{ "id": 5202208, "name": "EARL McGEE, Plaintiff-Appellant, v. RACTIAN CONSTRUCTION COMPANY, Defendant-Appellee", "name_abbreviation": "McGee v. Ractian Construction Co.", "decision_date": "1992-07-09", "docket_number": "No. 4\u201491\u20140968", "first_page": "929", "last_page": "937", "citations": [ { "type": "official", "cite": "231 Ill. App. 3d 929" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "553 N.E.2d 113", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "113-14" } ], "opinion_index": 0 }, { "cite": "196 Ill. App. 3d 143", "category": "reporters:state", "reporter": "Ill. 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App. 3d", "case_ids": [ 2554003 ], "weight": 4, "pin_cites": [ { "page": "302" }, { "page": "303" }, { "page": "303" }, { "page": "299, 303-04" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/207/0297-01" ] }, { "cite": "451 N.E.2d 883", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "885-86" } ], "opinion_index": 0 }, { "cite": "96 Ill. 2d 513", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3114675 ], "pin_cites": [ { "page": "518-19" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/96/0513-01" ] } ], "analysis": { "cardinality": 782, "char_count": 18032, "ocr_confidence": 0.78, "pagerank": { "raw": 7.82030749825911e-08, "percentile": 0.4579052678360785 }, "sha256": "f26be2cc148b52da55ce938b229dc6eee1414450e2d124692bf0b84eeb4c86e4", "simhash": "1:9ff63d978be7342f", "word_count": 3022 }, "last_updated": "2023-07-14T19:52:19.187731+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "EARL McGEE, Plaintiff-Appellant, v. RACTIAN CONSTRUCTION COMPANY, Defendant-Appellee." ], "opinions": [ { "text": "JUSTICE McCULLOUGH\ndelivered the opinion of the court:\nPlaintiff Earl McGee appeals from an order of the circuit court of Sangamon County entering judgment in his favor against defendant Ractian Construction Company, but denying plaintiff\u2019s requested relief of attorney fees and costs. Plaintiff had sued defendant to obtain a judgment based on the failure of defendant to tender payment under a decision of the Illinois Industrial Commission (Commission) with regard to a workers\u2019 compensation claim. The only issue raised on review by plaintiff is whether the circuit court erred in refusing to award attorney fees and costs. Defendant raises the additional issue of whether the circuit court had subject-matter jurisdiction to consider the cause. We find the circuit court did have subject-matter jurisdiction, and we affirm the judgment of the circuit court.\nOn May 6, 1991, the Commission entered a decision affirming the arbitrator\u2019s award. (McGee v. Ractian Construction Co. (1991), 91 Ill. Ind. Comm\u2019n 975.) In addition to affirming the June 26, 1990, arbitrator\u2019s decision, the Commission further ordered that defendant pay interest under section 19(n) of the Workers\u2019 Compensation Act (Act) (Ill. Rev. Stat. 1989, ch. 48, par. 138.19(n)), and provided that defendant receive a credit for any sums paid to or on behalf of plaintiff on account of the accidental injury. Neither the arbitrator nor the Commission determined the rate to be applied. Section 19(n) states:\n\u201cAfter June 30, 1984, decisions of the Industrial Commission reviewing an award of an arbitrator of the Commission shall draw interest at a rate equal to the yield on indebtedness issued by the United States Government with a 26-week maturity next previously auctioned on the day on which the decision is filed. Said rate of interest shall be set forth in the Arbitrator\u2019s Decision. Interest shall be drawn from the date of the arbitrator\u2019s award on all accrued compensation due the employee through the day prior to the date of payments. However, when an employee appeals an award of an Arbitrator or the Commission, and the appeal results in no change or a decrease in the award, interest shall not further accrue from the date of such appeal.\nThe employer or his insurance carrier may tender the payments due under the award to stop the further accrual of interest on such award notwithstanding the prosecution by either party of review, certiorari, appeal to the Supreme Court or other steps to reverse, vacate or modify the award.\u201d Ill. Rev. Stat. 1989, ch. 48, par. 138.19(n).\nThe June 26, 1990, decision of the arbitrator held defendant liable to plaintiff for the following: (1) temporary total disability benefits of $400 per week for 217 weeks, with credit for $69,600 paid on account of the injury; (2) permanent total disability benefits of $400 per week beginning February 20, 1990; and (3) $5,649.44 for necessary medical and rehabilitation expenses. Defendant did not seek judicial review of the Commission\u2019s decision. Plaintiff\u2019s petition recited that defendant had not sought judicial review \u201cwithin the 20 days as required by law.