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Kuhl v. Industrial Com.

OPINION FILED JULY 29, 1986.

BETTY J. KUHL, APPELLANT,

v.

THE INDUSTRIAL COMMISSION ET AL. (VAN WINGERDEN, INC., APPELLEE).



Appeal from the Circuit Court of La Salle County; the Hon. Alexander T. Bower, Judge, presiding. JUSTICE KASSERMAN DELIVERED THE OPINION OF THE COURT:

Rehearing denied October 22, 1986.

Petitioner, Betty J. Kuhl, has perfected this appeal from a judgment of the circuit court of La Salle County which refused to award her attorney fees and interest to which she claims she is entitled under sections 19(g) and 19(n) of the Workers' Compensation Act (Ill. Rev. Stat. 1983, ch. 48, par. 138.19(g); Ill. Rev. Stat. 1981, ch. 48, par. 138.19(n); Ill. Rev. Stat. 1983, ch. 48, par. 138.19(n) (as amended by Pub. Act 83-1362)). The facts are as follows.

After an arbitrator found that the petitioner's exposure to an occupational disease left her temporarily totally disabled, on September 28, 1981, petitioner was awarded 177 weeks of temporary total disability benefits at $105.50 per week, and $1,104.20 in medical expenses. On review, which was initiated by her employer, the respondent, the Industrial Commission reduced this award to 32 4/7 weeks at $105.40 per week. On writ of certiorari brought by the petitioner, the circuit court reinstated the arbitrator's award and modified the award so as to include an additional 35 2/7 weeks of temporary total disability benefits and $25.94 in additional medical expenses. On appeal by the respondent, we affirmed the judgment of the circuit court (Kuhl v. Industrial Com. (1984), 126 Ill. App.3d 946, 468 N.E.2d 162) and issued our mandate on December 5, 1984.

On December 5, 1984, the employer's insurance carrier tendered $20,838.51 to petitioner in "final settlement," which was rejected by petitioner as insufficient on December 26, 1984. On January 2, 1985, the insurance carrier tendered $20,838.51 "per arbitrator's decision" and $246.00 for court costs. On January 7, 1985, the petitioner rejected this tender as insufficient. On January 18, 1985, the petitioner filed a motion to enforce the judgment pursuant to section 19(g) of the Workers' Compensation Act. This motion requested the payment of statutory interest under section 19(n) and costs and attorney fees for the entire cause (i.e., from the original arbitration proceeding through the proceeding to enforce the judgment). Subsequent to the filing of the section 19(g) petition but before a hearing was held thereon, respondent tendered $24,967 as settlement in full; however, this tender was also rejected by petitioner.

After the hearing on the motion to enforce the judgment, the circuit court awarded petitioner $650 in attorney fees for filing and pursuing the motion. Although the respondent admitted to twice tendering less than the compensation due, the court denied petitioner's request for attorney fees from the original arbitration proceeding through the first appeal. The circuit court found that section 19(n) of the Workers' Compensation Act was inapplicable; nevertheless, the court awarded interest at 6% per annum upon $18,673.50 from September 21, 1981, through November 21, 1983, and 9% per annum upon $23,772.28 from November 23, 1983, through the date of payment. After the circuit court's order, the petitioner perfected the instant appeal and accepted tender of $30,368.45 without prejudice to the rights of the parties on appeal.

Respondent originally filed no appellate brief; however, we considered the issues raised by petitioner and entered an opinion of this court on December 23 1985. Subsequently, we granted the petition for rehearing of Van Wingerden, Inc., and also granted the Industrial Commission's petition for leave to intervene. The motion of the Illinois State Chamber of Commerce and the Illinois Self-Insurers Association for leave to join in respondent's petition for rehearing and for leave to file briefs as amici curiae was subsequently granted by this court. Having reconsidered the issues raised by rehearing on the instant appeal and having considered the briefs of counsel without further oral argument, the prior opinion of this court is modified on rehearing as follows.

• 1 On appeal, the petitioner contends that the circuit court erred by: (1) finding section 19(n) inapplicable; (2) not prospectively applying the interest rates set forth in section 19(n) as amended; and (3) failing to award attorney fees pursuant to section 19(g).

Section 19(n) originally provided as follows:

"All decisions of the Industrial Commission confirming or increasing an award entered by an arbitrator of the Commission shall bear interest at the rate of 6% per annum from the date of the arbitrator's award on all compensation accrued." (Ill. Rev. Stat. 1981, ch. 48, par. 138.19(n).)

However, section 19(n) of the Act was subsequently amended to provide, in pertinent part:

"After June 30, 1983, decisions of the Industrial Commission reviewing an award of an arbitrator of the Commission, and decisions of the Commission involving cases heard directly by the Commission under paragraph (b) of Section 19, shall draw interest at a rate equal to one percentage point above the average quoted prime rate on short-term commercial loans in effect on the day on which the decision is made, as reported by the Board of Governors of the Federal Reserve System in Statistical Release H. 15 (`Selected Interest Rates'), or any successor Release reporting such rate. Interest shall be drawn from the date of the arbitrator's award, or the date of the Commission's decision in those cases heard directly by it under paragraph (b) of Section 19, on all accrued compensation due the employee through the day prior to the date of payments. However, when a petitioner appeals an award of an Arbitrator or the Commission, and the appeal results in no change in the award, interest shall not further accrue from the date of such appeal." (Ill. Rev. Stat., 1983 Supp., ch. 48, par. 138.19(n), as amended by Pub. Act 83-1051, eff. July 1, 1984.)

By subsequent legislative enactment, section 19(n) of the Act was again amended to provide:

"After June 30, 1984, decisions of the Industrial Commission reviewing an award of an arbitrator of the Commission shall draw interest at a rate equal to the yield on indebtedness issued by the United States Government with a 26-week maturity next previously auctioned on the day on which the decision is filed. Said rate of interest shall be set forth in the Arbitrator's Decision. Interest shall be drawn from the date of the arbitrator's award on all accrued compensation due the employee through the day prior to the date of payments. However, when an employee appeals an award of an Arbitrator or the Commission, and the appeal results in no change or a decrease in the award, ...


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