{ "id": 79533, "name": "STEVEN BUNNOW Appellant, v. THE INDUSTRIAL COMMISSION et al. (Chicago Suburban Express, Appellee)", "name_abbreviation": "Bunnow v. Industrial Commission", "decision_date": "2002-01-24", "docket_number": "No. 1-00-3895WC", "first_page": "1039", "last_page": "1049", "citations": [ { "type": "official", "cite": "327 Ill. App. 3d 1039" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "456 N.E.2d 847", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "98 Ill. 2d 407", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3123313 ], "year": 1983, "pin_cites": [ { "page": "415-16" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/98/0407-01" ] }, { "cite": "658 N.E.2d 838", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1995, "opinion_index": 0 }, { "cite": "276 Ill. App. 3d 576", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 927668 ], "year": 1995, "pin_cites": [ { "page": "579" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/276/0576-01" ] }, { "cite": "714 N.E.2d 30", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1999, "opinion_index": 0 }, { "cite": "305 Ill. App. 3d 1047", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1208106 ], "year": 1999, "pin_cites": [ { "page": "1050" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/305/1047-01" ] }, { "cite": "442 N.E.2d 861", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "93 Ill. 2d 1", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3102707 ], "year": 1982, "pin_cites": [ { "page": "9-10" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/93/0001-01" ] }, { "cite": "703 N.E.2d 81", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1998, "opinion_index": 0 }, { "cite": "184 Ill. 2d 202", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 926963 ], "weight": 2, "year": 1998, "pin_cites": [ { "page": "221" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/184/0202-01" ] }, { "cite": "478 N.E.2d 498", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "132 Ill. App. 3d 891", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3440467 ], "year": 1985, "pin_cites": [ { "page": "893" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/132/0891-01" ] }, { "cite": "402 N.E.2d 584", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "79 Ill. 2d 45", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3069036 ], "year": 1980, "pin_cites": [ { "page": "56" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/79/0045-01" ] }, { "cite": "99 L 50558", "category": "reporters:state", "reporter": "Lans. Ch.", "weight": 2, "opinion_index": 0 }, { "cite": "99 L 50510", "category": "reporters:state", "reporter": "Lans. Ch.", "weight": 3, "opinion_index": 0 }, { "cite": "98 L 51168", "category": "reporters:state", "reporter": "Lans. Ch.", "weight": 3, "opinion_index": 0 }, { "cite": "442 N.E.2d 841", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "93 Ill. 2d 144", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3102477 ], "weight": 3, "year": 1982, "pin_cites": [ { "page": "148-49" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/93/0144-01" ] }, { "cite": "702 N.E.2d 545", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1998, "opinion_index": 0 }, { "cite": "183 Ill. 2d 499", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 209965 ], "weight": 3, "year": 1998, "pin_cites": [ { "page": "511-14" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/183/0499-01" ] } ], "analysis": { "cardinality": 901, "char_count": 25612, "ocr_confidence": 0.727, "pagerank": { "raw": 6.770845263994211e-08, "percentile": 0.40967137466315606 }, "sha256": "542ce727bdb090cf043f68dc673896656425705a1125137b2fb4f43a7fec8f11", "simhash": "1:e56588b5c83572b8", "word_count": 4140 }, "last_updated": "2023-07-14T20:55:57.852492+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "STEVEN BUNNOW Appellant, v. THE INDUSTRIAL COMMISSION et al. (Chicago Suburban Express, Appellee)." ], "opinions": [ { "text": "JUSTICE HOFFMAN\ndelivered the opinion of the court;\nThe Industrial Commission (Commission) awarded the claimant, Steven Bunnow, temporary total disability (TTD) benefits and medical expenses in connection with his application for adjustment of claim under the Workers\u2019 Compensation Act (Act) (820 ILCS 305/1 et seq. (West 1996)). The Commission also ordered the payment of attorney fees and penalties pursuant to sections 16 and 19 of the Act (820 ILCS 305/16, 19 (West 1996)), respectively, for the underpayment of TTD benefits. The circuit court of Cook County confirmed the Commission\u2019s decision. The claimant has appealed, arguing that he is also entitled to an award of attorney fees and penalties for the nonpayment of medical expenses. For the following reasons, we vacate the order of the circuit court, confirm in part and set aside in part the Commission\u2019s decision, and remand the case to the Commission with directions.