Illinois Official Reports 

Appellate Court

ABF Freight System, Inc. v. Fretts, 2015 IL App (3d) 130663

Appellate Court 

Caption

ABF FREIGHT SYSTEM, INC., Plaintiff-Appellant, v. DENNIS 

FRETTS, Defendant-Appellee.

District & No. Third District

Docket No. 3-13-0663

Rule 23 Order filed

Motion to publish

allowed

Opinion filed

July 10, 2015

August 12, 2015

August 12, 2015

Decision Under 

Review

Appeal from the Circuit Court of Kankakee County, No. 12-L-78; the 

Hon. Kendall O. Wenzelman, Judge, presiding.

Judgment Affirmed.

Counsel on

Appeal

Bradley J. Smith (argued), of Keefe, Campbell, Biery & Associates, 

LLC, of Chicago, for appellant.

Thomas A. Kelliher (argued), of Horwitz, Horwitz & Associates, of 

Chicago, for appellee.
- 2 - 

Panel JUSTICE LYTTON delivered the judgment of the court, with opinion.

Justice Schmidt specially concurred, with opinion.

Presiding Justice McDade dissented, with opinion.

 OPINION 

¶ 1 Plaintiff, ABF Freight System, Inc. (ABF), appeals from an order dismissing its complaint 

alleging fraud and seeking to recover workers’ compensation benefits paid to defendant, 

Dennis Fretts, pursuant to section 2-619(a) of the Code of Civil Procedure (Code) (735 ILCS 

5/2-619(a) (West 2012)). We hold that the trial court lacked jurisdiction to hear ABF’s claims 

and affirm. 

¶ 2 FACTS 

¶ 3 ABF, a trucking company that provides long-haul trucking, employed Fretts as a semitractor trailer driver for a number of years. In 2009, Fretts filed two workers’ compensation 

claims against ABF in which he alleged he suffered injuries to his right shoulder in 2007 and 

again in 2009 while loading and unloading a semi truck. In his workers’ compensation cases, 

Fretts was evaluated by doctors who opined Fretts was in need of lifting restrictions based in 

part on information Fretts provided. One of the doctors believed that the restrictions should be 

permanent. Because of these lifting restrictions, Fretts claimed he was unable to work for ABF. 

Relying on these statements, ABF paid Fretts temporary total disability (TTD) payments 

through September 15, 2011. 

¶ 4 On September 15, 2011, ABF received information suggesting Fretts was driving and 

receiving pay from another trucking company, Havener Enterprises (Havener). ABF hired a 

private investigator who followed Fretts and videotaped him lifting weights at a local gym. 

After reviewing the videotaped surveillance, orthopedic surgeon Dr. Steven Mash concluded 

that Fretts was physically capable of exceeding the lifting restrictions placed upon him by his 

doctor and that he was able to return to his prior work with ABF. 

¶ 5 On May 7, 2012, ABF brought a motion for determination of workers’ compensation fraud 

before the Illinois Workers’ Compensation Commission (Commission). In its motion, ABF 

asserted that Fretts (1) made knowing misrepresentations regarding the extent of his injuries 

and disabilities in order to obtain workers’ compensation benefits, including TTD payments, 

(2) was secretly driving for Havener, (3) made knowing misrepresentations regarding the 

extent and nature of his shoulder injuries, his alleged disabilities and his alleged inability to 

work, and (4) intentionally made false and fraudulent material statements as to the nature and 

extent of his injuries, the nature and extent of his physical limitations, his alleged disability and 

his alleged inability to work to both ABF and his physicians. 

