delivered the opinion of the court:
The main issue presented by this appeal is whether claimant was an “employee entitled to receive disability benefits” within the meaning of section 12 of the Workers’ Compensation Act (the Act) (820 ILCS 305/12 (West 1998)), so that he was required to submit to an employer-requested medical examination to avoid suspension of benefits. We answer in the affirmative.
BACKGROUND
Claimant, Scott Hunter, filed an application for adjustment of claim to recover benefits for a back injury he allegedly sustained while working for R.D. Masonry (Masonry) on August 21, 1998. Masonry disputed the claim and requested that claimant be examined by Dr. Avi Bernstein pursuant to section 12 of the Act. On December 14, 1998, claimant was examined by Dr. Bernstein, and the cause proceeded to a hearing before an arbitrator on March 15, 1999. The arbitrator awarded claimant temporary total disability (TTD) benefits from August 31, 1998, through March 15, 1999, finding Dr. Bernstein’s report unpersuasive.
Thereafter, Masonry filed for review of the arbitrator’s decision to the Industrial Commission (Commission). While review was pending before the Commission, Masonry’s insurance carrier sent a letter to claimant’s attorney on May 19, 1999, requesting that claimant be examined by Dr. Bernstein on May 27, 1999. The claimant did not attend the appointment. Claimant testified that his attorney never told him of the scheduled appointment so he was unaware of it. But claimant’s attorney testified that he instructed claimant not to attend the examination.
On May 28, 1999, Masonry’s insurance carrier sent another letter to claimant’s attorney offering to reschedule an appointment with Dr. Bernstein. Claimant’s attorney responded with a letter on June 3, 1999, informing the insurer that his client would not attend any examination until Masonry complied with the arbitrator’s decision.
On June 24, 1999, the Commission modified the arbitrator’s calculation of claimant’s average weekly wage, but otherwise affirmed the arbitrator’s decision. Masonry filed for judicial review of the Commission’s decision in the circuit court of Cook County. The circuit court recalculated claimant’s average weekly wage, but confirmed the remainder of the Commission’s decision. Masonry appealed, and on December 21, 2000, the appellate court affirmed the circuit court’s decision.
In January 2001, Masonry paid claimant $23,423.82, which covered the TTD award through March 15, 1999, plus interest. Masonry also paid claimant an additional $7,282.58 for TTD benefits for the period running from March 16, 1999, through May 27, 1999. Masonry, however, did not pay any benefits for the period after May 27, 1999, the date of the scheduled medical examination that claimant refused to attend.
Claimant then filed another petition before the arbitrator, this time requesting TTD benefits for the period after May 27, 1999. The arbitrator found, however, that claimant was not entitled to benefits after May 27, 1999, because he refused to attend the scheduled medical examination pursuant to section 12 of the Act, which requires “[a]n employee entitled to receive disability payments” to submit himself or herself to a medical examination if requested by the employer. See 820 ILCS 305/12 (West 1998). Accordingly, the arbitrator entered an order awarding claimant TTD for the period from March 16, 1999, through May 27, 1999.
The Commission, with one commissioner dissenting, ruled that because Masonry was not making TTD payments to claimant at the time of the medical examination scheduled for May 27, 1999, claimant was not “an employee entitled to receive benefits” within the meaning of section 12, and claimant was therefore not required to attend the examination. Consequently, claimant’s right to receive benefits was not subject to suspension under section 12. The Commission further found, however, that because claimant’s need for further treatment and his work status were unknown, Masonry’s demand for the second medical examination was for a proper purpose and not for harassment. Finally, the Commission denied claimant’s request for penalties, finding that Masonry’s conduct was objectively reasonable. The circuit court confirmed the decision of the Commission.
The appellate court, with one member of the five-justice panel dissenting, reversed the circuit court’s confirmation of the Commission’s ruling that claimant was not required to submit to a medical examination.
“According to the Commission, at the time that [Masonry] requested the examination, it had not agreed to pay benefits to the claimant, was appealing the arbitrator’s finding as to liability and was withholding the payment of TTD benefits pending the outcome of that appeal and, as a consequence, the claimant ‘did not know whether he was “entitled to receive benefits.” ’ The Commission seems to imply that, before a claimant is required to submit to a section 12 examination, he must know that he is entitled to receive benefits. However, we find no authority for such a conclusion either in the language of section 12 or any reported case.
