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12/14/89 Thomas Hurt, Appellant and v. the Industrial Commission

December 14, 1989

THOMAS HURT, APPELLANT AND CROSS-APPELLEE

v.

THE INDUSTRIAL COMMISSION ET AL. (BORDEN CHEMICAL COMPANY, APPELLEE AND CROSS-APPELLANT)



APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT, INDUSTRIAL COMMISSION DIVISION

548 N.E.2d 122, 191 Ill. App. 3d 733, 138 Ill. Dec. 892 1989.IL.1941

Appeal from the Circuit Court of Sangamon County; the Hon. Simon L. Friedman, Judge, presiding.

APPELLATE Judges:

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

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LEWIS

The claimant, Thomas Hurt, seeks reversal in part of an order of the circuit court confirming the decision of the Illinois Industrial Commission (hereafter referred to as the Commission), which, in turn, affirmed the decision of the arbitrator. Claimant raises a single issue for our review: whether the Commission erred in failing to award him penalties, pursuant to sections 19(k) and (1) of the Workers' Compensation Act (hereafter referred to as the Act) (Ill. Rev. Stat. 1985, ch. 48, pars. 138.19(k), 138.19(1)), and attorney fees, pursuant to section 16 of the Act (Ill. Rev. Stat. 1985, ch. 48, par. 138.16). Claimant describes the judgment of the circuit court and the decision of the Commission as "entirely favorable" to him in all other respects. Claimant suffered a broken nose on February 7, 1985, when struck by a fellow employee in the employer's parking lot. The employer, Borden Chemical Company, has cross-appealed the judgment of the circuit court, questioning, inter alia, whether the claimant's accident arose out of and in the course of his employment.

Upon entry of the arbitrator's decision the employer sought review by the Commission. Following submission of the employer's statement of exceptions and supporting brief the claimant submitted his response. In "Count I" of his response claimant sought against the employer penalties under sections 19(k) and (l) and attorney fees under section 16; in "Count II" of his response he sought against both the employer and its attorney penalties and attorney fees under those same sections. Claimant contended that the statement of exceptions and supporting brief submitted by the employer was "a complete fabrication offered in bad faith." In response to the Commission's notice of predecision memorandum on review, the claimant requested a written decision on review setting forth the reasons for the decision concerning the issues, among others, the failure to assess penalties and attorney fees. The written decision of the Commission, dated March 7, 1988, made no reference to penalties or attorney fees. The claimant thereupon sought review in April of 1988 in the circuit court, which, likewise, in its judgment, entered in January of 1989, did not refer to penalties or attorney fees.

In its brief to this court the employer argues, as it did in the circuit court, that the claimant's demand for penalties was not properly presented to the Commission. On the review proceedings stipulation form submitted to the Commission, signed by counsel for both parties, claimant did not indicate that penalties or attorney fees were in issue. That form states with regard to "Penalties" that a written petition must be on file. In his brief claimant asserts that "[t]he controversy giving rise to this appeal began with a brief filed by [counsel for the employer] entitled 'RESPONDENT'S STATEMENT OF EXCEPTIONS AND SUPPORTING BRIEF.'" Claimant argues that he raised the issue and asked for penalties and attorney fees "at his first opportunity, in his responding brief." At no time did claimant file a petition for penalties.

Our supreme court has stated that a petition requesting additional compensation because of delay under section 19(k) must be directed to the Commission so that it may determine as a question of fact whether such delay exists (Garrison v. Industrial Comm'n (1980), 83 Ill. 2d 375, 415 N.E.2d 352). The employer relies upon Christman v. Industrial Comm'n (1989), 180 Ill. App. 3d 876, 536 N.E.2d 773, in which we noted that the Commission's award of penalties under section 19(k) and attorney fees under section 16 were unwarranted because the claimant had never presented those issues properly to the Commission. In Christman the review proceedings stipulation form did not raise the issue either of penalties or of attorney fees. However, on the same date that the claimant filed his review proceedings stipulation, he filed a written petition for penalties under section 19(l). His brief discussed penalties under section 19(l) and attorney fees under section 16, as did his statement of exceptions. He did not mention penalties under section 19(k). We said in Christman that "[t]he Commission may consider, and oral arguments will be limited to, only those issues raised in both the review proceedings stipulation form or its equivalent, and in the party's statement of exceptions and supporting briefs" (emphasis in original) (180 Ill. App. 3d at 882, 536 N.E.2d at 777). We concluded that the claimant's failure to raise the issue of penalties under section 19(l) in the review proceedings stipulation form was cured by his filing of a written petition seeking 19(l) penalties on the same date that he filed the review proceedings stipulation form but that his failure to raise the issues of penalties under section 19(k) and attorney fees in either the review proceedings stipulation form or in the petition for penalties precluded the Commission from properly considering those issues. Thus, we determined that it was error for the Commission to have imposed penalties under section 19(k) and to have awarded attorney fees under section 16.

In the instant case the issues of penalties and attorney fees were raised neither in the review proceedings stipulation form nor in a petition. The claimant did not, for example, file such a petition when he filed his response to the employer's statement of exceptions and supporting brief. This failure precluded the Commission from considering these issues. Hence, the Commission did not err in failing to award claimant penalties and attorney fees.

In its cross-appeal the employer raises two other issues for review: (1) "[w]hether, when there is no evidence indicating it is work-related, an otherwise 'unexplained assault' constitutes an accident arising out of and in the course of employment" and (2) "[w]hether an award of '15 week [ sic ] . . . for a nasal bone fracture' is authorized by Section 8(d)(2) when there is no finding the injury is 'serious and permanent' or results in a 'permanent partial disability' as required by the statute and judicial decision construing it."

Initially, we address the claimant's contention that the employer may not raise issues not presented by the claimant to the circuit court because the employer did not seek judicial review there. Section 19(f)(1) (Ill. Rev. Stat. 1987, ch. 48, par. 138.19(f)(1)) begins as follows:

"Except in cases of claims against the State of Illinois, in which case the decision of the Commission shall not be subject to judicial review, the Circuit Court of the county where any of the parties defendant may be found, or if none of the parties defendant can be found in this State then the Circuit Court of the county where the accident occurred, shall by summons to the Commission have power to review all questions of law and fact presented by such record.

A proceeding for review shall be commenced within 20 days of the receipt of notice of the decision of the Commission. The summons shall be issued by the clerk of such court upon written request returnable on a designated return day, not less than 10 or more than 60 days from the date of issuance thereof, and the written request shall contain the last known address ...


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