\u201d\nOn July 22, 1991, plaintiff filed the petition for application for entry of judgment herein pursuant to section 19(g) of the Act (Ill. Rev. Stat. 1989, ch. 48, par. 138.19(g)). Section 19(g) provides:\n\u201cExcept in the case of a claim against the State of Illinois, either party may present a certified copy of the award of the Arbitrator, or a certified copy of the decision of the Commission when the same has become final, when no proceedings for review are pending, providing for the payment of compensation according to this Act, to the Circuit Court of the county in which such accident occurred or either of the parties are residents, whereupon the court shall enter a judgment in accordance therewith. In a case where the employer refuses to pay compensation according to such final award or such final decision upon which such judgment is entered the court shall in entering judgment thereon, tax as costs against him the reasonable costs and attorney fees in the arbitration proceedings and in the court entering the judgment for the person in whose favor the judgment is entered, which judgment and costs taxed as therein provided shall, until and unless set aside, have the same effect as though duly entered in an action duly tried and determined by the court, and shall with like effect, be entered and docketed. The Circuit Court shall have power at any time upon application to make any such judgment conform to any modification required by any subsequent decision of the Supreme Court upon appeal, or as the result of any subsequent proceedings for review, as provided in this Act.\nJudgment shall not be entered until 15 days\u2019 notice of the time and place of the application for the entry of judgment shall be served upon the employer by filing such notice with the Commission, which Commission shall, in case it has on file the address of the employer or the name and address of its agent upon whom notices may be served, immediately send a copy of the notice to the employer or such designated agent.\u201d (Ill. Rev. Stat. 1989, ch. 48, par. 138.19(g).)\nPlaintiff also requested the court to order defendant to pay a 50% penalty for unreasonable and vexatious delay and a $10-per-day penalty from May 20, 1991, for failure to pay within 14 days following the Commission\u2019s affirmance of the arbitrator\u2019s decision. (See Ill. Rev. Stat. 1989, ch. 48, pars. 138.19(k), (1).) In addition to the penalties, the petition prayed the judgment include the following: $22,849.44 as and for the arbitrator\u2019s award; $25,369.89 as attorney fees, representing 20% of the amount awarded to date plus the first five years of permanency payments; $2,386.80 as costs; and interest calculated at the rate of 7.67% on the award from the date of arbitration to the date of judgment and on the accrued weekly permanency award until paid. Plaintiff admits in his brief that he subsequently withdrew his demands for penalties under sections 19(k), 19(1), and 16 of the Act (Ill. Rev. Stat. 1989, ch. 48, par. 138.16). Section 16 allows for the assessment of attorney fees and costs in the event a finding is made of unreasonable or vexatious delay, intentional underpayment of benefits, or engaging in frivolous defenses within the purview of section 19(k). Ill. Rev. Stat. 1989, ch. 48, par. 138.16.\nIn her memorandum of decision, the circuit judge advised the parties of the reasons for her decision with regard to attorney fees and costs as follows:\n\u201cI am of the opinion that since Plaintiff made no demand for payment before filing his petition and since Defendant made a nearly complete tender of the amount owed eight days after suit was filed, and since there could be some confusion about the calculation of interest, no attorney fees and costs should be awarded. The Court will enter judgment for Plaintiff and against Defendant for the amounts of the awards plus interest to the date of December 2, 1991.\u201d\nThe first issue to address is whether the circuit court had subject-matter jurisdiction. Just as jurisdiction to judicially review the Commission\u2019s decision may be invoked only upon strict compliance with the Act, which provides a purely statutory remedy (American Steel Foundries v. Industrial Comm\u2019n (1983), 96 Ill. 2d 513, 518-19, 451 N.E.2d 883, 885-86), strict compliance with the Act must also be had in order to invoke the circuit court\u2019s jurisdiction to enter a judgment pursuant to section 19(g). (Evans v. Corporate Services (1990), 207 Ill. App. 3d 297, 302, 565 N.E.2d 724, 728.) In arguing lack of subject-matter jurisdiction, defendant relies on the section 19(g) requirement that the decision of the Commission be final and the section 19(f)(1) provision that a proceeding for review of a Commission decision \u201cshall be commenced within 20 days of the receipt of notice of the decision of the Commission.\u201d (Ill. Rev. Stat. 1989, ch. 48, par. 138.19(f)(1); see also Perusky v. Industrial Comm\u2019n (1978), 72 Ill. 2d 299, 300-02, 381 N.E.2d 270, 271-72.) It is defendant\u2019s argument that plaintiff did not allege when defendant received the notice of the decision and, therefore, failed to allege the time for review had passed and the Commission decision was final.