
                                        Industrial Commission Division
                                        Filed: 01/24/02





                                           No. 1-00-3895WC



                                  IN THE APPELLATE COURT OF ILLINOIS
                                       FIRST JUDICIAL DISTRICT
                                    INDUSTRIAL COMMISSION DIVISION



STEVEN BUNNOW,                          )    Appeal from the
                                             )     Circuit Court of
            Appellant,                       )     Cook County
                                             )
                                             )     Nos.  98 L 51168
                 v.                          )           99 L 50510
                                             )           99 L 50558
                                             )
THE INDUSTRIAL COMMISSION et al.,            )
(Chicago Suburban Express,                         )     Honorable
                                             )     Joanne Lanigan,
            Appellee).                       )     Judge Presiding.



      JUSTICE HOFFMAN delivered the opinion of the court:

      The 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' 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  under-payment  of  TTD  benefits.
The circuit court of Cook County confirmed the Commission’s decision.   The  claimant  has  appealed,
arguing that he is also entitled to an award of attorney fees and penalties for  the  non-payment  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's decision, and remand the  case  to  the  Commission  with
directions.
      On 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's 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.
      On 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 under-payment of  TTD  benefits
and the non-payment of medical bills.
      On January 23, 1998, an arbitrator conducted a  hearing  at  which  evidence  establishing  the
following facts was introduced.
      In 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  "the  papers"  for  the
load he would be hauling from Jennifer  Moegenburg,  Champion's  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  "warehouse  transfer  point."   When  the
claimant arrived at Suburban, he would back his truck up to the warehouse  or  docking  area,  unhook
the trailer, and  give  his  papers  to  Suburban's  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.
      The 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's  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’s understanding that Suburban had the authority to  fire  him  if  he  were
driving recklessly, arrived at its facility intoxicated, or "was crummy" at his  job.   The  claimant
further testified that the  manifest  and  bills  of  lading  for  the  loads  he  carried  contained
Suburban's name.
      According 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's 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.
      The 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.
      Champion's 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's 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.
      The 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:
      "Representations 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."
The lease also provided that "this 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".   Section
1360.40 b of Title 92 of the Illinois Administrative Code provides that:
      "The 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."  92 Ill. Adm. Code §1360.40 b (amended October
      12, 1993).
Both Moegenburg and Douglas Stephan, Suburban's 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's only intention in entering into the  lease  was  to  allow  Champion  to  operate  in
Illinois pursuant to Suburban's ICC authority.
      Moegenburg testified that Champion had Suburban's 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' routes, and maintaining its tractors.  Champion also performs all  employee  evaluations
and determines the amount of raises.
      Stephan 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's 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's 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's  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.
      Following 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 "CHAMPION TRUCKING and CHICAGO SUBURBAN EXPRESS, and  each  of  them  shall  pay"  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(l) 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 non-payment of TTD benefits only, not medical expenses.
      Champion and Suburban both filed petitions for review of the arbitrator's  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's  employer.   The  claimant  did  not  file  a  petition  for  review  of  the
arbitrator's 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  non-payment
of medical expenses in his statement of exceptions.
      On 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'n,  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's fees pursuant to section 16 of the Act can be awarded based on the non-payment  of
medical expenses.  The McMahan decision constituted a departure  from  the  supreme  court’s  earlier
holding to the contrary on this same issue in Childress v. Industrial Comm’n, 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.
      On 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's 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's  decision
contains no discussion of the issue of penalties for the non-payment of medical expenses.
      On December 23, 1998, the claimant filed an amended motion for reconsideration on the issue  of
penalties and a motion to recall the Commission's decision pursuant to section 19(f) of the Act  (820
ILCS 305/19(f)(West 1996)).  These motions are not contained in the record.
      On 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's motion for reconsideration  on  the
issue of penalties and his motion to recall the Commission's 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.
      On January 26, 1999, Commissioner Michael Weaver conducted a hearing on the  parties'  motions,
a transcript of which hearing is contained in the  record.   On  May  7,  1999,  Commissioner  Weaver
