Expanding Survivors: Appellate Court Opinion Regarding Dependent Benefits Sparks New Possibilities

November 2024

Micaela M. Cassidy

On July 19, 2024, the Illinois Appellate Court, First District issued an Opinion, in the matter of Kevin Cronk, son of Richard Cronk, Deceased v. Illinois Workers’ Compensation Commission (Kimball Hill Homes), 2024 Ill App (1st) 221878WC, 2024 WL 3465577. The Court overturned the Commission Decision denying the son’s Application seeking survivors’ benefits, even though he was over 18 and not enrolled in higher education when his father died. This may represent an expansion of dependent survivors’ rights under the Act. The matter was remanded to the Commission for further proceedings. The Commission will calculate the amount of benefits owed to Kevin Cronk.

Underlying Facts

On December 6, 2006, while employed as a construction manager by Kimball Hill, Richard Cronk was shoveling snow at a new home worksite and suffered a fatal cardiac arrest. On March 23, 2007, an Application for Adjustment of Claim was filed by Richard Cronk's wife at the time of his death, Ms. Rowe-Cronk (07 WC 012760). The issues of accident and causation were in dispute, and the case settled on a compromised basis for $225,000.00. Settlement contracts were approved on April 27, 2009. Seven months later, on December 4, 2009, the decedent’s son, Kevin Cronk, filed his own Application for Adjustment of Claim (09 WC 049653). As to Kevin Cronk, and consistent with their position in the case filed by the widow, the respondent disputed that the decedent’s injuries arose out of a risk of his employment as a construction manager and disputed that his fatal cardiac arrest was causally related to his employment.

The Commission held that Kevin Cronk failed to prove accident. However, on appeal to the Appellate Court, this issue was overturned. In overturning the finding of “no accident”, the Appellate Court cited to the 2020 IL Supreme Court Decision in McAllister v. Illinois Workers’ Compensation Commission, 2020 IL 124848, in which the Court stated that where an injury occurs during employment, and while a worker fulfills his work duties or engages in an incidental employment duty, it arises out of the employment. The Appellate Court stated the evidence showed that he was shoveling to prepare for the arrival of prospective buyers, a reasonably expected duty of an employee in his position as construction manager. The Appellate Court found that Richard Cronk’s heart attack occurred in the course of his employment.

Oldest Child’s Application – Filed December 4, 2009

Kevin Cronk turned 18 years of age on May 1, 2006. On December 6, 2006, the date of his father's death, he was over 18 years old, had graduated from high school, and was not enrolled in an accredited center of education on a full-time basis. There was no evidence that Kevin Cronk was physically or mentally incapacitated under Section 7(a), which would allow survivor benefits to continue for the duration of the disability. Thus, he was not eligible for survivors’ benefits on the date of accident/death.

In April 2009, Kevin Cronk’s stepmother's disputed claim for spousal survivors’ benefits was settled on a compromised basis for $225,000.00. On December 4, 2009, eight months later, and two days before the statute of limitations was to expire, Kevin Cronk filed his Application for Adjustment of Claim seeking survivors’ benefits. At the time he filed his Application, Kevin Cronk was 21 years, 7 months of age.

The case was not tried until March 13, 2019, ten years later. The Arbitrator found no accident, no causation and denied that Kevin Cronk was a survivor. Of note, the Supreme Court Decision in McAllister was issued on September 24, 2020, therefore adjudicators in this case were operating in a pre-McAllister "world" at the time evidence was presented.

On November 13, 2020, the Commission affirmed and adopted the Arbitration Decision, and only in a dissenting opinion by Commissioner Tyrrell were the Appellate Decisions in McAllister and Drives, Inc. opinions mentioned as the basis for overturning the Arbitrator as to accident and survivorship. On Judicial Review to the Circuit Court, the Court held that the Commission’s denial was not contrary to the manifest weight of the evidence presented at trial and affirmed it. Kevin Cronk appealed to the First District Appellate Court.

