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                                    Appellate Court                         Date: 2017.05.09
                                                                            13:04:06 -05'00'




        Theis v. Illinois Workers’ Compensation Comm’n, 2017 IL App (1st) 161237WC



Appellate Court         BRITTANY M. THEIS, Appellant, v. THE ILLINOIS WORKERS’
Caption                 COMPENSATION COMMISSION et al. (Steak ’n Shake Operations,
                        Inc., Appellees).



District & No.          First District, Workers’ Compensation Commission Division
                        Docket No. 1-16-1237


Rule 23 order filed     February 17, 2017
Rule 23 order
withdrawn               March 14, 2017
Opinion filed           March 17, 2017



Decision Under          Appeal from the Circuit Court of Cook County, No. 15-L-50631; the
Review                  Hon. Alexander P. White, Judge, presiding.

Judgment                Affirmed.


Counsel on              Edward Czapla, of Paul W. Grauer & Associates, of Schaumburg, for
Appeal                  appellant.

                        Timothy J. O’Gorman, of Keefe, Campbell, Biery & Associates, LLC,
                        of Chicago, for appellee.



Panel                   JUSTICE HARRIS delivered the judgment of the court, with opinion.
                        Presiding Justice Holdridge and Justices Hoffman, Hudson, and
                        Moore concurred in the judgment and opinion.
                                             OPINION

¶1       In May 2014, claimant, Brittany Theis, was awarded benefits under the Workers’
     Compensation Act (Act) (820 ILCS 305/1 to 30 (West 2012)), for an injury to her right arm
     resulting from a March 3, 2013, fall at work. Neither she nor the employer, Steak ‘n Shake
     Operations, Inc., filed a petition for review.
¶2       In October 2014, claimant filed a petition for penalties and fees pursuant to sections 19(l),
     19(k), and 16 of the Act. 820 ILCS 305/19(l), (k), 16 (West 2012). Following a December
     2014 hearing, the Illinois Workers’ Compensation Commission (Commission) awarded
     claimant section 19(l) penalties in the amount of $4920, but it denied claimant’s request for
     section 19(k) penalties and section 16 fees. On judicial review, the circuit court reversed the
     Commission’s award of section 19(l) penalties, but it otherwise confirmed the Commission’s
     decision. Claimant appeals, asserting the Commission’s award of section 19(l) penalties was
     appropriate. We affirm.

¶3                                        I. BACKGROUND
¶4        In April 2013, claimant filed an application for adjustment of claim pursuant to the Act for
     an injury to her right arm resulting from a March 3, 2013, fall at work. An arbitration hearing
     was conducted on April 7, 2014. On May 23, 2014, the arbitrator issued his decision, finding
     that claimant suffered a work accident and awarding her benefits under the Act. Specifically,
     he awarded claimant temporary total disability (TTD) benefits in the amount of $460 (which
     had already been paid by the employer), permanent partial disability (PPD) benefits in the
     amount of $19,481 (88.55 weeks at a rate of $220 or 35% permanent loss of use of her right
     arm), and “all medical expenses contained in [claimant’s] Exhibits 1-9.” Neither party filed a
     petition for review of the arbitrator’s decision.
¶5        On October 3, 2014, claimant filed a petition for penalties and fees pursuant to sections
     19(l), 19(k), and 16 of the Act. She asserted that more than 130 days had passed since the
     arbitration decision was entered and that the employer had yet to pay either award.
¶6        On October 8, 2014, the employer issued claimant a check in the amount of $19,481 for
     payment of the PPD award.
¶7        The record shows an October 16, 2014, email from the employer’s counsel to claimant’s
     counsel which states, “I’ve never received any of your exhibits from trial and I must note I’ve
     asked several times since we tried the case. You allowed me to look through your trial exhibits
     the day of trial however I was never provided a copy.” Counsel for the employer further noted
     its records showed that it had already “paid a significant amount of [claimant’s] medical bills”
     but stated, “[w]ithout your exhibits, we’re unable to calculate the correct amount which was
     awarded at trial. Please send your exhibits to our office as soon as you can so we can calculate
     what is owed and what was paid and we can cut a check.” On December 4, 2014, the employer
     issued a check to claimant in the amount of $55,997.04 for her medical expenses.
¶8        On December 9, 2014, a hearing on claimant’s petition was conducted before the
     Commission. Regarding the award for medical expenses, claimant asserted that her medical
     bills “were submitted at trial in evidence and they were awarded pursuant to the arbitrator’s
     award at that time on May 23, 2014.” Claimant further argued that despite the employer’s
     “notice of those outstanding bills prior to proceeding to the hearing,” it “waited over 196 days


