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09/08/87 Earl D. Bray, v. the Industrial Commission

September 8, 1987

EARL D. BRAY, APPELLEE

v.

THE INDUSTRIAL COMMISSION ET AL. (UNITED STATES STEEL CORPORATION, APPELLANT)



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, INDUSTRIAL COMMISSION DIVISION

513 N.E.2d 1045, 161 Ill. App. 3d 87, 112 Ill. Dec. 436

Appeal from the Circuit Court of Cook County; the Hon. Irwin Cohen, Judge, presiding. 1987.IL.1301

APPELLATE Judges:

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

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WOODWARD

The employee, Earl D. Bray, was awarded benefits under sections 8(a) and 19(h) of the Illinois Workers' Compensation Act (Act) (Ill. Rev. Stat. 1981, ch. 48, pars. 138.8(a), 138.19(h)) by the Industrial Commission. The employer, United States Steel Corporation, appealed and the Commission's decision was confirmed in part and set aside in part by the appellate court. (United States Steel Corp. v. Industrial Com. (1985), 133 Ill. App. 3d 811 (hereinafter referred to as Bray I).) Thereafter, the employee filed an application for judgment under section 19(g) of the Act (Ill. Rev. Stat. 1981, ch. 48, par. 138.19(g)) seeking interest at 9% per annum under the interest provisions of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2-1303) from the date of the Industrial Commission's award. The circuit court denied the employer's motion to quash and awarded the employee judgment for interest at 9% per annum from the date of the award. The employer appeals.

The employer raises two issues on appeal, namely: whether section 19(g) applies where the Commission's award was set aside in part on appeal and where the remaining portions have been paid in full prior to the filing of the application for judgment; and whether the interest provisions of the Code of Civil Procedure are applicable to an award made under the Workers' Compensation Act.

The relevant facts in this case are succinctly set forth in this court's opinion in the first appeal involving these parties (United States Steel Corp. v. Industrial Com. (1985), 133 Ill. App. 3d 811) and, therefore, will not be restated here. However, by way of background, in 1970 the employee had been awarded benefits for an employment-related injury. In 1974, he requested that the award be reviewed by the Industrial Commission pursuant to section 19(h) on the ground that his disability had subsequently increased. On June 1, 1982, the Industrial Commission awarded the employee total permanent disability benefits, medical expenses, and interest under section 19(n) of the Act. (Ill. Rev. Stat. 1981, ch. 48, par. 138.19(n).) The employer appealed.

On appeal this court affirmed the award of permanent disability benefits and medical expenses, but reversed the award of interest, stating as follows:

"We conclude that section 19(n) was intended to apply to decisions of the Industrial Commission on review under section 19(e) and not to decisions in proceedings brought under section 19(h), as was the instant case. A proceeding under 19(h) involves the review by the Industrial Commission of an award on the grounds that the disability of the employer [ sic ] has recurred, increased, diminished or ended since the original award. Such proceedings are commenced by petition directly to the Industrial Commission; and there is no arbitrator's award to be confirmed or reduced or increased. Any adjustment made to an employee's compensation payments is based on a change in condition occurring after the original award, and the existence of such a change is determined by the Industrial Commission without the intervention of the proceedings before the arbitrator. The right to the additional compensation accrues only after the award of the Industrial Commission. Section 19(n) has been construed as to not entitle an employee to interest upon payments which accrue after the arbitrator's award (Folks v. Hurlbert's Wholesale Siding & Roofing, Inc. (1981), 93 Ill. App. 3d 19, 21, 416 N.E.2d 745, 747); therefore, there are no grounds for the award of interest in the case at bar. Our Conclusion in this regard also draws support from the fact that, because the ultimate adjustment in compensation, if any, is not known until the Industrial Commission rules, it is impossible for an employer to make tender thereof as provided in section 19(n) in order to terminate the accrual of interest. The award of interest prior to the entry of that award is impermissible. Interlake Steel Corp. v. Industrial Com. (1975), 60 Ill. 2d 255, 262-263, 326 N.E.2d 744, 748." United States Steel Corp v. Industrial Com. (1985), 133 Ill. App. 3d 811, 819.

On July 17, 1985, the mandate of the appellate court issued. On July 12, 1985, the employer tendered and the employee accepted a draft in the amount of $22,307.86 in full payment of the permanent disability benefits due under section 8(a) of the Act. On October 21, 1985, the employer tendered and the employee accepted a draft in the amount of $9,726.45, for the medical expenses. On February 28, 1986, the employee filed his application for judgment under section 19(g). In his pleading, he acknowledged receipt of the drafts for the permanent compensation and medical expenses, but alleged that he was entitled to interest on the award from June 1, 1982, the date of the decision and order of the Industrial Commission until satisfied. He further alleged that he had requested that the employer pay the interest, which was calculated at $7,898.73, but that the employer had refused to pay the interest. The employer filed a motion to quash, which was denied. Concluding that section 2-1303 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2-1303) applied, the circuit court granted the employee's motion for judgment and awarded interest at the rate of 9% from June 1, 1982, to the dates of payments, and also attorney fees. This appeal followed.

The employer contends that section 19(g) is not applicable where the Commission's decision was reversed in part, and where the payment was tendered and accepted prior to the filing of the application for judgment. Section 19(g) provides in pertinent part as follows:

"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 enter a judgment in accordance therewith." (Ill. Rev. Stat. 1981, ch. 48, par. 138.19(g)).

The employer argues that because the award here was reversed in part, the application of section 19(g) is improper since the Commission's ruling is no longer controlling. However, inasmuch as there was an award made in this case which was upheld upon review, the fact that a portion of it was reversed cannot be held to prevent the enforcement of that portion still standing, particularly where the statute makes no such distinction.

As a general rule, a tender must include everything to which the creditor is entitled, and a tender of any less sum is nugatory and ineffective as a tender. (Smith v. Gen Co. (1973), 11 Ill. App. 3d 106, 109.) It must include interest due and costs then due as accrued. (11 Ill. App. 3d 106, 109.) Thus, if the employee was entitled to interest and the employer failed to tender it, the circuit court properly entered judgment under section 19(g). (D. W. Voorhees v. Industrial Com. (1964), 31 Ill. 2d 330.) We therefore must determine if the interest award here was proper.

Prior to 1975, the payment of interest on an award made by the Industrial Commission was made in accordance with section 3 of the Interest Act. (Ill. Rev. Stat. 1967, ch. 74, par. 3; McMurray v. Peabody Coal Co. (1917), 281 Ill. 218.) Under section 3, a judgment based upon an award of the Industrial Commission was to include interest from the date of the award to the time of rendering of the judgment. Proctor Community Hospital v. Industrial Com. (1971), 50 Ill. 2d 7, 9.

However, in 1975, the Act was amended to include the following provision:

"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. However, the employer or his insurance carrier may tender the payments due under the award to stop the further accrual of interest on such award notwithstanding the prosecution by either party of review, certiorari, ...


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