred in the judgment and opinion.

OPINION ¶1 Ravenswood Disposal Services (RDS) appeals from an order of the circuit court of Cook County, confirming a decision of the Illinois ’Workers’ Compensation Commission (Commission) that (1) found that an employment relationship existed between it and the No. 1-18-1449WC decedent, Raul Laguna, on September 14, 2013, when, while working, Raul was pinned between two vehicles resulting in his death, and that Raul’s minor son, Sergio Lagunas, now known as Sergio Delgado, qualifies as a dependent under section 7(a) of the Workers’ Compensation Act (Act) (820 ILCS 305/7(a) (West 2012)), notwithstanding the fact that he was adopted by Isidro Delgado subsequent to the date of the accident, which resulted in the death of his father; (2) awarded Sergio death benefits and weekly benefits until age 18 or, if he is enrolled in an accredited educational institution, until age 25, penalties under sections 19(k) and (l) of the Act (id. § 19(k), (l )and attorney fees under section 16a of the Act ( id. § 16a); and (3) ordered it to pay Raul’s medical bills of $17,570.61, subject to the statutory fee schedule. For the reasons which follow, we affirm. ¶2 The following factual recitation is taken from the evidence adduced at the arbitration hearing held on October 26, 2015. ¶3 Maria Diaz and Raul married on June 4, 1996. Their son, Sergio, was born on November 9, 2001. Maria and Raul divorced on August 18, 2010, and on October 17, 2010, Maria married Isidro Delgado. It is uncontested that Raul died on September 15, 2013, after he was crushed between a dump truck and front loader on the premises of RDS on September 14, 2013. The parties stipulated that RDS paid funeral and burial costs totaling $14,062.50 and made one payment of $1497.60 for death benefits. ¶4 Maria testified that, after she and Raul divorced, Raul complied with the court’s order to pay her child support, which, according to their marital settlement agreement (MSA), amounted to $313.04 every other week. Later, when Raul began receiving cash payments from RDS, he gave Maria payments totaling $200 to $300 per week. Until he died, Raul made those payments on a weekly or monthly basis, depending on when Maria needed the money, and also gave

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Sergio a weekly allowance of $10 to $30. Maria explained that she and Raul “provided for”

Sergio even though he lived with her and Isidro and, although she did not have “frequent” contact with Raul, he responded “any time [she] needed help from him.” After Raul died, Isidro adopted Sergio, and Maria changed the last name on his birth certificate from Lagunas to

Delgado. Until his adoption, Sergio used the last name Lagunas.

¶5 Branko Vardijan, RDS’s president, testified that Raul began working for RDS and its related companies “a few years before his death.” A spreadsheet entered into evidence showed that RDS paid Raul a total of $37,674.70 between September 8, 2012, and September 11, 2013.

Raul received $750 per week between September 8, 2012, and November 10, 2012, but entries between November 17, 2012, and September 11, 2013, varied between $0 and $1264 per week.

Vardijan stated that RDS initially paid Raul by sending checks to a staffing company but later, at

Raul’s request, paid him directly in cash. RDS did not issue him “W-2” or “1099” forms for the cash payments. Vardijan explained that the cash payments began following a conversation in March 2013 between him, his brother, and Raul, during which Raul requested to “do work differently.” Specifically, Raul asked to work at just one of RDS’s premises and to set his own hours. Notwithstanding, Vardijan stated that he told Raul “what to do” and agreed that he

“control[led] *** the way that [Raul] did his job.” Vardijan added that he considered Raul to be an employee and acknowledged that, when the accident occurred, he was “doing the work that employees do.”

¶6 Sergio testified that, at the time of the hearing, he considered his parents to be Maria and Isidro. He agreed that Isidro “bought [him] things” after marrying Maria and that he spent most of his free time with Isidro and Maria and went on vacations with them. Sergio agreed that he did not see Raul often after Raul and Maria divorced but also stated that Raul picked him up from

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No. 1-18-1449WC school two or three days per week and would give him $5 or $10. Sergio’s school records and a martial arts award from 2015 listed his last name as Delgado, but he explained that he did not use the name Delgado until “after” Maria and Isidro “changed [his] last name.”

