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Killian v. Industrial Com.





Appeal from the Circuit Court of Cook County; the Hon. Alfred T. Walsh, Judge, presiding.


Rehearing denied November 19, 1986.

Chicago Extruded Metals, Inc. (employer), appeals from a judgment of the circuit court of Cook County reversing that portion of the award of the Industrial Commission (Commission) allowing employer a 6% credit for a previous payment to Darrell Killian (claimant) for a 1975 disability. Employer argues that the circuit court erred as a matter of law because section 8(e)(17) of the Worker's Compensation Act (the Act) (Ill. Rev. Stat. 1983, ch. 48, par. 138.8(e)(17)) authorizes a credit for payments previously made to the claimant for injuries causing permanent disabilities to the same body part. We affirm.

Claimant first sustained an employment-related back injury while working for employer on February 6, 1975. On July 15, 1977, claimant and employer entered into a settlement agreement for the February 1975 injury. The agreement stated that the $2,668.73 amount paid to claimant represented a "7 1/2% loss of use of right leg and 7 1/2% loss of use of left leg."

Claimant thereafter twice reinjured his back while working for employer. These accidents, which occurred on March 16, 1979, and January 15, 1980, provide the basis for the instant appeal. Both injuries involved claimant's lower back. Claimant was hospitalized after each accident.

Arbitrator Norman Brown rendered his decision in the March 16, 1979, accident (No. 79 WC 52690) and in the January 15, 1980, accident (No. 80 WC 4617) on the same day, December 26, 1980. The arbitrator filed a corrected decision in cause No. 80 WC 4617 on June 24, 1981. As a result of these accidental injuries, the arbitrator found that claimant had sustained a 20% partial disability for which he was entitled to receive the sum of $220.53 per week for a period of 100 weeks pursuant to section 8(d)(2) of the Act (Ill. Rev. Stat. 1983, ch. 48 par. 138.8(d)(2)). The arbitrator apparently did not rule on the issue of employer's entitlement to a credit.

Both parties filed for review of the arbitrator's decision. On May 14, 1982, the Commission ordered that an impartial medical expert examine claimant and review the existing medical records. The doctor filed his report with the Commission on October 22, 1982.

In its written decision and opinion on review dated August 30, 1984, the Commission affirmed the arbitrator's decision in cause No. 79 WC 52690, in which claimant's award for temporary total incapacity resulting from the March 16, 1979, accident had been adjudicated. With respect to claimant's permanent partial disability, which the arbitrator resolved for both the 1979 and 1980 accidents in his decision on cause No. 80 WC 4617, the Commission concluded claimant was permanently disabled to the extent of 10% as a result of both accidents. However, the Commission modified the arbitrator's decision by finding that employer was entitled to a credit "equivalent to 6% loss under section 8(d)(2) by reason of payment of compensation to that extent pursuant to a prior award."

Claimant filed a writ of certiorari with the circuit court of Cook County, and on September 12, 1985, circuit court judge Alfred T. Walsh reversed the Commission's decision with regard to the credit, finding that the credit to employer was contrary to the law. Employer thereafter filed a timely notice of appeal on September 25, 1985.

Employer makes only one argument in support of reversal of the trial court's order. Employer argues in its brief to this court that it is entitled to a credit under section 8(e)(17) in this action for its payment of compensation for claimant's 1975 lower-back injury since the 1979 and 1980 work injuries and resulting permanent disability affected the same part of the body.

Section 8(e)(17) of the Act provides:

"In computing the compensation to be paid to any employee who, before the accident for which he claims compensation, had before that time sustained an injury resulting in the loss by amputation or partial loss by amputation of any member, including hand, arm, thumb or fingers, leg, foot or any toes, such loss or partial loss of any such member shall be deducted from any award made for the subsequent injury. For the permanent loss of use or the permanent partial loss of use of any such member or the partial loss of sight of an eye, for which compensation has been paid, then such loss shall be taken into consideration and deducted from any award for the subsequent injury." (Ill. Rev. Stat. 1983, ch. 48, par. 183.8(e)(17).)

Our supreme court has interpreted section 8(e)(17) as providing a credit only when the injury occurs to the same member. Page Enterprises, Inc. v. Industrial Com. (1980), 78 Ill.2d 287, 291; see also Isaacs v. Industrial Com. (1985), 138 Ill. App.3d 392, 396, 485 N.E.2d 1093, 1097.

• 1 Resolution of the issue raised on appeal requires this court to interpret the language of section 8(e); specifically, the meaning of the term "member" as used in section 8(e)(17) and throughout section 8(e). The general rule is that an employer takes his employees as he finds them and must pay full compensation for injuries which result in industrial disability. (Freeman United Coal Mining Co. v. Industrial Com. (1984), 99 Ill.2d 487, 496.) Credits operate as partial exceptions to the liabilities created by the Act, and should be construed narrowly where granted and ...

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