\nOn December 2, 1996, the claimant was involved in an accident while driving a tractor owned by Champion Trucking (Champion) and hauling a trailer owned by Chicago Suburban Express (Suburban). The claimant\u2019s truck jack-knifed, fell on its side, slid into a concrete bridge, and burst into flames. It is uncontested that the claimant suffered severe injuries as a result of the accident, for which he has required extensive medical treatment.\nOn March 4, 1997, the claimant filed an amended application for adjustment of claim under the Act, naming both Champion and Suburban as his employers. On September 12, 1997, the claimant filed a petition seeking the payment of penalties and attorney fees for the underpayment of TTD benefits and the nonpayment of medical bills.\nOn January 23, 1998, an arbitrator conducted a hearing at which evidence establishing the following facts was introduced.\nIn December 1996, in addition to his full-time job, the claimant worked part-time driving a semi-truck for Champion, a cartage company located in Fredonia, Wisconsin. Champion hired the claimant in June or July 1995, after he responded to an advertisement in the newspaper for a line haul driver. The claimant worked two days per week for Champion hauling freight between Fredonia and Chicago, where he would deliver the freight to Suburban, which is also a cartage company. The claimant testified that, when he reported to work at Champion, he would get \u201cthe papers\u201d for the load he would be hauling from Jennifer Moegenburg, Champion\u2019s vice-president. According to the claimant, he would then do a safety inspection on his truck, make sure the truck was properly placarded, and drive to Suburban, which he described as a \u201cwarehouse transfer point.\u201d When the claimant arrived at Suburban, he would back Ms truck up to the warehouse or docking area, unhook the trailer, and give Ms papers to Suburban\u2019s dispatcher. According to the claimant, the dispatcher would give him the papers for his return load. The claimant would then check to make sure the truck was properly placarded, rehook the trailer, do a safety inspection, and drive back to Champion in Fredonia.\nThe claimant testified that it was always his understanding that Champion was his employer. Champion issued his weekly paychecks and withheld sums for the payment of taxes and social security. The claimant stated that, if Suburban gave him instructions regarding special handling of freight, he would comply with those instructions; although, he further testified that he had only received such special instructions from Suburban once, when he was told not to let a load which contained liquid freeze. According to the claimant, it was his understanding that Suburban\u2019s employees wanted his truck at their facility by 10 p.m. so they could unload it before the end of their shift. It was also the claimant\u2019s understanding that Suburban had the authority to fire him if he were driving recklessly, arrived at its facility intoxicated, or \u201cwas crummy\u201d at his job. The claimant further testified that the manifest and bills of lading for the loads he carried contained Suburban\u2019s name.\nAccording to the claimant, the accident at issue occurred around 11:30 p.m. on December 2, 1996, as he was driving from Chicago back to Fredonia. As no party contests the extent of the claimant\u2019s injuries or the fact that they arose from the accident in question, we will not recount the injuries he sustained or medical services he received.\nThe claimant testified that, since the date of the accident, he had been receiving $224 per week from Milwaukee Insurance. However, none of his medical bills had been paid. According to the claimant, he receives three letters in the mail per day regarding overdue medical bills, has stopped answering his telephone due to calls from creditors, and has received counseling to deal with financial pressures. The claimant further testified that his doctors had recommended various additional surgeries. One surgery in particular had been scheduled for the week of his deposition but was rescheduled because the doctors would not perform the surgery without guarantee of payment.\nChampion\u2019s vice-president, Jennifer Moegenburg, testified that Champion had entered into a business relationship with Suburban about 10 years prior, although the two companies had no written contract. According to Moegenburg, Champion\u2019s services were initially limited to picking up freight which Suburban drivers had delivered to Milwaukee and delivering it to local Suburban customers. About three years into the business relationship, though, Suburban asked Champion to also start doing line hauls to Chicago.