*1 Champaign County judgments of the Court of are Circuit affirmed.

Judgments affirmed. MILLS, JJ.,

SMITH concur. McCormick, Petitioner-Appellee, McDougal- Robert N. v. Respondent-Appellant. Co., Hartmann No. 68-58. Gen. Third District. August 1, 1969. Rehearing 9,1969. September denied ALLOY, J., dissenting.

Heyl, Royster, Allen, Peoria, ap- Voelker & for pellant.

Moehle, Moehle, Sincock, Washington, Reardon and appellee. for

STOUDER, P. J. McCormick, Plaintiff-Appellee, Robert commenced this County seeking action the Circuit Court of Tazewell Commis- Industrial enforce an of the Illinois award McDougal- employer, his former entered sion court Defendant-Appellant. Company, Hartmann *2 fol- appeal against and judgment this entered defendant Illinois appeal an award This is not an from lows. judgment appeal a an from Industrial Commission but is implement an award proceedings instituted to entered in Commission. 1959, substantially undisputed. plain- In The facts are tiff, employed employee, hereinafter referred to while as by employer, defendant, sus- hereinafter referred to injury working project, on a road which tained an while disability. permanent Employer in total and resulted his injuries compensable under the admitted that such were Compensation paid Act and the benefits there- Workmen’s 1965, employee provided prior in until 1965. to Sometime filed a claim with the Claims on the basis Court of injuries negligence his were the result of the of Employer of Illinois. aware that such a claim State according facts, had filed and its been to statement of employee a sent letter both to the and to the of State indicating Illinois its The effect of such letter interest. an is not issue in this case. In due course the Court of employee an Claims made award in favor of $25,000, paid of amount amount was thereafter employee. employee pay The declined to to such amount any part employer thereupon thereof payments to make further ceased to em- Compensation ployee Act. Em- under the Workmen’s ployee In- thereafter filed his with the Illinois and an award dustrial Commission was entered Arbitrator, thereafter affirmed the Industrial Com- being mission, employee. in favor of No made award, employee on such instituted suit in the circuit court, seeking alleged to recover due as argued filing Employer the action. date of the that no due under amount was the Commission’s award against because it was entitled a to take as credit $25,000 by employee award the received from the State paid employer. Illinois and not The court trial re- jected argument employer’s judgment and entered giving favor of on the award without credit to employer for the amount claimed and it this action of is assigns the trial court which as error. only appeal The issue on this whether an amount received an a from paid but not to his the em- taken ployer aas credit the latter’s 48, Compensation Act, under benefits c seq., 138-1 Ill et Rev 1967. § Stats controversy (b), c basis injury provides, Rev Stats “Where payable death for which under this Act creating legal was caused liabil *3 under circumstances ity damages part person for on the of some other than employer pay damages, legal may proceedings his then against damages person be taken such other to recover notwithstanding liability employer’s payment of or such pay compensation case, under Act. such this In how ever, brought by person if the action such other injured employee personal representative or his and judgment paid, is obtained and or settlement made person, suit, with such other either with or then without employee personal from the amount received or representative paid employer there shall be to the compensation paid paid amount of or to him be to such personal including representative or amounts paid paid pursuant provisions para or to be to the graph (a) injured Act. Section ... If the this personal representative agree his or shall to re employer accept ceive from the from any payment compen on account of such sation, proceedings same, or to institute to recover the may upon any the said have or claim a lien award, judgment fund of which such out might compensated party. . . The be third . from such employer may, join thereafter ac- at time said upon after tion his motion so that all orders of court hearing judgment protec- shall be for his made . tion. . .”

Arguing denying the trial erred in the credit court claimed, employer conclusion the trial contends the contrary court to the Industrial award. Commission’s earlier, employee’s indicated action in trial court As sought enforcement of an award his favor supposed Industrial Commission. It em- ployer asserted its for credit before the arbitrator and before the Industrial Commission since only reason had compensation payments it for cessation of in 1965. An examination of the order award of the Com- mission discloses that the Board not did make find- ing regarding the allowance or employ- disallowance of fact, er’s claimed credit. In there is no mention of the anywhere claimed credit in the award and it were if argument for the parties contrary we would have no reason to believe that the issue of the claimed credit was considered provi- Commission. The sion of the award supports asserts its conclusion that the credit was provides, allowed employer shall “. .. have money, credit for all sums of any, if paid petitioner heretofore on account of accidental injuries August 10, sustained on 1959.” parties Both concede that customary this is the usual phraseol- ogy of a Commission consequence award and is a *4 practice of the Commission not to be concerned with the respecting mechanical calculations prior either hearing to the prior or entry to the of the award. The contingent conditional or provision quoted nature of the not, opinion, does in our support the conclusion that particular payment or thereby credit approved. was