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       to pay the award of medical expenses.” In contrast, the employer argued it did not receive
       copies of claimant’s medical bills until October 27, 2014, after having requested them from
       claimant’s attorney. According to the employer, it was not relevant if copies of the medical
       bills were admitted at trial because the Act requires the medical bills to be tendered to the
       employer for payment. The employer further stated that upon receiving the medical bills from
       claimant, “a fee schedule calculation [was] made and the bills compared to other bills and other
       records we had previously received to make sure that there was no balanced [sic] billing or
       double billing.” Once those tasks were completed, the employer issued claimant a check on
       December 5, 2014.
¶9          Regarding the payment of the PPD award, the employer admitted the payment was late.
       However, it maintained that no request for payment had been made by claimant prior to the
       filing of her petition for penalties and fees, a copy of which the employer received on October
       6, 2014. According to the employer, “that was the first time they were made aware that there
       had been the nonpayment of the award.” The record shows the employer issued claimant a
       check in the amount of the PPD award on October 8, 2014.
¶ 10        On August 3, 2015, the Commission entered its decision. First, it denied claimant’s request
       for section 19(k) penalties and section 16 fees, finding she failed to prove the employer acted in
       an unreasonable or vexatious manner. Specifically, the Commission noted claimant had not (1)
       tendered the medical bills at issue to the employer until October 17, 2014, or (2) requested
       payment of her PPD award prior to filing her petition for penalties and fees. Essentially, it
       found that claimant’s actions—or failure to act—caused the delay in the payment of the
       awards. Nonetheless, the Commission awarded claimant section 19(l) penalties in the amount
       of $4920 ($30 per day from June 23, 2014, through December 3, 2014) due to the employer’s
       failure to “timely pay[ ] the award or amounts otherwise due for medical bills and permanency
       upon the award becoming final and non-appealable.”
¶ 11        The employer appealed the Commission’s award of section 19(l) penalties. On April 12,
       2016, the circuit court of Cook County reversed the Commission’s award of section 19(l)
       penalties, finding that the employer’s delay in paying the awards was justified. It otherwise
       confirmed the Commission’s denial of section 19(k) penalties and section 16 fees.
¶ 12        This appeal followed.

¶ 13                                        II. ANALYSIS
¶ 14       On appeal, claimant challenges the circuit court’s reversal of the Commission’s award of
       section 19(l) penalties. Specifically, claimant asserts the record shows the employer
       unreasonably delayed payment of permanency benefits and medical expenses.

¶ 15                                    A. Standard of Review
¶ 16       We review the decision of the Commission rather than the circuit court’s judgment as the
       Commission is the ultimate decision maker in workers’ compensation cases. Dodaro v. Illinois
       Workers’ Compensation Comm’n, 403 Ill. App. 3d 538, 543, 950 N.E.2d 256, 260
       (2010); Roberson v. Industrial Comm’n, 225 Ill. 2d 159, 173, 866 N.E.2d 191, 199 (2007). We
       will not disturb the Commission’s decision unless its analysis is contrary to law or its fact
       determinations are against the manifest weight of the evidence. Roberson, 225 Ill. 2d at 173,
       866 N.E.2d at 199. “Fact determinations are against the manifest weight of the evidence only


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       when no rational trier of fact could have agreed with the agency.” Id. at 173-74, 866 N.E.2d at
       199.

