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Smith v. Gen Co. Corp.

APRIL 30, 1973.

PHILLIP E. SMITH, PETITIONER-APPELLEE,

v.

GEN CO. CORPORATION, D/B/A DECK OIL COMPANY, ET AL., RESPONDENTS-APPELLANTS.



APPEAL from the Circuit Court of Henry County; the Hon. DAN J. McNEAL, Judge, presiding.

MR. JUSTICE DIXON DELIVERED THE OPINION OF THE COURT:

On May 17, 1972 petitioner-employee Phillip E. Smith applied to the Circuit Court of Henry County under Ill. Rev. Stat. 1971, ch. 48, sec. 138.19(g) for judgment, against the employer-respondent, Gen Co. Corporation, and its insurer, The North River Insurance Company, on a final award of the Industrial Commission entered March 28, 1972 to enforce collection of amounts that had accrued and were due when no payment or tender was made by respondents after many requests. After hearing, the Circuit Court included in its judgment for petitioner, not only amounts that had accrued under the award to the date of judgment but also the additional sum of $3396.45 for the employee's costs and attorney fees both in proceedings before the Industrial Commission and in the Circuit Court. Appellants complain only of that portion of the judgment which allowed attorney's fees and costs. Since no review of an order of the Industrial Commission is involved, appellants' direct appeal to the Supreme Court was transferred to this Court.

The appeal involves construction of section 19(g) of the Workmen's Compensation Act (Ill. Rev. Stat. 1971, ch. 48, sec. 138.19(g)), applicable portions of which read:

"* * * either party may present a certified copy of the * * * decision of the Commission, when the same has become final, * * * providing for the payment of compensation * * * to the Circuit Court * * *. Whereupon said court shall render a judgment * *. In case where the employer refuses to pay compensation according to such final award * * * the court shall * * * tax as costs * * * the reasonable costs and attorney fees in the arbitration proceedings and in the court entering the judgment * * *.

Judgment shall not be entered until 15 days' notice * * * shall be served * * *."

"The purpose of section 19(g) is to permit speedy judgment in cases where there has been a refusal to pay the award and a need to reduce the award to judgment to compel its payment. A further purpose is to compensate a claimant who is compelled to incur additional expense by reason of the refusal to pay an award by allowing him court costs and attorney fees." Franklin v. Wellco Co., 5 Ill. App.3d 731.

• 1 The employee sustained brain and skull injuries on Oct. 24, 1967 while employed at respondents gasoline station at Geneseo in Henry County. Eventually in its Decision on Review entered March 28, 1972 the Industrial Commission held the employee to be entitled to an award for permanent total disability in the amount of $56 per week for 267 weeks plus 1 week at $48 ($15,000 total) and thereafter a lifetime pension of $150 per month. The March 28 award became final April 18, 1972. The amount owed under the award at the time of its entry was $7989.38. Interest began accruing on this amount from and after March 28, 1972. (Proctor Community Hospital v. Industrial Com., 50 Ill.2d 7.) Moreover, during every week following March 28, 1972 an additional $56 payment became due until the full $15,000 was paid.

After the award became final the employee's attorney made repeated requests for payment (4 in all) and nothing was forthcoming, not even the $56 weekly payments. Finally, application was made to the Circuit Court for judgment on the award under sec. 138.19(g). The filing fee was $31.

The next day a representative of the insurer offered a draft in the amount of $8288 with a condition that endorsement constituted a release in full settlement. There was then due $8447 and the offer was refused.

The following week the insurer offered drafts with the condition that endorsement was a full release and which did not contain accrued interest. The offer was refused.

Nothing further occurred until the hearing on the application for judgment 9 days later. During its case the insurer offered its earlier drafts and an additional draft for interest accrued only to May 23 ($73.50) when $85.36 interest was in fact due. No attempt to tender court costs was made and an additional weekly payment of $56 though due was not tendered.

After the hearing was concluded the trial court entered judgment for the full amount due ($8578.74) and taxed as costs $3396.45 itemized as follows:

$165.45 transcript of record in Industrial Commission on ...


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