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06/03/94 MOORHEAD MACHINERY/WESTINGHOUSE v.

June 3, 1994

MOORHEAD MACHINERY/WESTINGHOUSE, APPELLANT AND CROSS-APPELLEE,
v.
THE INDUSTRIAL COMMISSION ET AL. (LEONARD SIDDENS, APPELLEE AND CROSS-APPELLANT).



Appeal from Circuit Court of Macon County. No. 91MR18. Honorable John L. Davis, Judge Presiding.

Petition for Rehearing Denied August 2, 1994.

Honorable Kent F. Slater, J., Honorable John T. McCULLOUGH, P.j., Honorable Thomas R. Rakowski, J., Honorable Alfred E. Woodward, J., Honorable Philip J. Rarick, J.

The opinion of the court was delivered by: Slater

JUSTICE SLATER delivered the opinion of the court:

The employer, Moorhead Machinery/Westinghouse, appeals from an order of the circuit court denying its motion for discharge of an appeal bond filed pursuant to section 19(f)(2) of the Workers' Compensation Act (Act) (Ill. Rev. Stat. 1991, ch. 48, par. 138.19(f)(2)). Employer also appeals from the denial of its motion for sanctions pursuant to Supreme Court Rule 137 (134 Ill. 2d R. 137). The claimant, Leonard Siddens, filed a cross-appeal from the denial of his motion for Rule 137 sanctions. We affirm the denial of both motions for sanctions, and remand for a rehearing on employer's motion for discharge of bond.

On January 31, 1988, an arbitrator of the Illinois Industrial Commission (Commission) found that claimant was entitled to an award for medical expenses, temporary disability benefits and a wage differential pursuant to section 8(d)(1) of the Act (Ill. Rev. Stat. 1987, ch. 48, par. 138.8(d)(1)) due to injuries he suffered during the course of his employment with the employer. The Commission affirmed the arbitrator's decision andawarded claimant a wage differential of $333.33 per week for the duration of his disability. Employer filed an appeal bond pursuant to section 19(f)(2) of the Act in order to perfect an appeal to the circuit court. The Commission's decision was confirmed on review by the circuit court of Macon County, and employer appealed to the appellate court. On July 8, 1992, this court affirmed the decision of the Commission. Moorhead Machinery/Westinghouse v. Industrial Comm'n (July 8, 1992, 4th Dist. Gen. No. 4-91-0629WC, unpublished order under Supreme Court Rule 23).

On July 31, 1992, employer tendered two checks to claimant totaling $86,942.70. Employer claimed that this was the accrued amount due on the award as of that date, but claimant disagreed. On August 19, 1992, employer filed a "Motion for Entry of Order of Release and Satisfaction of Judgment with Discharge of Bond" alleging that it had paid claimant $88,903.51 in satisfaction of the award, that the matter was completed and satisfied, and that employer was therefore entitled to a discharge of the appeal bond which had been filed to obtain review of the Commission's decision. Claimant filed objections to employer's motion and a motion for sanctions pursuant to Supreme Court Rule 137. Employer filed a motion to amend, requesting leave to change the amount of the payment alleged in its motion to discharge the bond from $88,903.51 to $86,942.70. Employer also filed a cross-motion for Rule 137 sanctions.

The trial court denied employer's motion for discharge of the bond and its motion to amend. The court also denied both parties' motions for sanctions. The employer appeals from the denial of all three of its motions and claimant cross-appeals from the denial of his motion for sanctions.

We first address employer's contention that the trial court erred in denying its motion for discharge of the appeal bond. Section 19(f)(2) of the Act provides in relevant part:

"No such summons [for judicial review] shall issue unless the one against whom the Commission shall have rendered an award for the payment of money shall upon the filing of his written request for such summons file with the clerk of the court a bond conditioned that if he shall not successfully prosecute the review, he will pay the award and the costs of the proceedings in the courts." Ill. Rev. Stat. 1991, ch. 48, par. 138.19(f)(2).

Employer first claims that the bond should be discharged because the award and the costs of the proceedings on review have been paid in their entirety. This is clearly not the case. The Commission awarded claimant a wage differential of $333.33 per week for the duration of his disability. There has been no determination that claimant is no longer disabled. In fact, employer continues to make weekly payments to claimant. While employer's payment of $86,942.70 on July 31, 1992, may have been the amount due on the award as of that date, that payment did not, and in fact could not, constitute full payment of the award since weekly payments continued after that date and will continue indefinitely. Employer's contention that the award has been paid in full is meritless.

We now reach the central issue of this case: When an employer files an appeal bond under section 19(f)(2) of the Act to appeal from an award which calls for periodic payments to the claimant, and the award is confirmed on appeal, when is the bond dischargeable? Section 19(f)(2) states that the bond is not dischargeable until the employer pays the award and the costs of the proceedings in the courts. Claimant asserts that this means the bond must remain in effect until the entire award has been paid, despite the fact that award payments may continue for years or even for the entire life of the claimant. Employer argues that section 19(f)(2) should be interpreted to mean that the bond is dischargeable upon the final adjudication of the rights of the parties if the employer pays the amount due and owing on the award at that time. In other words, the employer must only pay the amount due on the award at the Conclusion of the appeal in order to satisfy the condition of the bond. Employer contends that the bond is only intended to protect the claimant during the pendency of the appeal and is not intended to ensure payment of awards of indefinite duration. We agree with employer's argument.

It appears that the trial court relied on Nierman v. Industrial Comm'n (1928), 329 Ill. 623, 161 N.E. 115, in denying employer's motion to discharge the bond. In Nierman, the court reiterated the rule that the circuit court does not have the authority to enter a judgment for the payment of money on an award which the court is reviewing on appeal from the Commission. In discussing the reasons for the rule, the court stated:

"The bond which the employer is required to give before he is permitted to prosecute a writ of certiorari from the circuit court to review an award makes unnecessary the rendition by the circuit court of a judgment for the payment of money in case the decision of the Industrial Commission is confirmed. * * * The legislative intention is that the employee shall be protected by the bond. [Citations.] The bond may continue in effect for many years ...


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