Survivors in a Section 8(f) Death Case

As to the issue of dependency, Kevin Cronk testified that he was born on May 1, 1988, and his parents divorced in January 1990. At his trial on March 13, 2019, he testified that he turned 18 years on May 1, 2006, graduated from high school in late May 2006 and his father died on December 6, 2006. He was not enrolled in any post-high school education when his father died. Rather, he took a “gap year” and enrolled in college in the Fall of 2007. He failed to testify to any dependency upon his father at the time of his death.

The Commission denied benefits to Kevin Cronk, indicating that granting benefits to a child over 18 at the time of death and not enrolled in school at the time would “prevent any finality or closure of benefits when there remains a child over 18 at the time of death, requiring the parties to wait until that child reaches the age of 25.” The Circuit Court affirmed this Decision.

The Appellate Court overturned the issues of accident and dependency as to Kevin Cronk, citing to their prior Decision in Drives, Inc. v. Industrial Comm’n, 124 Ill. App. 3d 1014 (1984) and with their own reading of Section 7 of the Act.

In Drives, Inc., the surviving child was under 25 years, and a full-time student at the time of her parent’s death. The employer argued that benefits should be denied as her full-time education was interrupted between undergraduate and graduate school. The Drives, Inc. Court stated that a surviving child qualifies if, 1. The child is under 18 years; 2. The child is under 25 years and a full-time student; or 3. The child is physically or mentally handicapped. The Drives, Inc. court stated that the Act made no exception to the 25-year-age rule and did not expressly terminate benefits if there was a break in the education continuum. Drives, Inc., at 1014-1017.

In Cronk, the Appellate Court noted Section 7(a) of the Act, also allows for compensation of a child who is older than 25 and not enrolled in school, but rather physically or mentally disabled. Kevin Cronk did not testify to any dependency related to physical or mental disability. The Court stated that the "plain language of sections 7(a) and section 7(c) when read together, demonstrate the legislature’s intent to provide broad eligibility to surviving children up to the age of 25… Even if a surviving child were entirely precluded from receiving benefits under section 7(a) of the Act, section 7(c) of the Act still provides for benefits if the child is ‘in any manner dependent upon the earnings of the employee…’ Sections 7(a) and 7(c) of the Act, when read together, demonstrate the legislature’s intent to provide broad eligibility for benefits to surviving children.” However, Kevin Cronk did not qualify under Section 7(a) or 7(c) of the Act on the date of his father’s death. To allow him to attempt to qualify for benefits two years after his father’s death, and without a showing of dependency, appears to be an expansion of survivorship under the Act.

A Few Thoughts

There is brief mention that although Kevin Cronk was not enrolled in classes at the time of his father's death, he subsequently enrolled in school after a "gap year.” However, the Appellate Court did not provide much more information to describe the basis for their expansion of surviving children. The Commission Dissent indicated that section 7(a) did not require the surviving child be enrolled in accredited educational institution on the date of death, but merely prior to age 25. The claimant in Drives Inc. was enrolled in higher education at the time of death, whereas the claimant in Cronk was not.

A stricter reading of section 7(a) indicates that benefits terminate at the surviving child's 18th birthday unless they are enrolled in an accredited educational institution thereafter, in which case benefits may continue while they are enrolled full-time until their 25th birthday. The only clear exception to the termination of benefits at 18 is either the enrollment in the educational institution and participation on a full-time basis, or proof of physical or mental incapacity. Thus, should the gap year be allowed, there should not be an award of benefits during the gap year, but only during times between the ages of 18 and 25 when the petitioner was enrolled full-time at the educational institutions.

It would appear that the Commission and the Courts are willing to allow gap years and interruptions in the educational process to the age of 25 while permitting the surviving child to receive additional benefits. In practice, allowing "starts and stops" will make it very difficult for the respondent to monitor a surviving child's educational path between the age of 18 and 25. It is recommended that an employer facing such an award and their carrier set up a regular system by which the educational process and verification of enrollment is a condition precedent to continue benefit payments. It is recommended that the claims handler or their vendor require proof each semester of enrollment on a full-time basis as a condition precedent to continued benefits. Thus, the failure to provide enrollment verification will form the basis for suspension of benefits whenever documentation is not provided.