A majority of the Supreme Court of Illinois ruled that the chairman of the Industrial Commission should not have appointed arbitrators to temporary fill two permanent vacancies on a Commission panel. Rather, the Workers’ Compensation Act mandated that the two vacancies be filled by appointments of the governor “by and with the consent of the Senate.”

Claimant alleged he injured his back while lifting a kiln at defendant’s candy factory. The arbitrator awarded 57-6/7 weeks of temporary total disability, $7,828 in medical expenses and additional compensation pursuant to Sections 16, 19K) and 19(l). Defendant appealed to the Commission.

The case was assigned to a panel consisting of Commissioners John Hallock Jr., Barry Ketter and Linzey Jones. However, before the matter was heard and decided, Commissioner Hallock was promoted to chairman and Commissioner Jones resigned following a medical leave of absence. Hallock, in his capacity as the new Commission chairman, appointed a succession of arbitrators to temporarily fill the two vacancies left by himself and Jones.

The Commission panel consisting of Commissioners Ketter, Kane and Reichart limited the arbitrator’s TTD award to 14-5/7 weeks and vacated the awards of additional compensation and medical expenses. The Circuit Court of Cook County confirmed the decision of the Commission.

On appeal, claimant argued the Commission’s decision was void because the panel that rendered it was illegally constituted. He also argued, in the alternative, that the Commission’s findings as to causal connection, TTD, medical expenses and additional compensation were against the manifest weight of the evidence. In a decision reported at 8 ILWCLB 2036, the Appellate Court of Illinois-1st District rejected both arguments and affirmed the judgment of the Circuit Court.

A majority of the Ilinois Supreme Court reversed the Appellate and Circuit Court and remanded to the Commission, holding that the WCA mandates in a fiding that two of three commissioners who sat on the panel reviewing claimant’s case were not appointed in conformity with statutory requirements. Chief Justice Moses explained that under Section 13 of the WCA, responsibility for appointing commissioners and for filling vacancies in the office of commissioner is vested in the governor “by and with the consent of the Senate.” If the vacancy occurs while the Senate is in recess, the governor is empowered to make a temporary appointment until the next meeting of the Senate, at which time he is to nominate a person to fill the position. In the instant case, these procedures were not followed. Instead, Chairman Hallock appointed arbitrators to temporarily fill the vacancies.

The chief justice noted there is authority under Section 13 of the WCA for the chairman to designate an arbitrator to serve as an acting commissioner for up to six months, but that authority is reserved for situations where the sitting commissioner remains in office but “is or will be unavailable to fulfill [his or her] responsibilities.” The chief justice explained that this was inapplicable to the appointments replacing Chairman Hallock because he was never “unable to fulfill the responsibilities of his office.” He vacated his office completely upon being promoted. In addition, once Commissioner Jones’ absence was due to his resignation, rather than a medical leave, his responsibilities could also not be performed by an arbitrator, appointed by the chairman. Instead it was up to the governor to appoint a replacement by and with consent of the Senate.

Next, Chief Justice Harrison determined the effect of the absence of statutory authority, and therefore, was without jurisdiction. As a result, its actions were void and the decision is rendered invalid.

The chief justice went on to reject the Commission’s claim that the decision could be validated based on the doctrine recognizing de facto public officers. This doctrine prevents third parties or members of the public from raising collateral challenges to a public officer’s qualifications to hold office if considerations of public policy require the officer’s acts to be considered valid. The chief justice explained that no considerations of public policy militate in favor of preventing workers’ compensation claimants from challenging the legal status of the commissioners who passed on their claims where, as here, the challenge is raised on direct review of the award and the commissioners were appointed in a manner that threatens the WCA’s basic objectives.

In a specially concurring opinion, Justice McMorrow, joined by Justice Freeman, explained that although claimant did not question the validity of the panel of Commissioners when he appeared before that tribunal, he did so when the case was in the appellate court. Therefore, claimant’s untimeliness in raising the issue did not convert the case into a collateral proceeding. Furthermore, the justice continued, although issues not raised before an administrative agency are generally considered waived, voidness in a fundamental defect that cannot be waived by a failure to object. Whether there is a lack of jurisdiction which renders a judgment void is a matter which can be raised at any time.

Turning to the merits, Justice McMorrow explained he agreed with Chief Justice Harriso’s interpretation of the WCA. However, he did not agree with the chief justice as to the consequences which must follow from this conclusion. The justice contended that the decisions rendered by the replacement commissioners may be afforded defacto validity pursuant to the de facto officer doctrine. However the justice contended equities in the instant case, on balance, militate against application of the de facto office doctrine. The fact claimant successfully argued that the manner in which commissioners were being appointed was contrary to statute and this court found that the practice, if it continued, had the potential to undermine the WCA’s basic objectives, tips the balance in claimant’s favor and against application of the de facto doctrine, Justice McMorrow argued. Accordingly, under the particular circumstances of this case, claimant should be granted a remand so that a properly constituted panel of commissioners can review the arbitrator’s award.

Justice Thomas, joined by Justice Fitzgerald and Justice Garman, argued the court lacked jurisdiction over the instant case. The dissent contended that because the factual basis for the claim was never litigated and is found nowhere in the record on appeal, the issue is therefore waived. The dissent further contended that claimant’s arguments constituted an impermissible collateral attack. In addition, the dissent pointed out that the plurality in fact invalidates “this and every other decision of the Commission” in which the replacement commissioners participated.