Section 12 of the Act requires an employee ‘entitled to receive disability payments’ to submit, at his employer’s request, to a physical examination. As our supreme court held in Jackson Coal Co. v. Industrial Comm’n,295 Ill. 18 , 20-21,128 N.E. 813 (1920):
‘It is not restricted to cases where the employer acknowledges his liability and makes compensation payments. It applies to all cases where the employee is entitled to receive disability payments, and whether he is entitled to them is not dependent on whether the employer acknowledges liability by making the payments.” See also Paradise Coal Co. v. Industrial Comm’n,301 Ill. 504 , 507,134 N.E. 167 (1922).’ ”349 Ill. App. 3d at 756 .
The appellate court remanded the cause to the Commission to reinstate the arbitrator’s decision limiting claimant’s TTD benefits to the period ending May 27, 1999.
ANALYSIS
Claimant initially argues that the Commission made a factual finding as to whether he was an “employee entitled to receive benefits,” and therefore its ruling is subject to the manifest weight of the evidence standard of review. We disagree. The essential facts are undisputed and the matter before us is solely a matter of statutory construction. Accordingly, the case presents a question of law that we review de novo. Sylvester v. Industrial Comm’n,
Claimant argues that if an employer places an employee’s entitlement to receive benefits in dispute by challenging liability, then the employer loses the right to rely on the examination requirement and suspension-of-benefits remedy provided by section 12. Claimant maintains that because Masonry challenged his right to compensation and was not making any disability payments to him at the time it requested the exam in May 1999, Masonry was not within its rights to either request an exam or suspend compensation for failure to comply with the request to attend.
Section 12 provides in relevant part as follows:
“An employee entitled to receive disability payments shall be required, if requested by the employer, to submit himself, at the expense of the employer, for examination to a duly qualified medical practitioner or surgeon selected by the employer, at any time and place reasonably convenient for the employee, either within or without the State of Illinois, for the purpose of determining the nature, extent and probable duration of the injury received by the employee, and for the purpose of ascertaining the amount of compensation which may be due the employee from time to time for disability according to the provisions of this Act. ***
sk * *
If the employee refuses so to submit himself to examination or unnecessarily obstructs the same, his right to compensation payments shall be temporarily suspended until such examination shall have taken place, and no compensation shall be payable under this Act for such period.” 820 ILCS 305/12 (West 1998).
The principles to he applied in construing a statute are well settled. Our primary goal is to ascertain and give effect to the intention of the legislature, and to this end all other rules of construction are subordinate. Metzger v. DaRosa,
It is also a well-established principle of statutory construction that “ ‘where terms used in [a] statute have acquired a settled meaning through judicial construction and are retained in subsequent amendments or reenactments of the statute, they are to be understood and interpreted in the same sense theretofore attributed to them by the court unless a contrary intention of the legislature is made clear.’ ” In re Marriage of O’Neill,
Applying the above-mentioned principles to the present case leads inexorably to the conclusion that the legislature did not intend that an employer who denies liability and declines to make payments in a workers’ compensation case be precluded from availing itself of the independent medical examination provision of section 12. The same argument that claimant makes here was soundly rejected by this court shortly after the Workmen’s Compensation Act was first passed in Illinois in 1913. In Jackson Coal Co. v. Industrial Comm’n,
“The statute requires an employee ‘entitled to receive disability payments’ to submit, at the request of the employer, to a physical examination. It is not restricted to cases where the employer acknowledges his liability and makes compensation payments. It applies to all cases where the employee is entitled to receive disability payments, and whether he is entitled to them is not dependent on whether the employer acknowledges liability by making payments. That the provisions of section 12 must be complied with by the employee to entitle him to the benefits of the act was decided in Hafer Washed Coal Co. v. Industrial Com.293 Ill. 425 .” Jackson Coal Co.,295 Ill. at 20-21 .