\nWe reject this argument for three reasons. First, defendant\u2019s pleadings in the circuit court supply the missing information and refute the argument. In defendant\u2019s request for admission of facts filed October 9, 1991, defendant recited that it received the Commission decision on May 13, 1991, so that the decision became final on June 3, 1991. The first paragraph of defendant\u2019s brief in the circuit court states the same facts and is supported by an exhibit, being a photocopy of the Commission decision stamped \u201cRECEIVED MAY 13, 1991.\u201d Since plaintiff\u2019s section 19(g) petition was filed in the circuit court on July 22, 1991, the Commission decision was then final, and the circuit court had subject-matter jurisdiction, provided of course no appeal had been taken in the statutorily allotted time. Second, plaintiff\u2019s petition alleged \u201c[t]hat said award was not appealed within the 20 days as required by law and therefore, such decision of the Industrial Commission has become final.\u201d Since defendant has not explicitly denied this allegation, it is admitted. (Ill. Rev. Stat. 1989, ch. 110, par. 2 \u2014 610(b).) Furthermore, the only responsive pleading defendant filed in the circuit court was a motion to dismiss, which did not challenge the allegation of finality of the Commission decision. In considering a motion to dismiss, with the exception of allegations of damages, all well-pleaded facts alleged in the attacked pleading are taken as true. (City of Marshall v. City of Casey (1989), 177 Ill. App. 3d 1065, 1069, 532 N.E.2d 1121, 1123.) The third reason for refusing to accept defendant\u2019s argument is that, ordinarily, the plaintiff would not know when defendant received notice of the Commission decision. It would be unfair to place on plaintiff the burden of alleging a fact he is incapable of knowing. Therefore, if defendant is aware of facts which demonstrate that the circuit court is without subject-matter jurisdiction, defendant should file a motion to dismiss pursuant to section 2\u2014 619(aXl) of the Illinois Code of Civil Procedure supported by affidavit in order to bring these facts to the trial court\u2019s attention. Ill. Rev. Stat. 1989, ch. 110, par. 2-619(a)(l).\nAs for the question of attorney fees and costs, we note that the courts are not required to award such costs in every section 19(g) case. (Wirth v. Industrial Comm\u2019n (1976), 63 Ill. 2d 237, 241-42, 347 N.E.2d 136, 138; Evans, 207 Ill. App. 3d at 303, 565 N.E.2d at 728-29.)\n\u201cHowever, the statute itself gives no authority to allow reasonable attorney fees and costs to be taxed against the party owing compensation unless that party refuses to pay the compensation, or some installment thereof, when it becomes due. McMurray v. Peabody Coal Co. (1917), 281 Ill. 218, 224, 226; see also Board of Education, 308 Ill. at 451; Franklin, 5 Ill. App. 3d at 735.\u201d (Emphasis in original.) Evans, 207 Ill. App. 3d at 303, 565 N.E.2d at 728-29.\nOne of the reasons argued by defendant, and relied on by the circuit court, for not imposing such attorney fees and costs in the case at bar is the fact that plaintiff never made a demand for payment. In affirming the circuit court, this court does not hold that a demand must be made in every case before an award of attorney fees and costs may be made, and clearly a demand is not a prerequisite to filing a section 19(g) petition in the circuit court. Instead, the presence or absence of a demand is one factor to be considered by the circuit court in assessing the unreasonableness of the failure to pay on the part of defendant. Other relevant factors to consider include, but are not limited to, the length of time which transpired between the date the Commission decision became final and the date of filing the section 19(g) petition in the circuit court; the negotiations and communications between the parties which took place during that period; whether the decision of the Commission leaves room for good-faith disagreement as to the amount of the payments owed by defendant, such as in this case where the arbitrator and Commission failed to designate the rate of section 19(n) interest and the per diem accrual rate of interest as to each portion of the award; and whether and when defendant made a good-faith offer of settlement.\nIn this case, the decision of the Commission became final on June 3, 1991. Plaintiff filed his section 19(g) petition on July 22, 1991. The record does not disclose what, if any, communications took place between the parties from June 3 to July 22, 1991. However, based on the defendant\u2019s request to admit facts, which was not denied, the record discloses that on July 26, 1991, plaintiff\u2019s attorney sent a letter to defendant\u2019s attorney returning two checks in the total amount of $26,162.88 which had been tendered in settlement of the award. He asked for full payment in accordance with the section 19(g) petition. In an August 1, 1991, letter from plaintiff\u2019s attorney sent by facsimile transmission to defendant\u2019s attorney, it was stated, \u201cI have not completed computation of the amount due under the award.