Board of Education of City of Chicago v. Industrial Com.

CHIEF JUSTICE RYAN, dissenting:

Here, as in Board of Education v. Industrial Com. (1982), 93 Ill. 2d 1 , it appears that penalties under section 19(k) and section 19(l) (Ill. Rev. Stat. 1979, ch. 48, pars. 138.19(k), 138.19(l) were awarded for the same delay in making payments of an award for temporary total disability. This court noted in Brinkmann v. Industrial Com. (1980), 82 Ill. 2d 462 , that the provisions for penalties under both section 19(k) and section 19(l) are premised upon an award in favor of an employee and an unreasonable delay in payment of the award. As in my dissent in Board of Education v. Industrial Com. (1982), 93 Ill. 2d 1 , I again state that I think it is imperative that the legislature reconsider the various penalty provisions of the Workers’ Compensation Act and clarify their applicability.

Although, as noted above, this court has held that it is necessary that there be an award before a penalty be assessed under either section discussed herein, I think there is language in both sections which indicates that the unreasonable failure to pay temporary total disability benefits when due, even before the arbitrator has made an award, may be grounds for assessing penalties. Without attempting to establish the historical reason for the apparent overlapping of these two sections, it may be noted that section 19(l) was not added to the Act until 1975. Prior to that time, this court had held that a proceeding under section 19(k) could be had only after an award had become final. (Board of Education v. Industrial Com. (1932), 351 Ill. 128, 131 .) It may be that the legislature, by adding section 19(l) in 1975, was trying to say that penalties should be assessed for nonpayment of temporary total disability compensation prior to an award. However, the Board of Education construction of section 19(k) was followed in subsequent cases and, as indicated above in Brinkmann, was carried over and applied to section 19(l) after its adoption.

I believe that penalties should be available and should be awarded, even in the absence of a previous award, when there is an unreasonable or vexatious delay in making disability payments. If an employee is clearly entitled to temporary total disability benefits, his right to receive penalties for an unreasonable refusal to pay should not depend upon a prior award of temporary total disability benefits by the arbitrator. I can appreciate the fact that the injured employee’s living expenses continue even though he may not be working.

It must be remembered, however, that the General Assembly has seen fit to structure our workers’ compensation act in the nature of an adversary proceeding. (For a discussion of compensation acts that are not adversary, see Popkin, The Effect Of Representation In Nonadversary Proceedings—A Study Of Three Disability Programs, 62 Cornell L. Rev. 989 (1977) (discussing proceedings under the Federal Employees’ Compensation Act, as well as other Federal acts); O’Leary, The Ontario System: Non-Adversary Workmen’s Compensation, 9 Trial 33 (1973) (discussing the Ontario Compensation Act).) A strict application of the penalty provisions of our act, however, may effectively destroy the adversary nature of the proceedings and lead to a reduction of or limitation on the participation of attorneys.

Formerly, the Industrial Commission and this court permitted recovery of penalties in only a very limited number of cases. Recently, however, the number of cases we review wherein the Industrial Commission has awarded penalties under sections 19(k) and 19(l) has been substantially increased, and this court, relying on the time-worn deference to the Industrial Commission, has upheld these awards.

Obviously, there has been a change in policy on the Industrial Commission. Such a change in policy may be administratively an effective way of coercing payments, curtailing appeals, and thus reducing the case load of the Industrial Commission. It must be remembered, however, that penalties must be assessed on the basis of unreasonable or vexatious delay, which depends on the manifest weight of the evidence present in a case, and is not determined by a change in policy on the Industrial Commission.

It now appears that we have reached the point where the employer can contest the payment of temporary total disability benefits only at the peril of being substantially penalized for doing so. The opinion in this case holds that the employer’s conduct is to be “considered in terms of reasonableness.” ( 93 Ill. 2d at 25 .) In Board of Education v. Industrial Com. (1982), 93 Ill. 2d 1, 9 , the majority defines the test as one of “objective reasonableness.” These two opinions confer on the Industrial Commission substantial discretion in determining whether or not penalties should be imposed. Given the present climate to penalize employers that now prevails on the Industrial Commission, as demonstrated by the recent cases that have come to this court, I fear that the adversary system has been substantially curtailed, at least insofar as the employer is concerned.

It has been charged that, in recent years, this court has indulged in such an expansive interpretation of the Act as to make employers “virtual insurers of their employees’ general health and welfare.” (Kinzie, Nyhan, Workers’ Compensation: A System In Need, 30 DePaul L. Rev. 347 , 359 (1981).) It would appear that the change of policy on the Industrial Commission which restricts the employers’ right to contest the employees’ claims, and this court’s deference to the Commission’s assessment of penalties, justifies this accusation. A proceeding under the Workers’ Compensation Act has come to resemble a baseball game wherein only the employee is permitted to bat and the employer may have no fielders.

In this case the employee was hospitalized for bronchitis and hypertension, as well as treatment for his injured knee. When he later had a physical examination, he was not permitted to return to work. One of the reasons for not being able to do so was that his blood pressure was too high. I am not saying that a temporary total disability award in favor of the employee was not justified under the facts of this case. I maintain, however, that under these facts, the employer certainly had a right to contest the claim and the assessment of penalties for an unreasonable or vexatious delay in making payments is, in my opinion, clearly contrary to the manifest weight of the evidence.