¶7 Maria testified that, at the time of the hearing, she paid “a hundred percent” of the expenses for Sergio’s “[h]ealth and welfare.” When Isidro contributed, he typically paid “a little less” than 30% of Sergio’s expenses.

¶8 Prior to the close of proofs, Maria’s counsel entered into evidence a notice issued by the Department of Healthcare and Family Services (DHFS) to RDS, stating that DHFS “has become subrogated to [Raul]’s right of action to recover medical expenses paid on [his] behalf.” Maria’s counsel also tendered bills from the medical providers who treated Raul before he died.

Although counsel represented that the bills “were sent directly to [Maria],” each was addressed to Raul at his address in Chicago.

¶9 RDS’s counsel objected to the admission of the bills into evidence on the basis that

“many of [the bills] have been reduced,” but he did not specify which bills were inaccurate and did not provide his own calculations for the unpaid expenses. The arbitrator asked RDS’s

counsel whether he had “any other grounds” for objecting to the bills’ admission into evidence, and he said, “no.” Next, the arbitrator asked Maria’s counsel whether the bills were obtained pursuant to subpoena and certified for purposes of the Act. Maria’s counsel stated that the bills were certified but that the certifications were not attached to them and that he could “make [a]

representation to the court” that they had been obtained pursuant to subpoena. The arbitrator stated that the bills would be entered into evidence subject to “the grounds that are stated in [RDS’s] objection.”

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¶ 10 Following the arbitration hearing on October 26, 2015, the arbitrator held that (1) RDS employed Raul on the date of the accident, (2) the accident arose out of and in the course of his

employment, and (3) Sergio was Raul’s survivor for purposes of section 7(a) of the Act. The arbitrator found that RDS unreasonably argued that no employment relationship existed, as the evidence established that it controlled Raul’s work, paid him regularly during the year preceding

his death, and its president considered him to be an employee. The arbitrator also noted that, although RDS “raised reasonable questions” as to whether Sergio was entitled to benefits after

Maria’s second husband, Isidro Delgado, adopted him following Raul’s death, Sergio’s right to benefits under the Act was unaffected by his adoption, the fact that Isidro financially supported

him, or evidence that he regarded Isidro as a father and lacked “emotional ties” with Raul. The arbitrator concluded that, because Sergio was Raul’s dependent when Raul died, Raul was legally required to support him, and because Maria testified “credibly” that Raul paid child support until his death, Sergio was entitled to section 7(a) benefits. The arbitrator (1) ordered

RDS to pay Raul’s medical bills totaling $17,570.61, subject to the fee schedule; (2) awarded

Sergio death benefits of $48,089.90 and weekly benefits of $473.39 until age 18 or, if he is enrolled in an accredited educational institution, until age 25; and (3) granted RDS a $15,560.10 credit for already-paid death benefits and funeral expenses. Additionally, the arbitrator imposed

penalties of $32,081.46 and $10,000 pursuant to sections 19(k) and 19(l) of the Act, respectively, and attorney fees and costs totalling $12,832.58 under section 16 of the Act.

¶ 11 RDS filed a petition for review of the arbitrator’s decision before the Commission. On

November 17, 2017, with one commissioner dissenting, the Commission affirmed and adopted

the arbitrator’s decision. The dissenting commissioner noted that, although section 7(a) of the Act does not expressly terminate benefits for dependent minors upon adoption in the same

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manner as for surviving spouses who remarry, that provision should be construed in light of the Adoption Act (750 ILCS 50/1 et seq. (West 2012)). As the Adoption Act’s intent “is to terminate

all parental rights and responsibilities of [a] biological parent in lieu of the adoptive parent,” and the Act’s purpose “is to protect dependent children in case of [the] work-related death of a parent upon whom the child is legally dependent,” the dissenting commissioner reasoned that Sergio’s

adoption “terminated his dependency on his late father and therefore his entitlement to survivor benefits.” (Emphasis in original.) According to the dissenting commissioner, the majority’s decision would allow Sergio to collect double benefits should Isidro also die in a work-related accident, which would be “fundamentally unfair and might have due process implications.”

