# McMahan v. Industrial Commission

> Illinois Supreme Court · October 22, 1998 · 183 Ill. 2d 499

URL: https://www.frixlaw.com/law-library/cases/9529310

## Case

- **Full name:** ROBERT McMAHAN, Appellee, v. THE INDUSTRIAL COMMISSION Et Al. (Farmer’s Elevator, Appellant)
- **Court:** Illinois Supreme Court
- **Decided:** October 22, 1998
- **Citations:** 183 Ill. 2d 499; 234 Ill. Dec. 205; 702 N.E.2d 545; 1998 Ill. LEXIS 1572
- **Precedential status:** Published
- **Opinion:** Concurrence by Heiple
- **Judges:** Harrison, Heiple, Miller
- **Cited by:** 96 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

JUSTICE HEIPLE, specially concurring:
I agree with the majority that section 19(k) penalties and section 16 attorney fees may be awarded for conduct prior to an adjudication of liability. I write separately, however, because, rather than contort the holding of Brinkmann v. Industrial Comm’n, 82 Ill. 2d 462 (1980), as done in McKay Plating Co. v. Industrial Comm’n, 91 Ill. 2d 198 (1982), Board of Education v. Industrial Comm’n, 93 Ill. 2d 1 (1982), and today’s majority opinion, I would expressly overrule Brinkmann as wrongly decided.
Brinkmann expressly and unequivocally held that section 19(k) penalties and section 16 fees were “applicable only when an award has been entered in favor of a claimant and the responsible party has unreasonably delayed payment.” (Emphasis added.) Brinkmann, 82 Ill. 2d at 469 . Brinkmann’s only stated support is citation to Wilbon v. Industrial Comm’n, 65 Ill. 2d 221 (1976), and City of Chicago v. Industrial Comm’n, 63 Ill. 2d 99 (1976). Although these cases involved penalties and fees awarded after an adjudication of liability, nothing in either case supports a holding that penalties and fees may only be assessed after an adjudication of liability.
Brinkmann’s holding is also unsupported by the plain language of both section 19(k) and section 16. Section 19 (k) states that penalties may be awarded for unreasonable or vexatious delay of payment of compensation “or [where] 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.” 820 ILCS 305/19(k) (West 1992). Likewise, section 16 states that attorney fees may be awarded for unreasonable or vexatious delay of payment of compensation or where an employer has “engaged in frivolous defenses which do not present a real controversy.” 820 ILCS 305/16 (West 1992). Nowhere does either section require an adjudication of liability before penalties or fees may be awarded. Indeed, the language supports the opposite conclusion. Frivolous defenses made for the purposes of delay can be asserted by an employer prior to an adjudication of liability, as well as afterwards on appeal to the Commission. It would be anomalous to penalize the employer for its inappropriate conduct after an award, but not prior to it. In both cases, the employee must retain counsel and remain uncompensated simply because of the employer’s unreasonable attempt to delay.
Finally, I am mindful that “[t]he doctrine of stare decisis is the means by which courts ensure that the law will not merely change erratically, but will develop in a principled and intelligible fashion.” Chicago Bar Ass’n v. Illinois State Board of Elections, 161 Ill. 2d 502, 510 (1994). However, explicitly overruling Brinkmann is not an “erratic” change in the law. In the eighteen years since Brinkmann, every case interpreting Brinkmann, including today’s majority opinion, has eroded its holding. I would merely make explicit what this court has done implicitly for the last eighteen years.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9529310. Public record. Not legal advice.