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08/01/89 Randall Waldschmidt, v. the Industrial Commission

August 1, 1989

RANDALL WALDSCHMIDT, APPELLANT

v.

THE INDUSTRIAL COMMISSION ET AL. (CONSOLIDATED FREIGHTWAYS, INC., APPELLEE)



APPELLATE COURT OF ILLINOIS, THIRD DISTRICT, INDUSTRIAL COMMISSION DIVISION

542 N.E.2d 726, 186 Ill. App. 3d 477, 134 Ill. Dec. 380 1989.IL.1182

Appeal from the Circuit Court of La Salle County; the Hon. Thomas R. Flood, Judge, presiding.

APPELLATE Judges:

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

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MCCULLOUGH

Claimant appeals from an order of the Industrial Commission (Commission) which reduced the amount of penalties awarded by the arbitrator under section 19(l) of the Workers' Compensation Act (Act) and denied penalties and attorney fees under sections 19(k) and 16a of the Act (Ill. Rev. Stat. 1987, ch. 48, pars. 138.19(l), (k), 138.16a). We affirm.

In a prior appeal this court affirmed a Commission order assessing penalties of $980 under section 19(l) as well as an award of attorney fees of $1,678 under section 16a of the Act. (Consolidated Freightways, Inc. v. Industrial Comm'n (1985), 136 Ill. App. 3d 630, 483 N.E.2d 652.) The case was remanded for further proceedings to consider additional temporary and permanent disability questions.

Following a second arbitration hearing, claimant was awarded 16 6/7 weeks temporary total disability, in addition to the original 22 3/7 weeks previously awarded, and was found to be permanently disabled to the extent of 25% under section 8(d)(2) of the Act. (Ill. Rev. Stat. 1987, ch. 48, par. 138.8(d)(2).) The arbitrator also awarded an additional $2,500 under section 19(l), as well as $1,606 in attorney fees under section 16a of the Act.

On review, the Commission reduced the temporary total disability slightly to a total of 39 weeks and further reduced the permanent disability finding to 12%. The Commission also reduced the section 19(l) award to $1,520 and made a finding claimant was not entitled to penalties under section 19(k) which precluded an award of attorney fees under section 16a of the Act. Claimant does not contest the Commission's findings with respect to either temporary or permanent disability.

Initially, claimant argues the Commission improperly reduced the amount of additional 19(l) compensation. That section provides:

"In case the employer or his insurance carrier shall without good and just cause fail, neglect, refuse or unreasonably delay the payment of weekly compensation benefits due to an injured employee during the period of temporary total disability the arbitrator or the Commission shall allow to the employee additional compensation in the sum of $10 per day for each day that a weekly compensation payment has been so withheld or refused, provided that such additional compensation shall not exceed the sum of $2,500." (Emphasis added.) (Ill. Rev. Stat. 1987, ch. 48, par. 138.19(l).)

In this case, the Commission reduced the arbitrator's award to $1,520 to take into account the fact $980 had previously been awarded in the first arbitration proceeding.

Claimant initially contends section 19(l) does not limit his recovery to a maximum of $2,500 on his entire claim. Rather, he argues, he is entitled to recover up to $2,500 for each hearing held before the arbitrator or Commission. We disagree.

Nothing in the statute admits of such a construction. Additional compensation is awarded under section 19(l) based on the failure to pay weekly compensation. The number of hearings held is irrelevant since the extent of liability is determined solely by the number of days compensation is withheld up to a maximum of $2,500 on any one claim. Nothing in the statute supports claimant's view the legislature intended to permit multiple awards of up to ...


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