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04/21/88 Archer Daniels Midland v. the Industrial Commission

April 21, 1988

ARCHER DANIELS MIDLAND COMPANY, APPELLANT

v.

THE INDUSTRIAL COMMISSION ET AL. (KENNETH BROOKS, APPELLEE)



APPELLATE COURT OF ILLINOIS, THIRD DISTRICT, INDUSTRIAL COMMISSION DIVISION

529 N.E.2d 237, 174 Ill. App. 3d 918, 124 Ill. Dec. 417 1988.IL.566

Appeal from the Circuit Court of Peoria County; the Hon. Robert G. Manning, Judge, presiding.

APPELLATE Judges:

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

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE BARRY

Following an emergency hearing under section 19(b-1) of the Workers' Compensation Act (the Act) (Ill. Rev. Stat. 1985, ch. 48, par. 138.19(b-1)), the arbitrator found that the petitioner, Kenneth Brooks, was entitled to $307.94 per week for the 145 6/7 weeks he had been temporarily totally disabled as of the hearing date. Further, the arbitrator ordered the respondent, Archer Daniels Midland Company, to pay the petitioner $3,306.40 under section 19(k) of the Act and $948.86 in attorney fees under section 16 of the Act, as penalties for the respondent's "capricious" refusal to pay compensation.

On review, the Industrial Commission affirmed the arbitrator's award for temporary total disability. The Commission further awarded the petitioner $360 under section 19(l) of the Act for delay of payment between November 14, 1985, and December 20, 1985, and $1,080 for delay of payment between December 21, 1985, and April 8, 1986. Additionally, the Commission awarded the petitioner interest under section 19(n) of the Act. The Commission found that the respondent's conduct was not vexatious; thus, the petitioner was not entitled to additional compensation under section 19(k) or under section 16 of the Act.

The circuit court confirmed the Commission's decision. The respondent appeals.

The record shows that on March 31, 1983, the 48-year-old petitioner injured his back while working as a turbine operator for the respondent. The respondent's company doctor, Robert I. Martin, hospitalized the petitioner and referred the case to Dr. Jesse M. Weinger. Dr. Weinger injected the petitioner with chymopapain and performed a spinal fusion on him. By February of 1985, both doctors felt that the petitioner's condition had improved.

The respondent then arranged for rehabilitation counselor Ron Nemiroff to work with the petitioner. At the petitioner's request, and with Nemiroff's concurrence, the respondent paid for a Belsaw Institute locksmith correspondence course for the petitioner.

The petitioner received his first 10 locksmith lessons during the second week of May 1985. He submitted his first five lessons for grading on June 12, 1985, and the next five on July 19, 1985. He then submitted another five on September 26, 1985; another five on October 26, 1985; and the remaining 10 by December 20, 1985. Since December 20, he had been taking an advanced locksmith course.

In the meantime, counselor Nemiroff contacted the Belsaw Institute at the respondent's request. On August 5, 1985, Nemiroff received a letter from Belsaw stating that the average time for completion of the locksmith course was six months. The respondent subsequently asked Nemiroff to learn from Belsaw how long it would take an individual to complete the course if he worked on it 40 hours a week. On September 9, 1985, Nemiroff received a letter from Belsaw stating that the petitioner should be able to complete the remaining 20 courses in two weeks if he worked on them 40 hours per week.

Nemiroff testified before the arbitrator that he never told the petitioner about the letters from Belsaw. Further, Nemiroff testified that he thought the petitioner was making satisfactory progress on the course.

On October 11, 1985, the respondent notified the petitioner's attorney by letter that it expected the petitioner to complete his locksmith training by October 31, 1985. The respondent's letter further stated that since the petitioner should be able to complete the program by October 31, he would not need weekly rehabilitation payments beyond ...


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