349 conflicting argument reduces This conten any finding tions as to whether the absence of with respect thereto is an allowance or a disallowance of the having Employer, presented credit claimed. an affirma defense, tive we inclined that are to believe legal failure to allow in the credit was effect disal lowance thereof. the Commission’s silence However interpreted also be an indication of that it had belief no authority dispute dispute to determine the or that the appropriately more resolved in an enforce action to High award. Board of of Education Hist. No. 502 School Commission, 445,140 39, 48, v. Industrial Ill and c 308 NE (g), party Ill 138-19 Rev 1967. neither § Since Stats solely award, but, provisions relies on the on the arguments contrary, presented have on merits question, appropriate deem we it to consider the case on its merits. dealing appear

There to be decided few cases with the application 48, (b), 1967, of c Ill Rev Stats appear as there cases are to be of little assistance resolving the issue before us. In the cases cited three right employer, employer’s enforcement of reim sought by (Employer bursement was lien Mut. Cas. Co. Co., App2d 124, v. Trimon Elevator 391) Ill 217 NE2d 71 (Sjoberg Ryerson Joseph intervention v. T. & Sons, App2d 414, 8 132 NE2d Ill and Arnold Lies Co. Legler, v. 813). Such cases right affirm the pro to reimbursement as statutory approve vided Statute and also remedies designed protect right. or enforce the reimbursement question concerning employ In the instant case no arises right and, fact, er’s a lien or to intervene failure of avail concedes itself of employer’s such remedies does not bar reim bursement. employee’s

As we position, understand he admits the existence reimbursement but denies that *5 obliga- employer is entitled to seek enforcement of such by remedy by employer. Employer’s tion the invoked the position is that it entitled to claim the credit as it did because otherwise would receive double recovery. Initially party it should observed neither be the makes nature or source of based on the third-party recovery. right injured employee

The of an and en to receive joy Compensation payments the benefits of Workmen’s by specially protected Chapter 138-21, Act. the § 1967, provides, payment, claim, Rev Stats “No award assignable or subject decision under this Act be shall or any lien, attachment, any way or held liable in for any lien, debt, penalty damages. compensation allowed award or decision of the Commission shall preference be entitled to a over the unsecured debts wages employer, of the excepted, contracted after injury employee. date of the to an A decision or award against the Commission compensation an for Act, agreement under this or a written an shall, upon filing of a copy certified of the agreement, decision or said may be, case with the county, recorder of deeds upon constitute a property lien all with county, paramount in said liens, to all other claims or except mortgages, deeds, wages trust for or taxes. Such liens be enforced provided in the manner for mortgages foreclosure of under the laws of this State.” See East Moline Linn, Works Credit Union v. App2d 97, 51 Ill 910, illustrating applica tion of this section. The exemption breadth of the de legislature clared forms a firm sup foundation porting of an to receive the benefits provided as the claims of others. legislature

The intention protect the em- ployee’s benefits under the isAct further demonstrated c 138-8(j)2. provides, “Nothing Such section give

contained in shall Act be construed to the em- *6 ployer right the or insurance carrier the to credit for by payments or benefits received the other compensation payments Act, than provided and where the com- receives other than pensation payments, salary, partial whether as full benefits, group bonuses, insurance other annuities payments, the shall or insurance carrier re- payment only ceive credit for each such extent compensation during of payable the that would have been period payment.” the covered In the instant foregoing case inap- insists that the section is plicable recovery party because the a third from not partial salary, group benefits, “. . . insurance bonuses. agree provision relating . . .” that the We to such items salary may recovery or bonuses not include a from a third-party provision independent but the an tort-feasor provision and proscription does not limit the initial that employer is not to credit entitled for other compensation payments. than City Commission, In of v. Evanston Industrial 367 Ill 155, 644, decided before enactment of the foregoing section, payment the court held that received (relief from payments) collateral sources could not be against charged obligation or deducted from City Compensation In benefits. Ken nedy-Van Mfg. Engineering Corp. Saun & v. Industrial Commission, 519, 355 Ill 189 NE the court held payment injury that policy under an accidental insurance accepted by employee secured Compensation benefits, lieu Workmen’s of was likewise chargeable against neither or deductible from the com obligation pensation employer. employee’s The recovery third-party from a is not the re ceipt compensation payments and unless deduction of payment statutory pro is authorized other some why prohibition vision see no we reason of this sec- (c 48, (j)2) applicable. See Crane tion 138-8 61,165 Loome, v. 25 Ill NE2d 728. chapter question

There remains the whether in our (b) authorizes the deduction section right 5(b) opinion creates the it does not. Section re reimbursement, with methods, e., special spect provides i. thereto and for two pro intervention, assisting employer in the for lien or right special tection of of reimbursement. Such his operative primarily methods of assistance are are not tort-feasor and if these methods exercised, special provides rem the statute no additional recognizes employer. for edies statute of reimbursement exist or arise when *7 unpaid are due but will come due in the but, notwithstanding fact, employer future such is granted particular unpaid compensa no interest in such addition, tion. In is no indication in the statute there employee, receipt proceeds third-party that of a recovery thereby compensation his waives poorer position The benefits. is in no better or accordingly than other creditor its charged against not be or deducted from its compensation. Loome, Crane Co. v. 61,165 NE2d 728. foregoing judgment For the reasons of the Circuit County Court of Tazewell is affirmed.

