2019 IL App (1st ) 180644 WC No. 1-18-0644 WC Opinion filed March 29, 2019

______________________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS
FIR ST DISTRICT
WORKERS ’ COMPENSATION COMMISSION DIVISION

______________________________________________________________________________ ILLINOIS STATE TREASURER , as ex - ) Appeal from the Circuit Court officio custodian of the Injured Workers’ ) of Cook County Benefit Fund, ) ) Plaintiff -Appell ant , ) ) v. ) No. 17-L-50583 ) ESTATE OF GYULA KORMANY, A

- TECH ) STUCCO EIFS COMPANY, and the ) ILLINOIS WORKERS’ COMPENSATION ) COMMISSION, ) ) Defendants, ) ) Honorable ( Estate of Gyula Kormany and A

- Tech Stucco ) James M. McGing, EIFS Company, Defendants- Appellees). ) Judge, Presiding.

______________________________________________________________________________ JUSTICE HUDSON delivered the judgment of the court, with opinion. Presiding Justice Holdridge and Justices Hoffman, Cavanagh, and Barberis concurred in the judgment and opinion. O PINION ¶ 1 In April 2008, Gyula Kormany (Kormany) filed an application for adjustment of claim seeking benefits pursuant to the Workers’ Compensation Act (Act) (820 ILCS 305/1 et seq. (West 20 08 )) for injuries he allegedly sustained while working for A

- Tech Stucco EIFS2019 IL App (1st) 180644WC

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- Company (A

- Tech). In June 2009, the circuit court of Cook County found that A

- Tech’s workers’ compensation insurance carrier had no duty to defend or indemnify A- Tech against Kormany’s workers’ compensation claim because A

- Tech had breached the insurance contract. Kormany subsequently amended his application for adjustment of claim to name as a party the Illinois State Treasurer (Treasurer), as ex officio custodian of the Injured Workers’ Benefit Fund (Fund). After finding that Kormany’s accident arose out of and in the course of his employment with A

- Tech, the arbitrator awarded medical expenses and permanent partial disability benefi ts. The arbitrator also concluded that the Fund was liable for payment of the award because, although A

- Tech had workers’ compensation insurance at the time of the accident, it “failed to provide coverage” within the meaning of section 4(d) of the Act (820 ILCS 305/4(d) (West
2008 )) by breaching the insurance contract. A majority of the Illinois Workers’ Compensation Commission (Commission) affirmed and adopted the decision of the arbitrator. The circuit court of Cook County confirmed the decision of the Co mmission. The Treasurer timely appealed. ¶ 2 We observe that in October 2014, prior to the arbitration hearing, Kormany died of causes unrelated to his workers’ compensation claim. There is no evidence of record that a personal representative was appointed and substituted as the petitioner following Kormany’s death . Instead, the application for adjustment of claim was amended to substitute the Estate of Kormany as petitioner. When confronted with similar circumstances, Illinois courts have found that the plaint iff’s death suspended the court’s jurisdiction until the appointment of a proper party plaintiff. See Voga v. Voga , 376 Ill. App. 3d 1075, 1079 (2007) (finding that party’s death suspended the trial court’s jurisdiction until the court appointed a proper s uccessor plaintiff); Washington v. Caseyville Health Care Ass’n , 284 Ill. App. 3d 97, 100

- 01 (1996) (holding that client’s death ter minated attorney’s authority and , since there was no plaintiff, the court’s2019 IL App (1st) 180644WC

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- jurisdiction was suspended until a party plaintiff was appointed ). Ac cordingly, we hold that Kormany’s death suspended the Commission’s jurisdiction over his c laim until such time as a personal representative of Kormany’s estate was properly appointed and substituted as the petitioner. In the absence of such an appointment and substitution, the Commission ’s decision

was premature and therefore improper. As a result, both the decision of the Commission and the judgment of the circuit court must be vacated. ¶ 3 During oral arguments, the attorney representing the party denominated as the Estate of Gyula Kormany suggested that if the gross value of Kormany’s estate is less than $100,000, the claim could proceed under section 25

- 1 of the Probate Act of 1975 (Probat e Act) (755 ILCS 5/25- 1 (West 20 08 )), which provides for the payment or delivery of a small estate upon affidavit. While section 25

- 1 of the Probate Act undoubtedly permits the distribution of an esta te’s assets by means of a small

- estate affidavit, we find this to be separate and distinct from the requirement that a personal representative of the decedent’s estate be appointed to prosecute a workers’ compensation claim that is pending and unresolved at the time of the employee’s dea th. Indeed, this circumstance is no different from when a plaintiff in a pending common law action dies. In such circumstances, a personal representative of the deceased plaintiff’s estate is appointed and substituted as the party plaintiff. See 735 ILCS 5 /2

- 1008(b) (West 20 08 ) ; In re Marriage of Fredricksen , 159 Ill. App. 3d 743, 744

- 45 (1987). Thus, while the proceeds of a judgment may be distributed pursuant to the small

- estate procedure outline d in the Probate Act , no authority has any been cited to us that would permit the prosecut ion of an action absent the appointment of a personal representative. ¶ 4 F or the reasons set forth above, we are compelled to vacate the judgment of the circuit court and the decision of the Commission and remand t he case to allow a properly appointed2019 IL App (1st) 180644WC

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- representative of Kormany’s estate to be substituted as the petitioner and for further proceedings thereafter. ¶ 5 Circuit court judgment vacated

. ¶ 6 Commission decision vacated, and c ause remanded.