\nThe evidence established that Champion used its own tractor for the line hauls but that the trailers it hauled were owned by Suburban. Champion was paid a flat line haul fee of $250 per load plus 25% of the total revenue of each load its drivers hauled. Champion paid for the fuel used and tolls incurred. Champion did not have its own authority to haul freight in Illinois. Consequently, Champion and Suburban entered into an equipment lease which provided in pertinent part as follows:\n\u201cRepresentations of Parties. Lessor [Suburban] represents that it is the owner of the equipment and has the authority to enter into this lease; that it gives the equipment over to the exclusive use, direction and control of Lessee [Champion] during periods when the equipment is operated by or for Lessee; and that it will cooperate fully with Lessee in complying with applicable statutes and regulations. Lessee represents that it is familiar with and will comply with all statutes and regulations, state and federal, regarding safety or otherwise.\u201d\nThe lease also provided that \u201cthis lease is subject to the provisions of the Illinois Commercial Transportation Law, as well as other provisions of the Illinois Vehicle Code, and regulations adopted thereunder. ICC lease regulations are published in 92 Ill. Adm. Code 1360.\u201d Section 1360.40(b)(1) of Title 92 of the Illinois Administrative Code provides:\n\u201cThe lessee shall have exclusive possession and control of leased equipment during all periods when the equipment is operated under the lease. Such exclusive possession and control shall extend also to the drivers of leased equipment.\u201d 92 111. Adm. Code \u00a7 1360.40(b)(1) (amended October 12, 1993).\nBoth Moegenburg and Douglas Stephan, Suburban\u2019s operations manager, testified that they had not read the back of the lease, which is where the above-quoted lease provisions appear. Stephan testified that Suburban\u2019s only intention in entering into the lease was to allow Champion to operate in Illinois pursuant to Suburban\u2019s ICC authority.\nMoegenburg testified that Champion had Suburban\u2019s name and ICC number painted on the doors of the tractors it used for the line hauls and that Suburban never admonished Champion not to do so. Moegenburg acknowledged that Champion is solely responsible for training its drivers, determining the drivers\u2019 routes, and maintaining its tractors. Champion also performs all employee evaluations and determines the amount of raises.\nStephan testified that Champion chooses the driver and the truck to be used for the line hauls. Stephan further testified that Suburban did not take part in the claimant\u2019s hiring, nor did it give the claimant instructions as to how to perform his job or when to arrive in Chicago. According to Stephan, if any of Suburban\u2019s customers had a request that a load be picked up at a certain time, he would pass that information on to Champion. If a Suburban customer had a complaint about a Champion driver, Stephan would give the customer Champion\u2019s telephone number. Stephan further testified that, if a Champion driver arrived at the dock intoxicated, he would not be allowed to pick up a load and Stephan would inform Champion of the incident. Similarly, if Stephan received a complaint that a Champion driver was driving recklessly, he would turn the complaint over to Champion. Stephan testified that Suburban did not have the authority to fire the claimant.\nFollowing the hearing, the arbitrator issued a decision finding, inter alia, that the claimant was an employee of Champion and that Champion did not have a borrowing/loaning employer relationship with Suburban. The arbitrator awarded the claimant TTD benefits of $450.56 per week for 41 weeks and ordered Champion to pay $777,584.57 in medical expenses. Additionally, the arbitrator ordered that \u201cCHAMPION TRUCKING and CHICAGO SUBURBAN EXPRESS, and each of them shall pay\u201d the claimant penalties and attorney fees in the following amounts: $4,837.87 pursuant to section 19(k) of the Act (820 ILCS 305/19(k) (West 1996)); $2,500 pursuant to section 19(Z) of the Act (820 ILCS 305/19(l) (West 1996)); and $1,467.57 in attorney fees pursuant to section 16 of the Act (820 ILCS 305/16 (West 1996)). These penalties were for nonpayment of TTD benefits only, not medical expenses.\nChampion and Suburban both filed petitions for review of the arbitrator\u2019s decision. Champion argued that the arbitrator erred in finding that Suburban was not a borrowing employer and in assessing section 19(k) penalties and section 16 fees. Suburban asserted that the arbitrator erred in assessing section 19(k) penalties and section 16 fees against it after having concluded that it was not the claimant\u2019s employer. The claimant did not file a petition for review of the arbitrator\u2019s decision. He did, however, file a statement of exceptions in which he argued that the arbitrator erred in failing to find a borrowing/lending employer relationship between Champion and Suburban. The claimant did not raise the issue of penalties and attorney fees for the nonpayment of medical expenses in his statement of exceptions.