Judgment affirmed.

SCHEINEMAN, J., concurs. ALLOY, J., opinion. dissents with J., dissenting. ALLOY, respectfully majority opinion

I must dissent from the in this case. majority

As noted in opinion, 5(b) section Compensation (1967 Stats, Act Ill Rev c (b)) provides third-party that a where tort-feasor damage injury causes employee, to an then from judgment tort-feasor, made settlement with such either with or without suit “from the amount received such . . . paid there shall be to the em ployer the amount of paid paid or to be him to including such . . . paid amounts paid. or to be . . .” It is also noted that the award of us, Commission in the case before it did while finding specifically make a respect $25,000 with to the paid employee by Illinois, the State of customary language contained the that the shall “. . . money, any, credit for have all sums of if hereto paid petitioner fore injury on account of accidental sus August 10,1959.” tained on agree majority

I with opinion policy that a basic Compensation the Workmen’s Act to free awards under such Act from claims of creditors as employee. objective This is a desirable and the cases determining supported this issue have principle. An- objective, other basic however, 5(b) is stated in section referred policy to herein in expressed which a that an protected should be to the extent of third-party made as a result of the negligence of tort-feasor which causes injury employee. objective clearly to an to afford *8 employer an reimbursement out of settlement or payment pursuant judgment as third- party wrongdoer. application There is a thus consistent Compensation of the policy, Workmen’s Act in that the compensation, and, receives his to the extent payment by of third-party wrongdoer, a employer the payment. is reimbursed in the amount of such The net effect is that the receives all compensa- of his policies tion and the Com- pensation Act are in fact carried opinion into effect. The

354 employer if the however, drafted, in effect states as through inter- acted either a lien perfected has not action, placed in the status employee’s he is in the vention general creditor. of a no direct seems to opinion, there in the

As observed us. We before applicable particular issue precedent (b) agreement 5 does not in that section apparently are all reimburse only certain methods employer to the limit Trimon v. Employers Mut. Cas. Co. case of ment. In the 391, in Co., 124, App2d NE2d 217 Mut. Elevator 71 414, Sons, App2d Ryerson 8 Ill Sjoberg Joseph T. & v. Legler, 26 Ill 56, v. and Arnold Lies Co. 132 NE2d majority opin noted in the as from a ion, employer reimbursement the clearly As noted third-party established. case, 136), supra (at page in the Trimon Elevator (b) employer discussing in that the court section states “may action; however, provide join this does not remedy. exclusive rem an exclusive To hold this as an great edy part to a extent on the would very protection minimum cut down to the give (at Again, intended him.” the court act states 130) page the Trimon Elevator case: interpretation

“In an of the statute the court must missing supply from that which the statute in a purpose with manner consistent the overall act and consistent with other cases.” noted, purpose of Act As the overall is first to as- receiving compensa- sure the workmen’s specified pur- tion the Act. Another 5(b) pose expressed in section is to afford the protection possible to obtain reimbursement from the all proceeds received from tort-feasor wheth- language or otherwise. The er settlement of section simply specifies employer “may (b)5 that an have itself upon any award, judgment a lien fund” or claim “may provides that the at time there- also *9 join” nothing third-party after in the action. There is mandatory language in such simply pro- the Act but optional procedural vides for an protection method of employer. language pres- in the Industrial Commission the though general ent case even in nature should not be ignored. language That was not limited to specifically made the but refers “all sums paid petitioner.” . . . A construction reasonable would $25,000 paid be that the the State of Illinois as a language award, the was included in of such and that the should credit receive for such payment. Loome,

It clear that the case of 25 Crane v. Ill opinion, referred to in the does require the conclusion opin in was reached case, ion. In the Crane the court held that properly paid could not deduct which it had amounts pension plan under a from amounts which it owed the Compensa under the Workmen’s (j) tion Act. (1967 a 1960 2 case and 138-8 § This Stats, 48) Rev c now covers that situation. The Crane Co. did case not involve a tort-feasor. An em ployee clearly protected in his award from off setting (1967 Stats, 48) claims under c Ill Rev provision apply but this does not reimbursement under (b). outlined, section On applica the basis a consistent statutory light provision, tion of the of the order Commission, give of the Industrial should effect to or provision der of Commission and its for allowance of adopted, many credit. Unless construction cases, through settlement or otherwise made directly employee, employer’s of reim 5(b) meaningless. bursement under become section would stated, For the reasons the amount received third-party tort-feasor, from the the State of *10 per- be employer, should Illinois, paid to the but employer’s a credit as taken as mitted to be Compen- under the benefits therefore, reversed should, Act. This cause sation court to allow the trial remanded with directions employer pay his requiring subject credit attorney fees. share Buildings Department of Public Works People of Behalf for and in of Illinois

State Virgil Petitioner-Appellee, v. Illinois, the State Defendants-Appellants, R. East- King, King, S. Rosa Defendants-Appellees. wood, al., et No.

Gen. 68-46. Fifth District. August 6,1969.