¶ 6 ABF’s motion for a determination of fraud was heard before a Commission arbitrator in 

August of 2012. At the hearing, Fretts testified that he was unable to obtain other work. He 

admitted that he worked for Havener for a couple of days driving a flatbed and a pickup truck 
- 3 - 

to Louisiana. The arbitrator determined that a few days of light duty work did not constitute a 

stable labor market for purposes of determining TTD eligibility under the Workers’

Compensation Act (Act) (820 ILCS 305/1 et seq. (West 2012)). In a written order denying 

ABF’s fraud claims, the arbitrator found that “[ABF] failed to show any statement by [Fretts] 

that was both intentional and fraudulent regarding his working for Havener Enterprises while 

collecting TTD.” She also concluded that ABF “[had] not proven by a preponderance of the 

evidence, that [Fretts] committed a fraudulent act.”

¶ 7 On May 14, 2012, one week after it had filed the workers’ compensation motion, ABF filed 

a civil complaint against Fretts alleging that Fretts (1) fraudulently obtained TTD benefits from 

ABF while receiving compensation from another employer, (2) made material 

misrepresentations to obtain insurance benefits, and (3) committed workers’ compensation 

fraud under section 25.5 of the Act (820 ILCS 305/25.5 (West 2012)). 

¶ 8 After the arbitrator issued her decision in the workers’ compensation case, ABF filed an 

amended complaint in circuit court, reducing its civil claims to two counts. Count I alleged that 

Fretts committed insurance fraud pursuant to section 17-10.5 of the Criminal Code of 2012 

(720 ILCS 5/17-10.5(e)(1) (West 2012)) when he obtained insurance benefits from ABF 

through misrepresentation and deception. Count II alleged that Fretts committed common law 

fraud when making multiple misrepresentations to ABF to obtain workers’ compensation 

benefits. 

¶ 9 Fretts moved to dismiss ABF’s amended complaint pursuant to sections 2-615 and 

2-619(a) of the Code (735 ILCS 5/2-615, 2-619(a)(9) (West 2012)). In an attached affidavit, 

Fretts admitted that he drove a straight truck for Havener to Louisiana on two occasions: once 

in August 2011 and again in October 2011. In his motion to dismiss, Fretts argued that ABF’s 

complaint should be dismissed because, among other things, (1) the doctrines of res judicata 

and collateral estoppel barred ABF’s claims, and (2) the trial court lacked jurisdiction to hear 

fraud claims related to a workers’ compensation case. 

¶ 10 The trial court granted Fretts’ motion to dismiss. The court held that: 

“Clearly there is privity of the parties. And it appears that the fact in issue, the 

alleged filing of a fraudulent workers’ compensation claim, is identical to an issue 

critical to the remaining fraudulent theories contained in the first amended complaint. 

And lastly, the issue of fraud was brought to a final determination by the 

[Commission]. Thus under a collateral estoppel analysis, the court finds that the 

[section] 2-619 basis of the motion to dismiss should be and hereby is allowed.”

¶ 11 ANALYSIS 

¶ 12 An order dismissing a cause of action pursuant to section 2-619 of the Code is reviewed 

de novo. Selective Insurance Co. of South Caroline v. Cherrytree Cos., 2013 IL App (3d) 

120959, ¶ 18. In reviewing a motion to dismiss, it is axiomatic that we review the judgment of 

the lower court, not its reasoning. Rodriguez v. Sheriff’s Merit Comm’n, 218 Ill. 2d 342, 357 

(2006). Therefore, we may uphold the court’s judgment on any ground called for by the record. 

Id. 

¶ 13 ABF argues that the trial court erred in dismissing its petition because the causes of action 

for insurance fraud and common law fraud were not adjudicated during the workers’
- 4 - 

compensation proceedings and a dismissal based on collateral estoppel would defeat the 

equitable purpose of the doctrine by preventing ABF from ever litigating its fraud claims. 

¶ 14 Illinois courts have original jurisdiction over all justiciable matters. Ill. Const. 1970, art. 

VI, § 9. The legislature may vest exclusive original jurisdiction in an administrative agency. 

However, if the legislative enactment does divest the circuit courts of their original jurisdiction 

through a comprehensive statutory administrative scheme, it must do so explicitly. People v. 

NL Industries, 152 Ill. 2d 82, 96-97 (1992). 

