*1 We, also, of the statute referred (sec. to. proper interpretation 41) We, therefore, see no basis for it instant find no applying case. error in the trial on the motion for ruling court’s assessmеnt expenses. stated,
For the reasons the Circuit Court of La Salle County affirmed. hereby
Judgment affirmed. SCOTT,
STOUDER concur. JJ., Phillip E. v. Gen Petitioner-Appellee, Smith, Corporation, Co. d/b/a al., Company, et Respondents-Aрpellants. Deck Oil 72-318;
(No. Third April District *2 ALLOY, J., concurring. specially P. Noetzel,
Henry Peoria, of for appellants. Keefe, Island, of Rock for appellee. Edward the DIXON delivered the of court: opinion Mr. JUSTICE 17, E. May Smith to the petitioner-employee Phillip applied On 1971, 48, under Ill. Henry County Court of Stat. ch. sec. Circuit Rev. against for Gen judgment, employer-respondent, Co. 138.19(g) insurer, its The North River Insurance on a Corporation, Company, 28, of the Industrial Commission entered March final award 1972 to en of amounts that had accrued and were force collection due when no tender was made by respondents or after After payment many requests. its thе Circuit Court included in hearing, judgment petitioner, amounts that had accrued under the award to date of judgment additional sum of for the $3396.45 but also costs and employee’s fees both in attorney proсeedings before the Industrial Commission and the Circuit Court. of that Appellants complain only of portion attorney’s allowed fees and which costs. Since no judgment review of an involved, the Industrial Commission is order of appellants’ direct appeal Court was transferred this to the to Court. Supreme construction of section involves appeal 19(g) the Workmen’s Compensation Act Rеv. ch. (Ill. 138.19(g)), ap Stat. plicable portions of which read: “* * # # * certified party either of the may present copy final, Commission, decision of same has become when * * * * * * for the providing compensation * * to the render Circuit Court said court shall Whereupon * *. judgment In case refuses employer where * * * award the court
compensation to such final according * * # * * * shall tax as the reаsonable costs costs fees in the arbitration and in en attorney the court proceedings # * tering the *. judgment * * * shall not be entered until notice Judgment days’ * * shall be served “The purpose section is in сases 19(g) speedy to permit judgment where there has been a refusal reduce the award and a need to the award to its A compel further payment. purpose compensate a claimant who is incur additional compelled expense reason of the refusal to costs and award him court by allowing attorney fees.” Franklin Wellco Ill.App.3d brain and skull on Oct. employee sustained injuries while Henry at station at Geneseo in employed respondents gasoline *3 28, County. in its Decision on entered March 1972 Eventually Review the Industrial Commission held tire to be an award entitled tо employee permanent for total the amount of week for 267 per $56 disability weeks 1 week plus at and thereafter a lifetime ($15,000 pen $48 total) sion of $150 The March final per April month. 28 award became 1972. The amount owed under the at the time of was entry award its $7989.38. Interest on this amount from and March began accruing after 28, 1972. (Proctor Community Hospital 7.) v. Industrial 50 Ill.2d Moreover, during week an additional еvery following $56 March 1972 $15,000 payment became due until the full was paid. final
After the award became the made repeated employee’s attorney was for and not even all) nothing forthcoming, requests payment (4 Finally, was made to the Circuit weekly application $56 payments. filing for award under sec. The fee 138.19(g). Court $31. was insurer offered a
The next draft day representative condition thаt release amount of with a endorsement constituted a $8288 and full There was then due the offer refused. $8447 settlement. the insurer offered drafts with the condition that week following did endorsement was a full relеase and which not contain in- accrued terest. The offer was refused.
109 for further occurred until on the Nothing hearing earlier drafts judgment 9 later. its case the insurer offered its days During and an additional 23Mаy ($73.50) draft for interest accrued when interest court costs was in fact No to tender attempt $85.36 due. was made and not an additional due was though weekly payment $56 tendered.
After the hearing was cоncluded the trial court entered judgment the full amount due and taxed as costs itemized ($8578.74) $3396.45 as follows:
It is apparent from the record that die insurer herein denied owing never intended to interest due on thе award and that for its con- venience it intended to weekly awards rather than monthly weekly. Even in its reply that, brief it argues “interest became never vested until judgment”. No interest was ever offered until the hеaring and then less than the amount The cost of the due. fee was never filing tendered at all.