\nOn October 21, 1998, the Commission heard oral argument on the petitions for review. The following day, the Illinois Supreme Court issued its decision in McMahan v. Industrial Comm\u2019n, 183 Ill. 2d 499, 702 N.E.2d 545 (1998), in which it held that penalties pursuant to section 19(k) of the Act and attorney fees pursuant to section 16 of the Act can be awarded based on the nonpayment of medical expenses. The McMahan decision constituted a departure from the supreme court\u2019s earlier holding to the contrary on this same issue in Childress v. Industrial Comm\u2019n, 93 Ill. 2d 144, 442 N.E.2d 841 (1982). Thereafter, on December 7, 1998, before the Commission issued its decision in this case, the claimant filed a motion for reconsideration on the issue of penalties based upon McMahan. This motion is not contained in the record.\nOn December 10, 1998, the Commission issued its decision on review. The Commission found that: a borrowing/loaning employer relationship existed between Champion and Suburban; Suburban, as the borrowing employer, is primarily responsible for the payment of all compensation, medical expenses, penalties, and attorney fees; and Champion, as the loaning employer, is secondarily liable for all compensation, medical expenses, penalties, and attorney fees. In support of its conclusion that Suburban was a borrowing employer, the Commission relied upon the lease agreement between Champion and Suburban and upon the following facts: Suburban instructed the claimant as to what time he needed to arrive in Chicago; Suburban had given the claimant special delivery instructions on occasion; Suburban\u2019s name and ICC number appeared on the tractor; all trailers hauled belonged to Suburban; and Suburban had the ability to fire the claimant if he was driving recklessly or arrived for work intoxicated. The Commission left undisturbed the amount of TTD benefits and medical expenses awarded and the amount of penalties assessed pursuant to subsections (k) and (l) of section 19 of the Act, but modified the amount of attorney fees to be paid pursuant to section 16 of the Act, lowering it from the $1,467.57 awarded by the arbitrator to $967.57. The Commission\u2019s decision contains no discussion of the issue of penalties for the nonpayment of medical expenses.\nOn December 23, 1998, the claimant filed an amended motion for reconsideration on the issue of penalties and a motion to recall the Commission\u2019s decision pursuant to section 19(f) of the Act (820 ILCS 305/19(f) (West 1996)). These motions are not contained in the record.\nOn December 29, 1998, Suburban filed a request for summons and review in the circuit court of Cook County, which was docketed as number 98 L 51168. Thereafter, on January 7, 1999, Suburban filed before the Commission a motion to quash and strike the claimant\u2019s motion for reconsideration on the issue of penalties and his motion to recall the Commission\u2019s decision. On January 13, 1999, the claimant filed before the Commission yet another motion for reconsideration on the issue of penalties. Neither the January 7 motion nor the January 13 motion is contained in the record.\nOn January 26, 1999, Commissioner Michael Weaver conducted a hearing on the parties\u2019 motions, a transcript of which hearing is contained in the record. On May 7, 1999, Commissioner Weaver issued an order granting Suburban\u2019s motion to quash and denying the claimant\u2019s motions to reconsider and his motion to recall the Commission\u2019s decision pursuant to section 19(f). In his order, Commissioner Weaver found that the Commission\u2019s December 10, 1998, order \u201cdoes not contain an error on the computation of penalties\u201d and that \u201cthe Commission lacks jurisdiction to reinstate or reconsider its Decision and Opinion on Review *** due to subsequent legal precedence [sic] which was not available to the Commission until after its decision was rendered.\u201d Thereafter, on May 26, 1999, the claimant filed a request for summons and review in the circuit court of Cook County, which was docketed as number 99 L 50510. On June 7, 1999, Suburban filed a request for summons and review in the circuit court, which was docketed as number 99 L 50558. The three actions for judicial review (docket numbers 98 L 51168, 99 L 50510, and 99 L 50558) were subsequently consolidated by order of the circuit court.\nBefore the circuit court, Suburban argued that the Commission\u2019s finding that it had a borrowing/lending employer relationship with Champion is against the manifest weight of the evidence. The claimant argued that the Commission\u2019s decision denying penalties based on the nonpayment of medical expenses is against the manifest weight of the evidence. The circuit court initially found that the claimant\u2019s petition to recall the Commission\u2019s decision pursuant to section 19(f) did not toll the time for the filing of a request for summons and review and that, accordingly, the claimant\u2019s action, which was docketed as number 99 L 50510, was untimely and did not vest the court with jurisdiction. The court went on to state, however, that, by virtue of the timely request for summons and review Suburban filed on December 29, 1998, which was docketed as number 98 L 51168, it had jurisdiction to review the entire record and could consider the claimant\u2019s contentions pursuant thereto. Ultimately, the circuit court rejected the arguments of both parties and confirmed the Commission\u2019s December 10, 1998, decision. The claimant filed the instant timely appeal.