Childress v. Industrial Commission

CHIEF JUSTICE RYAN delivered the opinion of the court: This action is a direct appeal (73 Ill. 2d R. 302(a)) by respondent, St. Mary’s Hospital, of an award of attorney fees pursuant to section 16 of the Workmen’s Compensation Act (Ill. Rev. Stat. 1977, ch. 48, par. 138.16), and of the amount of an award of temporary total disability. The essential facts are not in dispute. Petitioner, Frankie Childress, a nurse’s aide at St. Mary’s Hospital, injured her back on May 13, 1978, while lifting a patient into a wheelchair. She continued to work for approximately a week and was then hospitalized at St. Mary’s for her back injury. She was off work for approximately five months, during which time respondent voluntarily paid her temporary total disability benefits. Thereafter, petitioner was released by her doctor to return to work on “light duty.” She worked approximately one week until respondent informed her there were no light-duty jobs available. Respondent then resumed payment of temporary total disability benefits to petitioner. On February 6, 1979, petitioner was examined by respondent’s physician, Dr. Michael Winer. On the basis of his examination Dr. Winer determined that petitioner was able to return to work without any restrictions. Petitioner did not return to work, however, until July of that year. After a hearing, the arbitrator found that petitioner’s condition had not yet reached permanent status and awarded her 48% weeks of compensation pursuant to section 19(b) (Ill. Rev. Stat. 1977, ch. 48, par. 138.19(b)). The period of temporary total disability was held to have occurred, intermittently, from May 13, 1978, the date of the injury, through May 8, 1979, the date of the hearing. The arbitrator also awarded petitioner $394.75 for necessary medical expenses. The award was entered on June 22, 1979. Shortly thereafter petitioner Childress returned to work. On review before the Industrial Commission, the award of temporary total disability was reduced to 38% weeks, corresponding to the date respondent’s physician determined petitioner was able to return to work without restrictions, February 6, 1979. The Commission also affirmed the award of $394.75 in necessary medical expenses and ordered respondent to pay $78.79 in attorney fees, pursuant to section 16 of the Act, as a penalty for unreasonable and vexatious delay in the payment of medical expenses. On certiorari, the circuit court of St. Clair County increased the award of temporary total disability to 486/t weeks, the amount awarded by the arbitrator, and also increased the amount of attorney fees awarded by the Industrial Commission to $950. Two issues are raised on appeal before this court: (1) whether the award of 383/7 weeks’ temporary total disability by the Industrial Commission is against the manifest weight of the evidence, and (2) whether the award of attorney fees for unreasonable and vexatious delay in the payment of medical expenses is proper under section 16 of the Act. With respect to the first issue, in addition to the testimony of petitioner, conflicting medical evidence was presented to the arbitrator and subsequently reviewed by the Commission. The petitioner presented the testimony of Dr. J. H. Monrow, Jr., by evidence deposition. Dr. Monrow is an osteopathic physician who examined petitioner at the request of her attorney. Dr. Monrow diagnosed petitioner’s condition and evaluated it as permanent. In his opinion, petitioner would not be employable in the open labor market because she is unable to perform “manual duty.” On cross-examination, Dr. Monrow testified that petitioner would be able to perform light work with no lifting, i.e., “writing, answering a phone, or something of this nature.” The date of Dr. Monrow’s examination was January 10, 1979. On behalf of respondent, St. Mary’s Hospital, the evidence deposition of Dr. Michael Winer was read into the record. Dr. Winer is an orthopedic surgeon who examined petitioner on February 6, 1979, at respondent’s request. Dr. Winer’s diagnosis was low back pain, with no objective evidence of nerve-root compression, which he classified as lumbosacral strain. He further testified that in his opinion Frankie Childress was at that time able to work without restriction or limitation. Resolving conflicts in the evidence, drawing inferenees from testimony, and determining the credibility of witnesses and the weight to be given to their testimony are matters within the province of the Industrial Commission, and this court will not disturb the Commission’s findings unless they are against the manifest weight of the evidence. (Elliott v. Industrial Com. (1982), 91 Ill. 2d 100, 107; Hart Carter Co. v. Industrial Com. (1982), 89 Ill. 2d 487, 494.) The conflict in the instant case consists of differing medical opinions as to whether the employee’s condition permitted her to return to work. The resolution of conflicting medical opinions is clearly within the purview of the Industrial Commission. (Avon Products, Inc. v. Industrial Com. (1980), 82 Ill. 2d 297, 300; Eagle Sheet Metal Co. v. Industrial Com. (1980), 81 Ill. 2d 31, 36.) Here, it was clearly not against the manifest weight of the evidence for the Commission to accept the evaluation of the physician who testified on behalf of the employer. Accordingly, the Commission’s award of temporary total disability for 383/t weeks is affirmed. With respect to the second issue, the employer argues that an award of attorney fees for unreasonable and vexatious delay in the payment of medical expenses is not proper under section 16 of the Act (Ill. Rev. Stat. 1977, ch. 48, par. 138.16). It is the employer’s position that an award of attorney fees under that section is only proper for an unreasonable and vexatious delay