As a rule, general a tender must include to which everytiiing entitled, creditor is and a tender of less sum is any nugatory inеffective as a Reed, tender. v. (Colby 99 It 484.) U.S. L.Ed. must include interest due and costs then due as accrued. (Annot. A.L.R. Tender, It is the 8.) of the duty debtor make C.J.S. 7 — sure that his tender is sufficient in amount. An offer of amount less than due wherе with coupled conditions which renders its acceptance creditor an admission that no greater amount is due is tender at Kane, v. all. Ortman 613; Tender; 34 I.L.P. Ill. 52 Am.Jur. Tender, sec. 25. was entitled to interest on thе award and the insurer
knew or should have known it. (McMurray Peabody Coal *4 218, 226; Ill. Board, Traction Co. Chicago v. Industrial 282 235.) Ill. As for the $56 weekly payments was employee entitled to be paid and not weekly monthly. 138.8(b)5 Sec. “All provides: of payments compensаtion shall be made not later than 2 weeks after the interval for which is compensation is payable.” that an import is to employee be paid promptly.
110 an administra-
Insurer that since the Act argues of 19(k) provides sec. tive that that must be before remedy application exhausted remedy the Circuit Court. Com., Ill.2d insurer has cited Board Education Industrial v. of In that case the under of the Act brought (k)
167.
proсeeding
sec.
and has no
the court on
application
page
here
as was observed
except
by
think, however,
171. “We
that
cases would
employers
compensation
be well advised to
as
as
make
of awards
soon
payments
practicable
avoid this
The case
and the
of sanctions.”
question
possible application
was distinguished
in Proctor
Sweitzer
by the
Court
9.
Suрreme
page
Com.,
has
Industrial
394 Ill.
also cited
insurer
no
by
certainly
ap
here. The
de
plication
court there held that a
of an arbitrator’s
review
cision
by
commission a
to a review
the Cirсuit Court.
precedent
by
Com.,
Sanchez v. Industrial
There for insurer’s that relief sec. position is no under precedent first Commission be afforded without 138.19(g) applying cannot under sec. and both Voorhees and Proctor the con 138.19(k) approve the sections In addition to obvious differences in trary procedure. for vexatious and failure to “com (k) delay speaks only penalties pay for failure or refusal to pensation” speaks penalties never “award”, addressed to for refusal “final where is (g) penalties awards”, and is a method of enforcement of final awards. back Going for a under a to the Commission 50% does not penalty (k) provide method of enforcement of could still fail or refuse payment; respondent amount. larger the Illinois has
Under Act the Commission no to enforce power of its payment own award final award can be en only way short, forced is ad Circuit In there is no proceeding Court. ministrative and therefore none to remedy be exhausted. Court in Voorhees v. Indus 138.19(g) Suрreme
In interpreting established two principles: trial Ill.2d due the is under the final award properly
1. If anything at the time judgment the Commission Court should enter as then the Circuit pro- made in 19(g). vided or tender of full is a defense Full payment complete for judgment.
to the employee’s application
Ill it the insurer made no In the case at bar that undisputed whatever, amount, filing or tender kind in to any any prior many of so on view judgment May delay necessary was nоt have It could been inadvertent. requests hardly he Circuit Court for the filing to incur the expense had a full to proceed hearing judgment. ac- the award demonstrated its refusal to
Respondent’s cоnduct cording to its terms and the Circuit Court so found. correctly also assert in a number of oflier matters this
Respondents
appeal
not
trial
raised for the first time
raised
Court and which cannot be
in this cоurt.
Richards
Industrial
The judgment of the Circuit Court of is affirmed. County Henry Affirmed.
STOUDER, J., concurs. PRESIDING ALLOY concurring:
Mr. specially JUSTICE that, reluctant concurrence in the above case stems from the fact My as stated in the case of Franklin v. Wellco 5 Ill.App.3d N.E.2d “The statute states that reasonable fees shall be attorney’s taxed when the a refuses to the award.” I that employer recognize deliberate amount to refusal delay may еssentially and that this becomes a of fact for determination a question circuit court as trier of fact. however, I it is necessary, believe that every delay emphasize and of itself could be construed to amount to refusal to A pay. good faith would not fall delay into this This cause is certainly category. determined that basis the circuit court found that the delay mean, mean, tantamount It refusal. does not and should not that should be a any delay basis for a that finding invoked for penalties vexatious and refusals delays are available in all cases where pay- ment is not made in accordance with precisely statutory provisions.