The holding of Jackson Coal was followed by this court in subsequent cases. See Pocahontas Mining Co. v. Industrial Comm’n,
The critical language of section 12 at issue in this case has remained unchanged since the inception of the Act in 1913, despite numerous reenactments. The Act was amended in 1925 and again in 1927, but neither amendment changed the crucial language providing that “ ‘[a]n employee entitled to receive disability payments shall be required, if requested by the employer, to submit himself at the expense of the employer for examination to a duly qualified medical practitioner or surgeon selected by the employer, at a time and place reasonably convenient for the employee ***.’ ” Ill. Ann. Stat., ch. 48, par. 149, Historical Note, at 511 (Smith-Hurd 1935); see also 820 ILCS 305/12 (West 1998). The 1925 amendment merely omitted the words “ ‘as soon as practicable after the injury, and also one week after the first examination and thereafter at intervals not oftener than once every four weeks, which examination shall be’ ” after the words “ ‘at any time and place reasonably convenient for the employee,’ ” and preceding the words “ ‘for the purpose of determining the nature, extent and probable duration of the injury received by the employee ***.’ ” Ill. Ann. Stat., ch. 48, par. 149, Historical Note, at 511 (Smith-Hurd 1935). The 1927 amendment simply added a proviso requiring the employer to pay in advance sufficient money to defray traveling expenses, cost of meals and loss of wages where an employer requires a physical examination. Ill. Ann. Stat., ch. 48, par. 149, Historical Note, at 511 (Smith-Hurd 1935). Because the General Assembly has retained the identical language requiring an “employee entitled to disability payments” to submit himself for examination to avoid suspension of benefits, rather than changing this language in response to the judiciary’s construction of the statute, we believe that the cases discussed above properly express the legislative intent.
Claimant argues that because Masonry denied liability from the outset, it should be prevented from asserting that he was an employee entitled to receive benefits for purposes of section 12. Claimant’s argument, of course, ignores that by filing an adjustment of claim with the arbitrator for his injury, claimant asserted from the outset that he was an employee entitled to compensation payments.
Claimant also argues that any right to examination by an employer under section 12 should be limited to a single examination. Claimant’s interpretation of the statute, however, would lead to an absurd result. Section 12 provides that the purpose of medically examining an injured employee at the employer’s request is to determine the nature, extent and probable duration of the injury and to ascertain the amount of compensation that may be due from time to time for disability. 820 ILCS 305/12 (West 1998). If we were to accept claimant’s interpretation, an employer would not be able to address these issues as they arose from time to time. Section 12, when initially enacted, contained time intervals as to when a further examination could take place. 1913 Ill. Laws 337, 346. The General Assembly subsequently removed the time limits, and thus the need for a medical examination is not now limited to any specific time frame and has never been limited to any specific number. See 820 ILCS 305/12 (West 1998); 1925 Ill. Laws 378, 387. The need for a medical examination is instead tied to the need to address the nature, extent and duration of the injury and the amount of compensation. (820 ILCS 305/12 (West 1998)). Furthermore, no Illinois court has ever stated that the number of section 12 examinations is limited to any specific amount, though it has been continuously noted that section 12 cannot be used to harass or oppress an employee by unnecessary examinations (King v. Industrial Comm’n,
Our conclusion that the right to request a section 12 examination is not limited to situations where an employer is paying compensation payments is consistent with the requirements of our Act as whole. Section 19(b) of the Act provides that “[t]he arbitrator may find that the disabling condition is temporary *** and may order the payment of compensation up to the date of the hearing, which award shall be reviewable and enforceable in the same manner as other awards, and in no instance be a bar to a further hearing and determination of a further amount of temporary total compensation or of compensation for permanent disability ***.” 820 ILCS 305/19(b) (West 1998). Thus, it has been held that a second arbitration hearing involves different legal and factual issues than a first arbitration hearing addressing TTD, as the first hearing addresses a claimant’s right to TTD up to the date of the first hearing. National Wrecking Co. v. Industrial Comm’n,
While it is true that payment of compensation by an employer to an injured employee does not constitute an admission of the employer’s liability to pay compensation (820 ILCS 305/8(b)(7) (West 1998)), it is also true that our Act does not require payment of temporary compensation prior to a final determination of liability on review where reasonable grounds exist to challenge that liability (Avon Products, Inc. v. Industrial Comm’n,
The rule that the employer may delay payment of TTD for a period subsequent to a section 19(b) determination based on a good-faith belief that the employee’s condition has improved or stabilized is not without safeguards, however, because the purpose of the Act is to compensate claimants as early as possible for income lost due to job-related injuries. Board of Education,
One of the ways that an employer may provide itself with an objectively reasonable belief that an employee’s condition has stabilized is through an employer-requested medical examination under section 12. Board of Education,
