Childress v. Industrial Commission

JUSTICE SIMON, concurring in part and dissenting in part:

I have no quarrel with the majority’s holding that the Industrial Commission’s award was not against the manifest weight of the evidence. My dispute is with its holding that attorney fees may not be awarded for unreasonable or vexatious delay in payment of medical expenses under section 8(a) of the Workmen’s Compensation Act (Ill. Rev. Stat. 1977, ch. 48, par. 138.8(a)). Common sense tells me that the Commission should have the discretion to award attorney fees in such a case, and I see nothing in the relevant statutory sections or the case law which convinces me that I am wrong.

I agree that section 8(a) of the Act differentiates between “[t]he furnishing of [medical] services” by the employer and the “payment of compensation.” (Ill. Rev. Stat. 1977, ch. 48, par. 138.8(a).) However, section 16 of the Act, in providing for the assessment of attorney fees, is phrased in the disjunctive rather than the conjunctive, the alternative grounds being “unreasonable or vexatious delay” (as found in this case), “intentional underpayment of compensation benefits,” and “engagpng] in frivolous defenses which do not present a real controversy.” (Ill. Rev. Stat. 1977, ch. 48, par. 138.16.) I read the second of these alternatives as providing an example of the first alternative, not as limiting that alternative. If “unreasonable or vexatious delay” applied only to compensation benefits, as the majority concludes, the phrase “intentional underpayment of compensation benefits” would not be needed even to illustrate unreasonable or vexatious delay, as intentional underpayment without good reason is obviously an example of such delay. Such an interpretation would be contrary to the maxim of statutory construction that each phrase or provision be given independent meaning where possible. People v. Warren (1977), 69 Ill. 2d 620, 627 ; Hirschfield v. Barrett (1968), 40 Ill. 2d 224, 230 , cert. denied (1969), 393 U.S. 1062 , 21 L. Ed. 2d 706 , 89 S. Ct. 716 .

Nor can I accept the majority’s contention that the words “within the purview of the provisions of paragraph (k) of Section 19 of this Act” in section 16 must be read as limiting the scope of the words “unreasonable or vexatious delay.” (Ill. Rev. Stat. 1977, ch. 48, par. 138.16.) Three commas, two phrases and the word “or” intervene between the former phrase and the latter. Statutory construction in Illinois follows the last antecedent rule, which requires that in the absence of explicit indications to the contrary, such as statements of legislative purpose, a qualifying phrase is to be read as modifying only the immediately preceding word or phrase rather than as referring back to more remote antecedents. (See, e.g., City of Mount Carmel v. Partee (1979), 74 Ill. 2d 371, 375 .) There is no reason to interpret the language referring to section 19(k) of the Act as modifying anything other than the immediately preceding phrase, “or has engaged in frivolous defenses which do not present a real controversy,” particularly as section 19(k) contains a provision very similar to that phrase.

Even if the words “unreasonable or vexatious delay” were subject to the provisions of section 19(k), there is nothing in that section that limits the definition of such delay to delay in payment of compensation benefits. The majority points to the phrase “[failure to pay compensation in accordance with the provisions of Section 8, paragraph (b) of this Act, shall be considered unreasonable delay” (Ill. Rev. Stat. 1977, ch. 48, par. 138.19(k)) as limiting the definition accordingly. Yet section 8(b) contains very detailed provisions as to the timing as well as the amount of payment of disability compensation. Section 8(a), the section governing payment of medical expenses, does not contain comparable timing provisions. The quoted language in section 19(k) is not exclusive. The legislature may well have thought it necessary to reinforce the specific terms of section 8(b) by prescribing penalties and attorney fee awards for conduct falling short of strict compliance with those terms. It does not follow from this that it meant to preclude such awards in other cases of undue delay. I read the phrase cited by the majority in section 19(k) as setting forth merely one example of conduct constituting unreasonable delay, not the sole instance of such delay.

For the reasons stated above, I believe that the phrase “unreasonable or vexatious delay” in section 16 includes delay in payment of medical expenses. The existence of another provision in the Act (Ill. Rev. Stat. 1977, ch. 48, par. 138.19(g)) permitting recovery of attorney fees for such delay after a final award has been entered, I find of no significance; it does not prevent an award of attorney fees for delay of payment of medical expenses at an earlier stage of the litigation any more than it prevents a similar award for an earlier delay of payment of compensation benefits. Also perplexing is the majority’s reliance on Colclasure v. Industrial Com. (1958), 14 Ill. 2d 455 . All that case held was that medical expenses were not “compensation” for purposes of a provision which extinguished the right to “compensation” upon the beneficiary’s death. This distinction has no relevance to our inquiry if the phrase “unreasonable or vexatious delay” is not limited to the payment of “compensation.”

Although the Workmen’s Compensation Act distinguishes between medical expenses and disability benefits, it provides expressly for the payment of both. The purpose of the latter is to provide an injured worker with an income stream commensurate with that which the worker would have had if the injury had not occurred, and thereby to prevent such personal hardships as eviction for nonpayment of rent or the cutting off of utility service which may result from not having such income. (Board of Education v. Industrial Com. (1982), 93 Ill. 2d 1, 12 .) The purpose of requiring the payment of medical benefits is similarly to insure that the claimant is made medically whole without having to divert income that she would use for other necessary expenses to that end, and so that her physicians will continue to treat her. Medical bills must be paid when due, as must rent and utility bills, and harsh consequences may attend the late payment of either. An unpaid physician may be unwilling to continue his service or may reduce its frequency. Just as “[i]t hardly comports with [the intent of the Act] to permit employers to litigate ad infinitum,” safe in the knowledge that the claimant is being forced to pay attorney fees while attempting to compel payment of disability benefits (Board of Education v. Industrial Com. (1982), 93 Ill. 2d 1, 14 ), permitting employers vexatiously to delay payment of medical expenses, forcing claimants to sue for the funds on their own time and using their own money, is similarly repugnant to the Act’s purposes. As I see nothing in section 16 which commands different treatment, I presume that similar treatment was intended and would affirm the circuit court’s decision confirming the award of attorney fees.