¶ 17                                      B. Section 19(l) Penalties
¶ 18       Section 19(l) of the Act provides as follows:
               “If the employee has made a written demand for payment of benefits under Section 8(a)
               or Section 8(b), the employer shall have 14 days after receipt of the demand to set forth
               in writing the reason for the delay. In the case of demand for payment of medical
               benefits under Section 8(a), the time for the employer to respond shall not commence
               until the expiration of the allotted 30 days specified under Section 8.2(d). In case the
               employer or his or her insurance carrier shall without good and just cause fail, neglect,
               refuse, or unreasonably delay the payment of benefits under Section 8(a) or Section
               8(b), the Arbitrator or the Commission shall allow to the employee additional
               compensation in the sum of $30 per day for each day that the benefits under Section
               8(a) or Section 8(b) have been so withheld or refused, not to exceed $10,000. A delay
               in payment of 14 days or more shall create a rebuttable presumption of unreasonable
               delay.” 820 ILCS 305/19(l) (West 2012).
¶ 19       “Penalties under section 19(l) are in the nature of a late fee” and are “mandatory ‘[i]f the
       payment is late, for whatever reason, and the employer or its carrier cannot show an adequate
       justification for the delay.’ ” Jacobo v. Illinois Workers’ Compensation Comm’n, 2011 IL App
       (3d) 100807WC, ¶ 19, 959 N.E.2d 772 (quoting McMahan v. Industrial Comm’n, 183 Ill. 2d
       499, 515, 702 N.E.2d 545, 552 (1998)). “The standard for determining whether an employer
       has good and just cause for a delay in payment is defined in terms of reasonableness.” Id.
       When benefits are withheld for 14 days or more, a rebuttable presumption of unreasonable
       delay exists. 820 ILCS 305/19(l) (West 2012). “The employer has the burden of justifying the
       delay, and the employer’s justification for the delay is sufficient only if a reasonable person in
       the employer’s position would have believed that the delay was justified.” Jacobo, 2011 IL
       App (3d) 100807WC, ¶ 19, 959 N.E.2d 772. “The Commission’s evaluation of the
       reasonableness of the employer’s delay is a question of fact that will not be disturbed unless it
       is contrary to the manifest weight of the evidence.” Id.
¶ 20       Initially, we note, as did the circuit court, that section 19(l) penalties are not applicable to
       PPD awards. Rather, section 19(l) penalties apply to the delayed payment of medical expenses
       (section 8(a)) and TTD benefits (section 8(b)). See 820 ILCS 305/19(l) (West 2012). The
       record shows that the total TTD award was paid by the employer prior to the arbitrator’s
       decision in this case (the employer was credited $502.86 for TTD) and is not at issue. Thus,
       section 19(l) penalties are appropriate only if the employer failed to show an adequate
       justification for its delay in paying claimant’s medical expenses.
¶ 21       Here, the employer asserts, as it did below, that its delay in paying claimant’s medical bills
       was due to the fact that claimant did not tender the medical bills until October 27, 2014.
       According to the employer, once it had access to the bills, it calculated the amounts due
       pursuant to the fee schedule and issued a check to claimant for payment of all medical
       expenses on December 5, 2014.
¶ 22       In contrast, claimant argues that her “written demand for payment of the medical expenses
       [as required by section 19(l) of the Act] was contained in the Request for Hearing form
       submitted by the parties at the beginning of the [a]rbitration hearing” and that the medical

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       expenses claimed at arbitration were admitted into evidence. According to claimant, she “had
       no duty to tender the medical bills admitted into evidence to [the employer] following the
       [a]rbitration hearing.” Rather, she contends the employer could have accessed her medical
       records by subpoenaing them directly from the medical providers, ordering them from the
       Record Copy Service identified on the subpoena for medical bills, or ordering a copy of the
       transcript of the proceedings and accompanying exhibits.
¶ 23       We note that claimant cites no authority, nor does our research reveal any, to support the
       proposition that a written demand for payment of medical expenses contained within a request
       for hearing form submitted in advance of an arbitration hearing constitutes a sufficient written
       request for payment following an award of medical expenses under section 19(l) of the Act.
       However, even if we were to find that claimant submitted a sufficient written request for the
       payment of her award of medical expenses under section 19(l) of the Act, we would still find
       the Commission’s award of penalties was against the manifest weight of the evidence. The act
       of submitting medical bills into evidence during arbitration is not the same as tendering them to
       the employer for payment. In addition, claimant cites no authority, nor does our research reveal
       any, which stands for the proposition that an employer has a duty to actively seek out a
       claimant’s medical bills either through the use of a subpoena or some other method in order to
       comply with the requirements of section 19(l). Although the Commission found that it was
       claimant’s failure to tender the medical bills to the employer that caused the delay in the
       payment of the award, it nonetheless awarded claimant section 19(l) penalties due to the
       employer’s failure to timely pay the award, which was error. Here, the employer provided
       adequate justification for its delay in paying claimant’s award of medical expenses.
       Accordingly, the Commission’s award of section 19(l) penalties was against the manifest
       weight of the evidence.

¶ 24                                       III. CONCLUSION
¶ 25       For the reasons stated, we affirm the circuit court’s judgment reversing the portion of the
       Commission’s decision which awarded section 19(l) penalties and confirming the denial of
       section 19(k) penalties and section 16 fees.

¶ 26      Affirmed.




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