Thus, the statutory scheme as a whole indicates that the employer is entitled to a medical examination at its request to address the propriety of TTD for a period beyond that covered by an initial 19(b) arbitration hearing, even where the employer delays payment until the question of liability for the initial TTD period is finally resolved. This is precisely what occurred in the instant case. Claimant was injured in August 1998 and submitted to an employer-requested examination by Dr. Bernstein in December of that year. In March 1999, the arbitrator awarded claimant TTD up to the date of the hearing. In May 1999, over five months after the initial examination by Dr. Bernstein, Masonry requested that claimant be reevaluated by Dr. Bernstein. Masonry at this point was entitled to this examination so that it could make an independent assessment as to whether claimant’s back condition had stabilized or improved. Indeed, the Commission found that because claimant’s need for further treatment and work status were unknown in May 1999, Masonry’s demand for a second medical examination was not for an improper purpose or for harassment of claimant. The Commission also denied claimant an award of penalties, finding that Masonry’s conduct was objectively reasonable. These were questions of fact properly determined by the Commission and its determinations thereon were not against the manifest weight of the evidence. See Keystone Steel & Wire Co. v. Industrial Comm’n,
The claimant relies upon Fencl-Tufo Chevrolet, Inc. v. Industrial Comm’n,
The appellate court in Fencl-Tufo found that there was little to gain from the second examination and that the employer had proceeded in a manner that did not warrant compliance. Fencl-Tufo,
We agree with the appellate court that Fencl-Tufo is readily distinguishable. Unlike the present case, the employer in Fencl-Tufo suspended payments based on an investigator’s report, not on the failure to attend a medical examination. More importantly, the employer had a medical examination at its request, which indicated that the claimant should refrain from work for six months. Despite this, the employer requested a second examination within half that time. All of this took place in the context of a single section 19(b) proceeding, and the court found that the employer was proceeding in a manner that did not warrant compliance. In contrast, the instant case involved two section 19(b) proceedings, and the Commission specifically found that the May 1999 request for an examination was not for an improper purpose.
Furthermore, it appears that the Fencl-Tufo court misapprehended an employer’s ability to delay payment where it has an objectively reasonable belief that the employee is not entitled to compensation payments. Relying on Fuller v. Industrial Comm’n,
King v. Industrial Comm’n,
“Of course section 12 should not be used for the improper purpose of harassing claimants or in a wrongful attempt to cut off a claimant’s compensation. These mere possibilities, though, do not persuade us to disregard the plain meaning of the [Act]. *** A medical exam will often be the best method of ascertaining whether the claimant currently is able to work and able to earn within the meaning of section 8(f). We note, moreover, that claimant’s fear that employers will improperly utilize section 12 in an attempt to cut off liability fails to acknowledge the manner in which section 12 operates. Section 12 cannot be utilized to suspend a claimant’s compensation unless the claimant refuses to comply with a proper request for a medical exam. [Citation.] A claimant, therefore, can avoid a suspension of compensation under section 12 through compliance.” King,189 Ill. 2d at 176 .
Likewise, claimant in the instant case could have avoided any issue as to suspension of benefits after May 27, 1999, by simply complying with the request for examination.
Navistar International Transportation Corp. v. Industrial Comm’n,
Navistar also addressed the employer’s alternative argument that it was entitled to suspend the claimant’s benefits because the claimant failed to attend an exam scheduled two months after the employer had terminated payments. The court rejected this argument on the grounds that the employer admitted that it did not tender the travel expenses required by section 12, and it had already suspended payments at the time it requested the exam. Navistar,
Navistar is distinguishable from the present case as Masonry suspended payments based on the failure to attend a medical exam, not the failure to provide medical information. Although claimant argues for the first time before this court that Masonry failed to tender travel expenses, he failed to raise this argument before the Commission. Arguments not raised before the Commission are waived on appeal. Thomas v. Industrial Comm’n,
Navistar is also distinguishable because it involved a final permanent disability award that was entered in 1987, which the employer attempted to unilaterally suspend eight years later, without first petitioning for suspension, as the employer did in King. Navistar deemed a unilateral suspension of permanent disability payments in this context as per se unreasonable and vexatious (Navistar,
But, for the reasons previously stated, we find that the per se rule against suspension of payments announced in Navistar, whatever its merits, does not apply in the context of a TTD proceeding under section 19(b), where the employer is legitimately seeking a medical exam to determine if the claimant’s temporary condition has improved or stabilized. In such cases, an injured employee can easily avoid any question as to his right to further TTD by complying with the request for the exam. If an employee refuses to submit to a proper request for a medical exam under section 12, his “right to compensation payments shall be temporarily suspended until such examination shall have taken place, and no compensation shall be payable under [the] Act for such period.” 820 ILCS 305/12 (West 1998).
CONCLUSION
For the foregoing reasons, we hold that the appellate court properly determined that claimant was required to submit himself for examination in May 1999 to avoid suspension of his benefits. Accordingly, we affirm the appellate court’s judgment, which reversed the judgment of the circuit court and set aside the decision of the Commission.
Appellate court judgment affirmed.