\nThe claimant first argues that Commissioner Weaver erred in finding that his motion to recall the Commission\u2019s December 10, 1998, decision was not a proper motion pursuant to section 19(f) of the Act and that it did not vest the Commission with jurisdiction to modify its decision.\nPursuant to section 19(f) of the Act, a decision of the Commission is conclusive unless a proceeding for judicial review of the decision is commenced by the filing of a request for the issuance of a summons within 20 days of the receipt of the Commission\u2019s decision. 820 ILCS 305/19(f) (West 1996). The Commission may, however, on its own motion or the motion of any party, recall its decision in order to correct \u201cany clerical error or errors in computation\u201d within 15 days of the receipt of the decision. 820 ILCS 305/19(1) (West 1996).\nThe question presented here is whether the claimant\u2019s motion to recall was properly brought pursuant to section 19(f).\nThe parties agree that the Commission awarded section 19(k) penalties based only on the amount of TTD benefits to which the claimant was entitled at the time of the award. The claimant asserts that the Commission committed a computational error because it should have computed the amount of penalties based on not only the TTD benefits to which he was entitled, but on the amount of medical expenses to which he was entitled as well. Suburban disputes the notion that the Commission\u2019s decision contained a computational error, arguing that the Commission did not simply forget to include the amount of medical expenses due the claimant when it computed section 19(f) penalties but that the Commission never intended to award penalties for the nonpayment of medical expenses. As such, it contends, the claimant\u2019s motion to recall the Commission\u2019s decision was nothing more than a motion for reconsideration of the Commission\u2019s denial of penalties for the nonpayment of medical expenses. Motions for reconsideration are not allowed by the Act and, accordingly, do not toll the time for the filing of a summons for review in the circuit court. See Wilson-Raymond Constructors Co. v. Industrial Comm\u2019n, 79 Ill. 2d 45, 56, 402 N.E.2d 584 (1980); Chambers v. Industrial Comm\u2019n, 132 Ill. App. 3d 891, 893, 478 N.E.2d 498 (1985).\nThe word \u201ccomputation\u201d is defined not only as the \u201cthe act or action of computing\u201d but also as \u201ca way or system of reckoning.\u201d Webster\u2019s Third New International Dictionary 468 (1993). In our opinion, by this definition, the term \u201ccomputational error\u201d encompasses both the use of an incorrect mathematical formula and any mistakes in performing the mathematical functions, such as addition or multiplication, needed to implement that formula. In order to determine whether the Commission made a computational error in calculating the amount of penalties, we look to section 19(k).\nSection 19(k) of the Act provides that, where appropriate, the Commission \u201cmay award compensation additional to that otherwise payable under this Act equal to 50% of the amount payable at the time of such award.\u201d 820 ILCS 305/19(k) (West 1996). Thus, the formula for calculating section 19(k) penalties can be stated as: (amount of compensation payable) x .50. Our inquiry cannot end there, as we must determine what constitutes compensation.\nIn Childress, our supreme court held that the term \u201ccompensation,\u201d as used in both sections 16 and 19(k) of the Act, was limited to compensation due the claimant in the form of lost wages or TTD benefits. See Childress, 93 Ill. 2d at 148-49. In McMahan, though, our supreme court overruled its prior holding and held that the term \u201ccompensation,\u201d as used in the relevant sections, is not limited to compensation for lost wages, but also includes compensation due in the form of payment of medical expenses. McMahan, 183 Ill. 2d at 511-14. As stated earlier, McMahan was decided aft\u00e9r the Commission had conducted oral argument in the instant case but before it issued its decision. Although Suburban argues, and the circuit court found, that McMahan announced a new rule of law and, thus, should only be applied prospectively and not to the instant case, we cannot agree. In Scott v. Industrial Comm\u2019n, 184 Ill. 2d 202, 703 N.E.2d 81 (1998), issued the same day as McMahan, the supreme court reversed in part the circuit court\u2019s order confirming the Commission\u2019s decision and remanded the case to the Commission with directions to, inter alia, reconsider the matter of penalties and fees. In doing so, the Scott court stated that \u201con remand the calculation of penalties, if any, should be guided by our recent decision in McMahan v. Industrial Comm\u2019n, 183 Ill. 2d 499 (1998), which overruled in part Childress v. Industrial Comm\u2019n, 93 Ill. 2d 144 (1982).