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07/14/88 George R. Ballard, v. the Industrial Commission

July 14, 1988

GEORGE R. BALLARD, APPELLEE AND CROSS-APPELLANT

v.

THE INDUSTRIAL COMMISSION ET AL. (A. O. SMITH HARVESTORE PRODUCTS, INC., APPELLANT AND CROSS-APPELLEE)



APPELLATE COURT OF ILLINOIS, THIRD DISTRICT, INDUSTRIAL COMMISSION DIVISION

526 N.E.2d 675, 172 Ill. App. 3d 41, 122 Ill. Dec. 416 1988.IL.1106

Appeal from the Circuit Court of Peoria County; the Hon. Thomas G. Ebel, Judge, presiding.

APPELLATE Judges:

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

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MCCULLOUGH

Claimant filed an application for judgment for interest and attorney fees under section 19(g) of the Workers' Compensation Act (Act) (Ill. Rev. Stat. 1985, ch. 48, par. 138.19(g)) asking that interest be awarded at the statutory rate of 9% under section 2-1303 of the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1985, ch. 110, par. 2-1303). The trial court awarded interest at the rate of 6% from the date of the Industrial Commission's (Commission's) decision of May 30, 1985, through June 10, 1987, together with attorney fees for vexatious delay in refusing to pay interest. Respondent appeals the award of interest and attorney fees. Claimant cross-appeals, arguing interest should have been set at the Code rate of 9% rather than at 6% pursuant to section 19(n) of the Act (Ill. Rev. Stat. 1985, ch. 38, par. 138.19(n)).

The procedural history of this case is straightforward. On November 21, 1980, the arbitrator awarded claimant 17 4/7 weeks temporary total disability for a back injury. Permanent partial disability to the extent of 7 1/2% was also awarded. On review, the Commission reduced the permanent partial disability award to 3% and made a finding there was no causal relationship between claimant's condition and his employment after March 1976. On initial review in 1983, the trial court reversed that latter finding as against the manifest weight of the evidence and remanded. On remand the Commission issued a decision on May 30, 1985, finding claimant was permanently and totally disabled, awarding $128 per week for life from June 7, 1976, forward. The circuit court confirmed the Commission and this court affirmed the circuit court on April 29, 1987. (A. O. Harvestore Products, Inc. v. Industrial Comm'n (3d Dist., April 29, 1987, No. 3 -- 85 -- 0774 (unpublished order under Supreme Court Rule 23).) The appellate court mandate issued May 26, 1987.

On July 7, 1987, claimant filed his application for judgment for interest. Claimant asked for interest from May 30, 1985, the date of the Commission's second decision through June 10, 1987, at the rate of 9%. The application alleged respondent had tendered the amount due on the underlying award on June 11, 1987, but refused to pay any interest accruing after May 30, 1985. The trial court found claimant was entitled to interest at the rate of 6% on the sum of $31,670.85, representing the value of the unpaid Commission award as of May 30, 1985, through June 10, 1987, the date respondent made its tender without interest. The court also awarded attorney fees in the amount of $10,792 covering the fees incurred at arbitration and on the application for a judgment.

Respondent argues the award of interest and attorney fees under section 19(g) was improper because there was a genuine dispute over whether interest was due claimant.

The pertinent portion of section 19(g) states:

"[Either] party may present a certified copy of the . . . decision of the Commission when the same has become final . . . providing for the payment of compensation . . . to the Circuit Court . . . whereupon the court shall enter a judgment . . .. In a case where the employer refuses to pay compensation according to such final award or such final decision upon which such judgment is entered the court shall in entering judgment thereon, tax as costs . . . the reasonable costs and attorney fees in the arbitration proceedings and in the court entering the judgment for the person in whose favor the judgment is entered . . .." (Ill. Rev. Stat. 1985, ch. 48, par. 138.19(g).)

As a preliminary matter, the parties appear to agree that if section 19(n) has any application to this case, interest would be awarded at 6% given the date of the arbitrator's decision. See Ill. Rev. Stat. 1981, ch. 48, par. 138.19(n).

The problems which arise in this case are due largely to the confusion which exists in the case law and the statutory amendments which relate to this intricate issue. (See Aper v. National Union Electric Corp. (1988), 165 Ill. App. 3d 482, 519 N.E.2d 117; Kuhl v. Industrial Comm'n (1986), 147 Ill. App. 3d 519, 498 N.E.2d 240.) We are not unmindful of the incongruous results this dilemma often presents (see Bray v. Industrial Comm'n (1987), 161 Ill. App. 3d 87, 97, 513 N.E.2d 1045, 1052 (Kasserman, J., Dissenting)) and this case is no exception.

To properly determine which interest statute applies it is necessary to frame the issue in terms of distinct periods of time. We begin with the period prior to ...


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