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Konczak v. Johnson Outboards

OPINION FILED AUGUST 4, 1982.

NORB J. KONCZAK, PLAINTIFF-APPELLEE,

v.

JOHNSON OUTBOARDS, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Lake County; the Hon. Terrence J. Brady, Judge, presiding.

JUSTICE NASH DELIVERED THE OPINION OF THE COURT:

Defendant, Johnson Outboards, a division of Outboard Marine Corporation (Johnson Outboards), appeals from the judgment of the Circuit Court of Lake County entered against it and in favor of the plaintiff, Norb J. Konczak, pursuant to section 19(g) of the Workmen's Compensation Act (Act). (Ill. Rev. Stat. 1979, ch. 48, par. 138.19(g).) We affirm.

On July 25, 1977, Konczak was injured in the course of his employment with Johnson Outboards. Proceedings were initiated before the Illinois Industrial Commission (Commission) for benefits pursuant to the Act and one of the Commission's arbitrators filed his decision regarding Konczak's claim on November 30, 1979. The arbitrator's decision provided, in pertinent part:

"That necessary first aid, medical, surgical and hospital services have been provided in part by the Respondent [Johnson Outboards] herein.

That said Petitioner [Konczak] is now entitled to have and receive from the Respondent * * * the further sum of $6,824.57 for necessary medical, surgical and hospital services, as provided in paragraph (a) of Section 8." (Emphasis added.)

On appeal, the Commission affirmed the arbitrator's findings in a decision filed on April 8, 1981. The decision on reviw provided in pertinent part:

"The Commission affirms the decision of the Arbitrator based on the election of Respondent and Petitioner not to file a summary setting forth any claim of error in the Arbitrator's decision. The Commission therefore concluded that the decision of the arbitrator herein is correct.

IT IS FURTHER ORDERED BY THE COMMISSION that the Respondent shall have credit for all amounts paid, if any, to or on behalf of the Petitioner on account of said accidental injury." (Emphasis added.)

Neither of the parties petitioned the circuit court for a writ of certiorari to the Commission for review of the foregoing decision as allowed by section 19(f)(1) of the Act. Ill. Rev. Stat. 1979, ch. 48, par. 138.19(f)(1).

Subsequently, on May 27, 1981, Konczak filed a petition for judgment pursuant to section 19(g) of the Act (Ill. Rev. Stat. 1979, ch. 48, par. 138.19(g)) seeking the entry of a judgment against Johnson Outboards in the amount of the arbitrator's award ($6,824.57) plus attorney fees and costs. Konczak's petition alleged the existence of the award (accompanied by certified copies of both the arbitrator's and Commission's decision), the failure of the parties to appeal the award, proper notice pursuant to statute, the specific amounts claimed and the failure of Johnson Outboards to pay the award.

Johnson Outboards filed its answer and affirmative defense on July 24, 1981. While the answer admitted most of the allegations of Konczak's petition, Johnson Outboards contended that it had paid the Commission's award in full through payments made to Konczak from an insurance plan prior to the arbitrator's decision. However, Johnson Outboards acknowledges that no payments were made on those medical expenses incorporated into the award subsequent to the entry of the arbitrator's decision.

The parties filed cross-motions for summary judgment. On October 23, 1981, the court entered judgment in favor of Konczak in the amount of $11,574.28 constituting the Commission's award, attorney fees and costs. On appeal, Johnson Outboards contends that (1) Konczak's failure to reply to its affirmative defense of payment is an admission of payment thus precluding summary judgment and (2) in any event, it should have been allowed the opportunity to prove payment as a defense to the section 19(g) proceeding and, accordingly, the summary judgment was improper.

Section 19(g) of the Act provides, in pertinent part:

"(g) Except in the case of a claim against the State of Illinois, either party may present a certified copy of the award of the Arbitrator, or a certified copy of the decision of the Commission when the same has become final, when no proceedings for review are pending, providing for the payment of compensation according to this Act, to the Circuit Court of the county in which such accident occurred or either of the parties are residents, whereupon the court shall render a judgment in accordance therewith. In case where the employer refuses to pay compensation according to such final award or such final decision upon which such judgment is entered the court shall in entering judgment thereon, tax as costs against him the reasonable costs and attorney fees in the arbitration proceedings and in the court entering the judgment for the person in whose favor the judgment is entered, which judgment and costs taxed as therein ...


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