\u201d However, he disagreed with defendant\u2019s computation because it failed to include attorney fees and penalties. Defendant had tendered a check dated July 30, 1991, in the amount of $56,369.09 and this was returned by plaintiff\u2019s counsel. In a letter dated August 7, 1991, plaintiff sought payment of $103,250.27. However, at the September 5, 1991, hearing, plaintiff withdrew his demand for attorney fees pursuant to section 16 and penalties under sections 19(k) and 19(1). At that hearing, plaintiff submitted a document entitled \u201cComputation of Judgment\u201d which represented a revised demand totalling $86,600.87. On September 6, 1991, plaintiff\u2019s attorney sent another letter by facsimile transmission revising the demand to $72,288.92, including a demand for attorney fees and costs totalling $14,455.54. Prior to the entry of judgment in the circuit court, there was filed an interim statement of additional attorney fees of $1,820.\nIn her memorandum of decision, the circuit judge specifically found that on July 30, 1991, defendant owed plaintiff $56,708.37, and on that date, defendant tendered $56,369.09, an amount $339.28 short of what was owed. These findings are not in dispute in this appeal. As already noted, the circuit court relied on the facts that there was a \u201cnearly complete tender\u201d and there \u201ccould be some confusion about the calculation of interest\u201d to deny attorney fees and costs.\nIn Wirth, a delay resulting from a dispute as to liability for interest was considered to be not a refusal to pay the compensation within the meaning of the Act and did not warrant ordering a section 19(g) defendant to pay attorney fees. (Wirth, 63 Ill. 2d at 241-42, 347 N.E.2d at 138.) In Evans, the Commission decision became final on July 24, 1989, and the section 19(g) petition was filed on August 15, 1989. At the time the petition was filed, the award had not yet been paid, but it was uncontested that the award was paid in full in August 1989, before the hearing was had. On those facts, the denial of attorney fees was approved, although we recognize the discussion in Evans was dicta. (Evans, 207 Ill. App. 3d at 299, 303-04, 565 N.E.2d at 726, 728-29.) Similarly, in Poe v. Industrial Comm\u2019n (1992), 230 Ill. App. 3d 1, 11, the refusal to grant attorney fees and costs was upheld where there was a dispute as to the amount of interest owed.\nIn Poe, the interest in dispute amounted to $503.36. In the present case, the difference between the tender and the actual amount owed including interest was $339.28. To allow plaintiff to recover $16,275.54 in costs and attorney fees because of a dispute over $339.28 would be a harsh and unconscionable result which was not contemplated by the statute. On the other hand, we recognize that the purpose of the Act is to protect injured employees, and their dependents, by providing a prompt, sure remedy for injuries and requiring that industry, rather than the individual, bear the cost of individual accidents. (Mier v. Staley (1975), 28 Ill. App. 3d 373, 379, 329 N.E.2d 1, 6.) To the extent that employers do not promptly pay awards, violence is done to the purposes of the Act. Therefore, where an unreasonable failure to pay has been demonstrated, a minor dispute over the calculation of interest may not avoid the imposition of attorney fees and costs.\nFinally, under section 19(n) of the Act, the arbitrator has a mandatory, statutory duty to set the rate of interest. Had the arbitrator\u2019s decision or the Commission\u2019s decision set forth the rate of interest under section 19(n), and the amount of interest to accrue on a per diem basis on each portion of the awards provided therein, the employer would not be able to raise a dispute as to the amount of interest accruing as a defense for failing to promptly pay. Although the Commission has a duty to set forth the rate of interest, the dispute over the calculation of interest was, to some extent, caused by the failure of plaintiff to request the arbitrator or the Commission to specify the interest in their respective decisions, or for the Commission to subsequently set the interest rate. See Hughes v. Industrial Comm\u2019n (1990), 196 Ill. App. 3d 143, 144-46, 553 N.E.2d 113, 113-14.\nAccordingly, the judgment of the circuit court of Sangamon County is affirmed.\nAffirmed.\nGREEN, P.J., and KNECHT, J., concur.", "type": "majority", "author": "JUSTICE McCULLOUGH" } ], "attorneys": [ "Patrick James Smith, of Delano Law Offices, P.C., of Springfield, for appellant.", "William J. Thomas, of Henry D. Noetzel & Associates, Ltd., of Peoria, for appellee." ], "corrections": "", "head_matter": "EARL McGEE, Plaintiff-Appellant, v. RACTIAN CONSTRUCTION COMPANY, Defendant-Appellee.\nFourth District\nNo. 4\u201491\u20140968\nOpinion filed July 9, 1992.\nPatrick James Smith, of Delano Law Offices, P.C., of Springfield, for appellant.\nWilliam J. Thomas, of Henry D. Noetzel & Associates, Ltd., of Peoria, for appellee." }, "file_name": "0929-01", "first_page_order": 949, "last_page_order": 957 }