¶ 12 RDS sought a judicial review of the Commission’s decision in the circuit court of Cook

County. On June 7, 2018, the court entered a written order confirming the Commission’s decision, and this appeal followed.

¶ 13 As an initial matter, we observe that RDS directs each of its four assignments of error against the order of the circuit court affirming the Commission’s decision. When, as here, an

appeal is taken following entry of judgment by the circuit court on review from a decision of the Commission, this court reviews the ruling of the Commission, not the judgment of the circuit court. Dodaro v. Illinois Workers’ Compensation Comm’n, 403 Ill. App. 3d 538, 543 (2010).

¶ 14 For its first assignment of error, RDS claims that the Commission’s finding that Raul was

its employee, and not an independent contractor, when the accident occurred was against the manifest weight of the evidence. RDS notes that Raul did not have an employment contract, Vardijan did not control his schedule, and Raul requested to work at a particular location.

Additionally, RDS posits that variations in Raul’s cash payments during the months preceding

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No. 1-18-1449WC the work accident suggest that he was not paid in the manner of either an employee for RDS or the staffing company.

¶ 15 Whether an employment relationship existed at the time of an accident is a question of fact. Esquinca v. Illinois Workers’ Compensation Comm’n, 2016 IL App (1st) 150706WC, ¶ 48.

“In resolving questions of fact, it is within the province of the Commission to assess the credibility of witnesses, resolve conflicts in the evidence, assign weight to be accorded the evidence, and draw reasonable inferences from the evidence.” Id. We will disturb the Commission’s determination of a factual issue only if it is against the manifest weight of the evidence. Durand v. Industrial Comm’n, 224 Ill. 2d 53, 64 (2006). For a factual finding to be against the manifest weight of the evidence, the “opposite conclusion” must be “clearly apparent,” such that “no rational trier of fact could have agreed” with the Commission. Id.

Whether a reviewing court might reach the opposite conclusion is not the test of whether the Commission’s determination of a question of fact is supported by the manifest weight of the evidence; rather, the appropriate test is “whether there is sufficient factual evidence in the record to support the Commission’s decision.” Benson v. Industrial Comm’n, 91 Ill. 2d 445, 450 (1982).

¶ 16 It is well established that, “[f]or purposes of the Act, the term ‘employee’ should be broadly construed.” Esquinca, 2016 IL App (1st) 150706WC, ¶ 46. Although “[n]o rigid rule exists regarding whether a worker is an employee or an independent contractor,” several criteria are relevant to consider in making this determination. Labuz v. Illinois Workers’ Compensation

Comm’n, 2012 IL App (1st) 113007WC, ¶ 30. “The single most important factor is whether the purported employer has a right to control the actions of the employee.” Ware v. Industrial

Comm’n, 318 Ill. App. 3d 1117, 1122 (2000) (citing Bauer v. Industrial Comm’n, 51 Ill. 2d 169, 172 (1972)). Another criterion “of great significance” is the nature of the alleged employee’s

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No. 1-18-1449WC work in relation to the employer’s general business. Id. (citing Ragler Motor Sales v. Industrial

Comm’n, 93 Ill. 2d 66, 71 (1982)). Other relevant criteria include “the method of payment, the right to discharge, the skill the work requires, which party provides the needed instrumentalities, *** whether income tax has been withheld,” and to a lesser extent, “the label the parties place upon their relationship.” Id.

¶ 17 The nature of RDS’s business and the scope of Raul’s duties are not specified in the record, but it is undisputed that he died after he was crushed between a dump truck and front loader on RDS’s premises, and no evidence suggested that he had provided those vehicles.

