Appeal from the Circuit Court of St. Clair County, the Hon.
Richard Goldenhersh, Judge, presiding.
CHIEF JUSTICE RYAN DELIVERED THE OPINION OF THE COURT:
This action is a direct appeal (73 Ill.2d R. 302(a)) by respondent, St. Mary's Hospital, of an award of attorney fees pursuant to section 16 of the Workmen's Compensation Act (Ill. Rev. Stat. 1977, ch. 48, par. 138.16), and of the amount of an award of temporary total disability.
The essential facts are not in dispute. Petitioner, Frankie Childress, a nurse's aide at St. Mary's Hospital, injured her back on May 13, 1978, while lifting a patient into a wheelchair. She continued to work for approximately a week and was then hospitalized at St. Mary's for her back injury. She was off work for approximately five months, during which time respondent voluntarily paid her temporary total disability benefits.
Thereafter, petitioner was released by her doctor to return to work on "light duty." She worked approximately one week until respondent informed her there were no light-duty jobs available. Respondent then resumed payment of temporary total disability benefits to petitioner.
On February 6, 1979, petitioner was examined by respondent's physician, Dr. Michael Winer. On the basis of his examination Dr. Winer determined that petitioner was able to return to work without any restrictions. Petitioner did not return to work, however, until July of that year.
After a hearing, the arbitrator found that petitioner's condition had not yet reached permanent status and awarded her 48 6/7 weeks of compensation pursuant to section 19(b) (Ill. Rev. Stat. 1977, ch. 48, par. 138.19(b)). The period of temporary total disability was held to have occurred, intermittently, from May 13, 1978, the date of the injury, through May 8, 1979, the date of the hearing. The arbitrator also awarded petitioner $394.75 for necessary medical expenses. The award was entered on June 22, 1979. Shortly thereafter petitioner Childress returned to work.
On review before the Industrial Commission, the award of temporary total disability was reduced to 38 3/7 weeks, corresponding to the date respondent's physician determined petitioner was able to return to work without restrictions, February 6, 1979. The Commission also affirmed the award of $394.75 in necessary medical expenses and ordered respondent to pay $78.79 in attorney fees, pursuant to section 16 of the Act, as a penalty for unreasonable and vexatious delay in the payment of medical expenses.
On certiorari, the circuit court of St. Clair County increased the award of temporary total disability to 48 6/7 weeks, the amount awarded by the arbitrator, and also increased the amount of attorney fees awarded by the Industrial Commission to $950.
Two issues are raised on appeal before this court: (1) whether the award of 38 3/7 weeks' temporary total disability by the Industrial Commission is against the manifest weight of the evidence, and (2) whether the award of attorney fees for unreasonable and vexatious delay in the payment of medical expenses is proper under section 16 of the Act.
With respect to the first issue, in addition to the testimony of petitioner, conflicting medical evidence was presented to the arbitrator and subsequently reviewed by the Commission. The petitioner presented the testimony of Dr. J.H. Monrow, Jr., by evidence deposition. Dr. Monrow is an osteopathic physician who examined petitioner at the request of her attorney. Dr. Monrow diagnosed petitioner's condition and evaluated it as permanent. In his opinion, petitioner would not be employable in the open labor market because she is unable to perform "manual duty." On cross-examination, Dr. Monrow testified that petitioner would be able to perform light work with no lifting, i.e., "writing, answering a phone, or something of this nature." The date of Dr. Monrow's examination was January 10, 1979.
On behalf of respondent, St. Mary's Hospital, the evidence deposition of Dr. Michael Winer was read into the record. Dr. Winer is an orthopedic surgeon who examined petitioner on February 6, 1979, at respondent's request. Dr. Winer's diagnosis was low back pain, with no objective evidence of nerve-root compression, which he classified as lumbosacral strain. He further testified that in his opinion Frankie Childress was at that time able to work without restriction or limitation.
Resolving conflicts in the evidence, drawing inferences from testimony, and determining the credibility of witnesses and the weight to be given to their testimony are matters within the province of the Industrial Commission, and this court will not disturb the Commission's findings unless they are against the manifest weight of the evidence. (Elliott v. Industrial Com. (1982), 91 Ill.2d 100, 107; Hart Carter Co. v. Industrial Com. (1982), 89 Ill.2d 487, 494.) The conflict in the instant case consists of differing medical opinions as to whether the employee's condition permitted her to return to work. The resolution of conflicting medical opinions is clearly within the purview of the Industrial Commission. (Avon Products, Inc. v. Industrial Com. (1980), 82 Ill.2d 297, 300; Eagle Sheet Metal Co. v. Industrial Com. (1980), 81 Ill.2d 31, 36.) Here, it was clearly not against the manifest weight of the evidence for the Commission to accept the evaluation of the physician who testified on behalf of the employer. Accordingly, the Commission's award of temporary total disability for 38 3/7 weeks is affirmed.
With respect to the second issue, the employer argues that an award of attorney fees for unreasonable and vexatious delay in the payment of medical expenses is not proper under section 16 of the Act (Ill. Rev. Stat. 1977, ch. 48, par. 138.16). It is the employer's position that an award of attorney fees under that section is only proper for an unreasonable and vexatious delay in the payment of ...