¶ 15 Section 18 of the Act specifically states that “[a]ll questions arising under this Act, if not 

settled by agreement of the parties interested therein, shall, except as otherwise provided, be 

determined by the Commission.” 820 ILCS 305/18 (West 2012). In Employers Mutual Cos. v. 

Skilling, 163 Ill. 2d 284 (1994), our supreme court held that section 18 does not divest circuit 

courts of jurisdiction. The court held that, since no language in section 18 specifically excluded 

the circuit courts from deciding workers’ compensation cases, the Commission and the circuit 

court have concurrent jurisdiction. Id. at 287. The court noted that while administrative 

agencies should be given wide latitude in resolving factual issues, questions of law are more 

appropriately answered by the circuit court. It then concluded that determining the scope of 

coverage afforded under a workers’ compensation insurance provision is a question of law 

which the circuit court, not the Commission, is in the best position to address. Id. at 289. 

¶ 16 Our supreme court has also determined that circuit courts have no original jurisdiction in 

cases involving a determination of workers’ compensation benefits. Hartlein v. Illinois Power 

Co., 151 Ill. 2d 142, 157-58 (1992). This rule of law was further explained in Hollywood 

Trucking, Inc. v. Watters, 385 Ill. App. 3d 237 (2008). In Hollywood Trucking, the employer 

filed a complaint in the circuit court against its employee alleging that the employee 

fraudulently misrepresented his medical history during a medical examination. The employer 

alleged that had it been aware of the employee’s medical history, it would not have hired him 

and would not have subsequently become liable to provide him workers’ compensation 

benefits when he was injured. The circuit court dismissed the fraud count for lack of 

jurisdiction. Id. at 240-41. 

¶ 17 The appellate court relied on Hartlein and affirmed the dismissal. The court found that the 

allegations of fraud against the employee concerned the types of factual issues, such as the 

circumstances of the accident, the nature and extent of the injury and the employer’s potential 

defenses, which should be determined by the Commission rather than the circuit court. 

Id. at 245. 

¶ 18 After reviewing these cases and the language of section 18, we have determined that the 

relevant inquiry is whether the issues in the case involve questions of law or factual issues 

related to the workers’ compensation accident, the nature or extent of the employee’s injury or 

the potential defenses to the workers’ compensation claim. If they raise issues of fact related to 

the payment of workers’ compensation benefits, the circuit court’s role is appellate only. 

¶ 19 Here, ABF filed a motion for determination of benefits before the Commission and then 

filed a complaint in the circuit court based on identical allegations of fraud and 

misrepresentation involving the determination of benefits and TTD payments. The circuit 

court complaint alleges theories of insurance fraud and common law fraud and presents 

questions of fact, such as the extent or existence of Fretts’ injury and his representations to 

medical personnel regarding his injury both before and during the workers’ compensation 

proceedings. These are questions of fact in which the Commission is in a better position to 
- 5 - 

draw on its special expertise to answer. See Hollywood Trucking, 385 Ill. App. 3d at 245. 

ABF’s complaint does not present a question of law as in Skilling. Therefore, the cause should 

be before the Commission rather than the circuit court. 

¶ 20 ABF relies on Smalley Steel Ring Co. v. Illinois Workers’ Compensation Comm’n, 386 Ill. 

App. 3d 993 (2008), in support of its argument that the appropriate forum for its allegations is 

in the circuit court. But its reliance is misplaced. Smalley Steel involved a workers’

compensation proceeding where the evidence demonstrating fraud was not discovered until 

after the workers’ compensation decision was entered. Id. at 994-95. Unlike this case, the fraud 

evidence at issue in Smalley Steel was not presented during the pendency of the workers’

compensation proceedings. Moreover, the court in that case found that the Act “expressly 

provides for recall of an arbitrator’s decision in only one instance, i.e., to correct clerical or 

computational errors.” Id. at 997. The court noted that the arbitrator had no authority to recall 

his decision to address allegations of fraud learned after the workers’ compensation decision. 