Vardijan agreed that Raul was “doing the work that employees do,” and that he told Raul “what to do” and “control[ed] *** the way that [Raul] did his job,” albeit at a worksite and on a schedule that Raul preferred. Further, Vardijan acknowledged that RDS did not issue Raul either a W-2 form or 1099 form for the cash payments he received between March 2013 and September

2013. Thus, although RDS posits that the cash payments recorded in the spreadsheet do not, in themselves, prove that he received wages as an employee, neither do they support the inference that he was compensated as an independent contractor where RDS admitted that it never created

the tax forms that could have been relevant to that determination. See Reo Movers, Inc. v. Industrial Comm’n, 226 Ill. App. 3d 216, 224 (1992) (inferring that evidence which an employer did not produce at a hearing would be adverse to the employer where such evidence was in its

control and not equally available to the employee). These circumstances, taken as a whole and considered alongside Vardijan’s admission that he considered Raul to be an employee, support the Commission’s finding that an employment relationship existed between Raul and RDS when

the accident occurred. Based on this record, the Commission’s determination is not against the manifest weight of the evidence, and RDS’s claim of error is, therefore, without merit.

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¶ 18 Next, RDS contends that the Commission erred as a matter of law in awarding

$17,570.61 for medical bills that were entered into evidence without proof that they were certified or obtained pursuant to subpoena under section 16 of the Act (820 ILCS 305/16 (West

2012)). RDS further posits that, due to write-offs, reductions, and payments from other sources, Raul’s unpaid medical expenses “only amount to $9,131.61.”

¶ 19 Section 16 of the Act relaxes the foundational requirement for the admission of hospital records by providing that “records, reports, and bills kept by a treating hospital, *** certified to as true and correct by the hospital, *** shall be admissible without any further proof as evidence of the medical and surgical matters stated therein.” Id.; National Wrecking Co. v. Industrial

Comm’n, 352 Ill. App. 3d 561, 567 (2004). The statute creates “a rebuttable presumption that any such records, reports, and bills received in response to Commission subpoena are certified to be true and correct.” 820 ILCS 305/16 (West 2012). “[H]ospital records are highly reliable,” but “a proper foundation” is still required “before they will be admitted into evidence.” National

Wrecking Co., 352 Ill. App. 3d at 568. Therefore, “[w]hen a proper objection is raised, *** the certification requirement of section 16 must be observed.” Id.

¶ 20 At the hearing, RDS’s counsel objected to the admission of Raul’s medical bills on a

single ground—namely, that “many” of the bills had been reduced and were, therefore, inaccurate—and expressly denied raising any other challenge to their admissibility. The arbitrator admitted the bills into evidence subject to the objection “stated in [RDS’s] objection.”

Thus, although the arbitrator also questioned Maria’s counsel about whether the bills had been certified or obtained pursuant to subpoena, RDS never objected to their admission on that basis.

Its claim of error based upon lack of certification is, therefore, forfeited. See People v. Sawyer, 42 Ill. 2d 294, 298 (1969) (declining to consider a claim of evidentiary error where the objection

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No. 1-18-1449WC urged on review involved “an entirely different basis from the objection in the trial court”). As for RDS’s claim that Raul’s unpaid medical bills totaled $9131.61, RDS never raised that figure

before the arbitrator, nor did RDS apprise the arbitrator, the Commission, the circuit court, or this court of the particular bills that it challenged. The appellate court “is not merely a repository into which an appellant may dump the burden of argument and research, nor is it the obligation of this court to act as an advocate or seek error in the record.” (Internal quotation marks omitted.)

U.S. Bank v. Lindsey, 397 Ill. App. 3d 437, 459 (2009). The vagueness of RDS’s argument precludes this court from conducting any meaningful review of its challenge to the arbitrator’s award of medical expenses. As such, this argument is rejected. ^[1]

¶ 21 For its next assignment of error, RDS contends that the Commission erred in finding that

Sergio qualified as Raul’s dependent under section 7(a) of the Act because, as a matter of law, death benefits are not due to a decedent’s child who has been adopted. In support of this position, RDS observes that section 17 of the Adoption Act (750 ILCS 50/17 (West 2012)) provides that

“[a]fter *** the entry of a judgment of adoption, the natural parents of a child sought to be

adopted shall be relieved of all parental responsibility for such child.” As the legal obligation for Sergio’s support no longer rested with Raul (or more accurately, Raul’s estate) following his adoption by Isidro, RDS posits that his adoption “sever[ed] any liability [for death benefits] that would otherwise have existed under the Act.”