in the payment of compensation, i.e., compensation for lost wages during the period the employee is unable to work. We agree. Section 16 of the Act provides: “Whenever the Commission shall find that the employer *** has been guilty of unreasonable or vexatious delay, intentional underpayment of compensation benefits, or has engaged in frivolous defenses which do not present a real controversy, within the purview of the provisions of paragraph (k) of Section 19 of this Act, the Commission may assess all or any part of the attorney’s fees and costs against such employer and his insurance carrier.” (Emphasis added.) (Ill. Rev. Stat. 1977, ch. 48, par. 138.16.) We believe that the phrase “unreasonable or vexatious delay” in section 16 must be read in the context of, and as limited by, the phrase “within the provisions of paragraph (k) of Section 19 of this Act.” Paragraph (k) of section 19 provides: “In case where there has been any unreasonable or vexatious delay of payment or intentional underpayment of compensation, or proceedings have been instituted or carried on by the one liable to pay the compensation, which do not present a real controversy, but are merely frivolous or for delay, then the Commission may award compensation additional to that otherwise payable under this Act equal to 50% of the amount payable at the time of such award. Failure to pay compensation in accordance with the provisions of Section 8, paragraph (b) of this Act, shall be considered unreasonable delay.” (Emphasis added.) (Ill. Rev. Stat. 1977, ch. 48, par. 138.19(k).) The language of paragraph (k) of section 19 mirrors the language of the provisions of section 16 in question in this case. By the direct reference to paragraph (k) of section 19, the award of attorney fees is limited under section 16. Furthermore, paragraph (k) of section 19 defines “unreasonable delay” as referring to compensation as awarded under section 8(b) of the Act (Ill. Rev. Stat. 1977, ch. 48, par. 138.8(b)). Section 8(b) of the Act pertains solely to the payment of compensation for lost wages. This is clearly different from the payment by the employer for all necessary medical and surgical services as delineated by section 8(a) of the Act (Ill. Rev. Stat. 1977, ch. 48, par. 138.8(a)). Section 8(a) also provides that “[t]he furnishing of any such services *** by the employer is not the payment of compensation.” (Emphasis added.) Ill. Rev. Stat. 1977, ch. 48, par. 138.8(a). This reading of the applicable provisions of the Act is consistent with this court's decision in Colclasure v. Industrial Com. (1958), 14 Ill. 2d 455, which distinguished between the payment for medical services and the payment of disability benefits. The issue before this court in Colclasure was whether proceedings commenced by an employee to recover a workmen’s compensation award must abate in toto upon petitioner’s death from independent causes prior to the time the Industrial Commission order is rendered. (14 Ill. 2d 455, 456.) In Colclasure this court observed that the Workmen’s Compensation Act is designed to furnish financial protection to employees and their dependents by insuring both weekly payments during periods of disability and proper medical attention. The primary purpose of the payment of weekly benefits is to replace lost earning power, while the required medical and hospital attention is designed to relieve the employee and his family from the costs and burdens of such care. (14 Ill. 2d 455, 458.) This court concluded in Colclasure: “Considering that our own statute expressly differentiates between medical services and disability benefits, it is our opinion that the term ‘compensation’ as used in section 22 of the Illinois Workmen’s Compensation Act [citation] refers solely to the compensation embodied in the right to temporary and permanent disability benefits conferred by the act, and that it was not intended to bar or abate the claim or recovery of necessary hospital, surgical and medical expenses incurred or paid for by the deceased employee as the result of injuries arising out of and in the course of his employment.” Colclasure v. Industrial Com. (1958), 14 Ill. 2d 455, 460. It is possible for attorney fees to be assessed against an employer for refusal to pay the injured employee’s expenses under section 8(a) of the Act, but the proper statutory provision under which such fees are awarded is section 19(g) (Ill. Rev. Stat. 1979, ch. 48, par. 138.19(g)). In Ahlers v. Sears, Roebuck Co. (1978), 73 Ill. 2d 259, the employee, as a result of her injury, was unable to be self-sufficient and required continuous nursing care. Attorney fees were assessed against the employer for the unilateral termination of payments. Section 19(g) applies to the employer’s refusal to pay after a final award rather than mere delay in payment as in section 19(k). In the instant case the charge of unreasonable and vexatious delay concerned the payment of medical expenses under section 8(a), not disability compensation under section 8(b). The sanction of attorney fees under section 16, by its terms, does not apply. Accordingly, we hold that the award of attorney fees for an unreasonable and vexatious delay in the payment of medical expenses is not proper under section 16 of the Workmen’s Compensation Act. The judgment of the circuit court of St. Clair County is reversed. The award by the Industrial Commission for 38% weeks’ temporary total disability is affirmed and the award of attorney fees under section 16 is reversed. The cause is remanded to the Industrial Commission for entry of an award in accordance with this opinion. Judgment reversed; order affirmed in part and reversed in part; cause remanded with directions. JUSTICE GOLDENHERSH took no part in the consideration or decision of this case.