Id. Where evidence of fraud is discovered after the arbitrator’s decision, the appropriate forum 

to address the issue is the trial court. Id. 

¶ 21 In this case, AFB requested that the Commission hear the fraud claim and presented 

evidence of the alleged fraud in the workers’ compensation case, and the arbitrator properly 

exercised the Commission’s jurisdiction in ruling on the fraud claims because they involved 

factual issues directly related to the determination of the employee’s workers’ compensation 

benefits. Consequently, the trial court lacked jurisdiction to hear ABF’s complaint. Our 

disposition of this jurisdictional issue obviates discussion of ABF’s contention that the fraud 

claims are not barred by collateral estoppel. 

¶ 22 CONCLUSION 

¶ 23 The judgment of the circuit court of Kankakee County granting Fretts’ motion to dismiss is 

affirmed. 

¶ 24 Affirmed. 

¶ 25 JUSTICE SCHMIDT, specially concurring. 

¶ 26 While I concur in the judgment, I write separately to point out three things. First, I disagree 

with Hollywood Trucking to the extent that it states the Commission has some special expertise 

that equips it better than the circuit court to deal with issues of fraud. Supra ¶ 17. Second, I do 

not understand why ABF did not appeal the Commission’s decision to the appellate court. 

Third, I agree with the trial court that ABF’s suit attempts to litigate issues that were raised at 

the Commission. Therefore, I find the suit barred by res judicata rather than lack of 

jurisdiction. 

¶ 27 PRESIDING JUSTICE McDADE, dissenting. 

¶ 28 The majority has found that we do not have jurisdiction over allegations of fraud in 

workers’ compensation cases unless the claim is discovered after the arbitrator for the Illinois 

Workers’ Compensation Commission (the Commission) has made a decision. For the reasons 

that follow, I respectfully dissent from that decision. 
- 6 - 

¶ 29 In Leviege v. Ford Motor Co., No. 07 W.C. 51713, 10 I.W.C.C. 1287, 2010 WL 5584488 

(Ill. Indus. Comm’n Dec. 28, 2010), the Commission itself denied it had jurisdiction to 

determine if fraud was committed in instances involving misrepresentations to acquire 

workers’ compensation benefits. It held that the Commission can make findings regarding 

credibility of witnesses and weight of evidence but “[it] does not have jurisdiction to determine 

what, if any, fraud was committed; that issue is the jurisdiction of another tribunal.” Id. 

¶ 30 It is uncertain if this is the reason the Commission’s arbitrator in this case made relevant 

findings but failed to make a determination regarding Fretts’ allegedly fraudulent 

misrepresentations. However, as the majority has pointed out, the statute is clear that once the 

arbitrator has made a determination on issues presented to her or, as in this case, failed to make 

a determination, she is prohibited from relitigating the issue by setting aside their order absent 

fraud in the proceedings itself or a clerical or computational error. 

¶ 31 Thus, if the majority is correct in stating our courts do not have jurisdiction to rule on issues 

of fraud in workers’ compensation benefits cases and the Commission is also correct in 

concluding it too lacks jurisdiction, then a plaintiff like ABF Freight is left without a tribunal 

able to resolve its justiciable claim of fraud. This is untenable and unjust. Though our courts 

may not have original jurisdiction over cases involving a determination of workers’

compensation benefits (Hartlein v. Illinois Power Co., 151 Ill. 2d 142, 158 (1992)), where the 

Commission has clearly stated that it is not the proper forum for determinations of fraud, our 

courts need not forgo our authority to handle the matter. Kellerman v. MCI 

Telecommunications Corp., 112 Ill. 2d 428, 445 (1986) (“[W]hen an agency’s technical 

expertise is not likely to be helpful, or there is no need for uniform administrative standards, 

courts should not relinquish their authority over a matter to the agency.”). We should find the 

courts also need not relinquish authority if the agency has denied its own authority to resolve 

the issue presented.