issued an order granting Suburban's motion to quash and denying the claimant's motions to  reconsider
and his motion to recall the  Commission's  decision  pursuant  to  section  19(f).   In  his  order,
Commissioner Weaver found that the Commission's December 10, 1998, order "does not contain  an  error
on the computation of penalties"  and  that  "the  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."   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.
      Before the circuit court,  Suburban  argued  that  the  Commission's  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's decision denying penalties  based  on  the  non-
payment of medical expenses is against the manifest  weight  of  the  evidence.   The  circuit  court
initially found that the claimant's petition to recall the Commission's 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's 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's
contentions pursuant thereto.  Ultimately, the circuit court rejected the arguments of  both  parties
and confirmed the Commission's December 10, 1998, decision.  The claimant filed  the  instant  timely
appeal.
      The claimant first argues that Commissioner Weaver erred in finding that his motion  to  recall
the Commission's 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.
      Pursuant 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's  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 "any clerical error or errors in computation" within 15  days
of the receipt of the decision.  820 ILCS 305/19(f) (West 1996).
      The question presented here is whether the claimant's motion to  recall  was  properly  brought
pursuant to section 19(f).
      The 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's
decision contained a computational error, arguing that  the  Commission  did  not  simply  forget  to
include the amount of medical expenses due to the claimant when it computed section  19(f)  penalties
but that the Commission never intended to award penalties for the non-payment  of  medical  expenses.
As such, it contends, the claimant's motion to recall the  Commission's  decision  was  nothing  more
than a motion for reconsideration of the Commission's denial of  penalties  for  the  non-payment  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'n, 79 Ill. 2d  45,  56,  402  N.E.2d  584  (1980);  Christman  v.
Industrial Comm'n, 132 Ill. App. 3d 891, 893, 478 N.E.2d 498 (1985).
      The word computation is defined not only as the "the act or action of computing"  but  also  as
"a way or system of reckoning".  Webster's Third New International Dictionary  468  (1993).   In  our
opinion, by this definition, the term "computational error" 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).
      Section 19(k)  of  the  Act  provides  that,  where  appropriate,  the  Commission  "may  award
compensation additional to that otherwise payable under this Act equal to 50% of the  amount  payable
at the time of such award."  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.
      In Childress, our supreme court held that the term compensation, 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 compensation, 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  after  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'n, 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's order confirming  the  Commission's  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  "on  remand  the  calculation  of
penalties, if any, should be guided by our recent decision in McMahan v. Industrial Comm'n, 183  Ill.
2d 499 (1998), which overruled in part Childress v.  Industrial  Comm'n,  93  Ill.  2d  144  (1982)."
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.
      Suburban, 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 non-payment  of  medical  expenses.   It  asserts  that,  unlike  the
employer in McMahan, its refusal to pay the claimant's 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 non-payment of medical expenses.
      It 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  v.
Industrial Comm'n, 93 Ill. 2d 1, 9-10, 442 N.E.2d 861 (1982);  Complete  Vending  Services,  Inc.  v.
Industrial Comm'n, 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'n, 276 Ill. App. 3d 576, 579,  658
N.E.2d 838 (1995); Continental Distributing Co. v. Industrial Comm'n, 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  under-payment  of  TTD  benefits,  the
Commission implicitly found that  Suburban's  refusal  to  pay  such  benefits  was  unreasonable  or
vexatious.  See 820 ILCS 305/19(k) (West 1996);  820  ILCS  305/16  (West  1996).   The  trial  court
confirmed the Commission's decision, and Suburban has not appealed.   Suburban  has  never  contested
the reasonableness of the claimant's 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  liable  to
pay the claimant TTD benefits, it was also liable to pay  all  of  the  medical  expenses  at  issue.
Accordingly, if Suburban's failure to  pay  TTD  benefits  was  unreasonable  or  vexatious,  as  the
Commission implicitly found, so too was its failure to pay the claimant's medical expenses.
      As 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's
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,  it's  December
10, 1998, decision contained a computational error.  As such, the claimant's  motion  to  recall  was
properly brought pursuant to section 19(f), and  the  Commission  erred  in  denying  the  claimant's
motion to recall its decision to correct the computational error.
      For the reasons stated  above,  we  find  that  the  circuit  court  erred  in  confirming  the
Commission's decision in its entirety.  As such, we: 1) vacate the circuit court's  order  confirming
the Commission's decision in its entirety; 2) confirm the Commission's decision only with respect  to
the award of TTD benefits and medical expenses and to the award of  section  19(l)  penalties,  which
are not in dispute; 3) set aside the portion of  the  Commission's  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.
      Circuit court order vacated; Commission's decision confirmed in part and  set  aside  in  part;
cause remanded to the Commission with directions.
      McCULLOUGH, P.J., and O'MALLEY, HOLDRIDGE, and RARICK, JJ., concur.
