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09/04/87 National Lock Hardware, v. the Industrial Commission

September 4, 1987

NATIONAL LOCK HARDWARE, APPELLANT AND CROSS-APPELLEE

v.

THE INDUSTRIAL COMMISSION ET AL. (ANNA A. CHILDS, APPELLEE AND CROSS-APPELLANT)



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT, INDUSTRIAL COMMISSION DIVISION

520 N.E.2d 43, 166 Ill. App. 3d 601, 117 Ill. Dec. 53 1987.IL.1289

Appeal from the Circuit Court of Winnebago County; the Hon. Alford R. Penniman, Judge, presiding.

APPELLATE Judges:

JUSTICE WOODWARD delivered the opinion of the court. McCULLOUGH, McNAMARA, and KASSERMAN, JJ., concur. PRESIDING JUSTICE BARRY, Dissenting.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WOODWARD

The employer, National Lock Hardware, has perfected this appeal from a judgment of the circuit court of Winnebago County which awarded the employee, Anna A. Childs, interest on an award pursuant to section 19(n) of the Workers' Compensation Act (Ill. Rev. Stat. 1985, ch. 48, par. 138.19(n)). The employee has filed a cross-appeal contending that the award of interest should have run from the date of the arbitrator's award rather than the date of the award by the Industrial Commission. The pertinent facts are as follows.

On June 29, 1982, following a hearing, the arbitrator awarded the employee 64 1/7 weeks of temporary total disability, 60 weeks of permanent partial disability, and $481.88 in medical expenses. The employer appealed the arbitrator's decision to the Industrial Commission. On February 6, 1984, the Commission modified the arbitrator's decision and awarded the employee 58 3/7 weeks of temporary total disability, 60 weeks of permanent partial disability, and $481.88 in medical expenses. The employer appealed the Commission's decision to the circuit court, which confirmed the decision. On January 3, 1986, the appellate court affirmed the decision of the Industrial Commission.

On February 11, 1986, the employee filed a petition in the circuit court of Winnebago County, pursuant to section 19(g) of the Act, seeking judgment in the amount of the award plus interest, costs, and attorney fees. On February 12, 1986, the employer tendered a draft in the amount of $19,667.51 to the employee. The employee refused to accept the draft and returned it to the employer. On February 19, 1986, the employer tendered a second draft in the amount of $17,862.15, which the employee accepted without prejudice to claim additional interest. The draft represented the principal amount due plus interest at 6% from February 6, 1984 (the date of the Industrial Commission's award), to February 20, 1986.

On April 24, 1986, after the presentation of briefs and argument, the circuit court awarded the employee interest on the decision of the Industrial Commission from July 1, 1983, to June 30, 1984, at the rate of 1% over prime (12.5%) and from July 1, 1984, to February 20, 1986, at the T-bill rate in effect on July 1, 1984 (10.49%), for a total award of $20,596.92. The circuit court denied the employee's request for attorney fees. This appeal followed.

The employee has conceded that since the arbitrator's award was entered prior to July 1, 1984, the original provision of section 19(n) (Ill. Rev. Stat. 1981, ch. 48, par 138.19(n)) controls this case. (Kuhl v. Industrial Comm'n (1986), 147 Ill. App. 3d 519, 522-24.) The then section 19(n) stated 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." (Emphasis added.) Ill. Rev. Stat. 1981, ch. 48, par. 138.19(n).

In the case before us, the Industrial Commission modified the award to the employee by decreasing the amount of temporary total disability. This modification by the Industrial Commission was affirmed on review by both the circuit court and the appellate court. Section 19(n) is applicable to all decisions which confirmed or increased an arbitrator's award. (Kuhl v. Industrial Comm'n (1986), 147 Ill. App. 3d 519, 524-25.) The employee argues that the decrease in the award was due to the fact that the arbitrator awarded temporary total disability until such time as the treating physician authorized her return to work, whereas the Commission terminated the disability as of the date she went on regular retirement. That explanation for the decrease notwithstanding, the fact remains that the award was decreased. Nor does the fact that the employer here sought review of the award compel a different result. (See Kuhl v. Industrial Comm'n (1986), 147 Ill. App. 3d 519, 498 N.E.2d 240.) Since in the case before us, the award was decreased, we hold that section 19(n) is not applicable, and the award of interest pursuant to section 19(n) was error.

The judgment of the circuit court of Winnebago ...


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