\u201d Scott, 184 Ill. 2d at 221. Thus, it is clear that our supreme court intended the rule announced in McMahan to apply to pending cases.\nSuburban, however, contends that McMahan is inapplicable here for yet another reason. Suburban correctly states that McMahan does not stand for the proposition that penalties and attorney fees must always be assessed for the nonpayment of medical expenses. It asserts that, unlike the employer in McMahan, its refusal to pay the claimant\u2019s medical expenses was reasonable based upon the facts in evidence. As such, Suburban contends, the Commission was justified in refusing to assess penalties against it for the nonpayment of medical expenses.\nIt is true that penalties will not be imposed in circumstances where an employer reasonably could have believed that the claimant was not entitled to compensation. Board of Education of the City of Chicago v. Industrial Comm\u2019n, 93 Ill. 2d 1, 9-10, 442 N.E.2d 861 (1982); Complete Vending Services, Inc. v. Industrial Comm\u2019n, 305 Ill. App. 3d 1047, 1050, 714 N.E.2d 30 (1999). However, the question of whether an employer acted unreasonably or vexatiously in declining to pay benefits under the Act or whether it acted reasonably under the circumstances is one of fact to be resolved by the Commission, whose resolution of the matter will not be disturbed on appeal unless contrary to the manifest weight of the evidence. Roodhouse Envelope Co. v. Industrial Comm\u2019n, 276 Ill. App. 3d 576, 579, 658 N.E.2d 838 (1995); Continental Distributing Co. v. Industrial Comm\u2019n, 98 Ill. 2d 407, 415-16, 456 N.E.2d 847 (1983). In awarding the claimant penalties pursuant to section 19(k) of the Act and attorney fees pursuant to section 16 of the Act based on the underpayment of TTD benefits, the Commission implicitly found that Suburban\u2019s refusal to pay such benefits was unreasonable or vexatious. See 820 ILCS 305/19(k), 16 (West 1996). The trial court confirmed the Commission\u2019s decision, and Suburban has not appealed. Suburban has never contested the reasonableness of the claimant\u2019s medical expenses or that they are wholly attributable to his December 2, 1996, accident. As such, there was never any question that, if Suburban was hable to pay the claimant TTD benefits, it was also liable to pay all of the medical expenses at issue. Accordingly, if Suburban\u2019s failure to pay TTD benefits was unreasonable or vexatious, as the Commission implicitly found, so too was its failure to pay the claimant\u2019s medical expenses.\nAs we have determined that the rule announced in McMahan applies to the instant case, it follows that the formula which the Commission was required to use in calculating the claimant\u2019s section 19(k) penalties is as follows: (TTD benefits + medical expenses) x .50. The Commission, however, computed the penalty using the following incorrect formula: (TTD benefits) x .50. We find that, as the Commission used the wrong formula to calculate section 19(k) penalties, its December 10, 1998, decision contained a computational error. As such, the claimant\u2019s motion to recall was properly brought pursuant to section 19(f), and the Commission erred in denying the claimant\u2019s motion to recall its decision to correct the computational error.\nFor the reasons stated above, we find that the circuit court erred in confirming the Commission\u2019s decision in its entirety. As such, we: (1) vacate the circuit court\u2019s order confirming the Commission\u2019s decision in its entirety; (2) confirm the Commission\u2019s decision only with respect to the award of TTD benefits and medical expenses and to the award of section 19(Z) penalties, which are not in dispute; (3) set aside the portion of the Commission\u2019s decision awarding the claimant section 19(k) penalties and section 16 attorney fees; and (4) remand the case to the Commission with directions that it determine the proper amount of section 19(k) penalties to which the claimant is entitled in accordance with McMahan and, after doing so, to assess the amount of attorney fees it deems reasonable pursuant to section 16 of the Act.\nCircuit court order vacated; Commission\u2019s decision confirmed in part and set aside in part; cause remanded to the Commission with directions.\nMcCULLOUGH, P.J., and O\u2019MALLEY, HOLDRIDGE, and RAR-ICK, JJ., concur.", "type": "majority", "author": "JUSTICE HOFFMAN" } ], "attorneys": [ "Kenneth B. Gore, Ltd., of Chicago (Mark A. DePaolo, of counsel), for appellant.", "Meachum, Spahr, Cozzi, Postel & Earl, of Chicago (Richard S. Zenz, of counsel), for appellee." ], "corrections": "", "head_matter": "STEVEN BUNNOW Appellant, v. THE INDUSTRIAL COMMISSION et al. (Chicago Suburban Express, Appellee).\nFirst District (Industrial Commission Division)\nNo. 1-00-3895WC\nOpinion filed January 24, 2002.\nRehearing denied March 11, 2002.\nKenneth B. Gore, Ltd., of Chicago (Mark A. DePaolo, of counsel), for appellant.\nMeachum, Spahr, Cozzi, Postel & Earl, of Chicago (Richard S. Zenz, of counsel), for appellee." }, "file_name": "1039-01", "first_page_order": 1057, "last_page_order": 1067 }