dissenting:
The provisions of section 19(k), section 19(l), and section 16 of the Workers’ Compensation Act (Ill. Rev. Stat. 1981, ch. 48, pars. 138.19(k), 138.19(l), 138.16) appear to be overlapping and confusing, and are in need of clarification by the General Assembly. Although section 19(l) relates solely to penalties for failure to pay compensation benefits during temporary total disability, I note that in section 19(k) there is also included as a basis for penalties failure to pay compensation in accordance with the provisions of section 8(b) (Ill. Rev. Stat. 1981, ch. 48, par. 138.8(b)). Section 8(b) provides for the payment of compensation during temporary total incapacity. In the case before us it appears the penalties under both section 19(k) and section 19(l) were assessed for the same alleged default of the board of education, failure to pay compensation for temporary total disability between January 23, 1979 and June 12, 1979.
It may be that the Industrial Commission has devised a rule of thumb as a guide in determining when penalties may be assessed under section 19(k), and when they may be assessed under section 19(l). Such a rule would have to be purely an arbitratory creation of the Industrial Commission because the proper applicability of the sections is not readily apparent.
The basis for my dissent, however, is not this apparent overlapping of penalties. I dissent because the assessment of penalties in this case is contrary to the manifest weight of the evidence. It is well established that an employer who delays payment bears the burden of excusing the delay. (City of Chicago v. Industrial Com. (1976), 63 Ill. 2d 99.) However, this rule must not be applied so rigidly that an employer may seek review of an award against him only at his peril. Also, the mere fact that an employer does not prevail, or only partially prevails, as in this case, does not conclusively establish that he has not shown that the delay was justified.
The majority opinion notes that the board sought review before the Industrial Commission of the arbitrator’s award of S22h weeks of temporary total disability compensation and 20% loss of bodily function. The majority holds, however, that the fact that the board prevailed on review by securing a reduction of the percentage of permanent partial disability did not excuse it from making the temporary total disability payments, nor did it indicate good faith in challenging the temporary total disability award. The majority cites no cases wherein an employer has been penalized in this manner. To the contrary, this court has stated:
“The dispute over the form of the payments in the instant case was legitimate. Although it involved only a portion of the award, the respondent was entitled to withhold payments under these facts until this issue was resolved.” (Mid-American Lines, Inc. v. Industrial Com. (1980), 82 Ill. 2d 47, 62.)
In Mid-American Lines, Inc. and City of Chicago v. Industrial Com. (1976), 63 Ill. 2d 99, it was conceded that a part of an award was payable and the entire amount was withheld until the disputed amount was resolved. This court held that an award of penalties under such facts was contrary to the manifest weight of the evidence.
The facts in the instant case more clearly favor the employer than they did in the two cases last cited. Here, the acknowledged amount of temporary total disability payments due to the employee (14s/7 weeks) had been paid to the employee. Only the difference between that amount and the 32% weeks awarded by the arbitrator was withheld. On review before the Industrial Commission, both this difference in temporary total disability award, and the 20% permanent disability award were contested. That the board’s contesting of the award of temporary total disability was not frivolous is shown by several bits of evidence in the record. As the majority opinion notes, following the employee’s injury, he was taken to Holy Cross Hospital, where his condition was diagnosed as a right sacroiliac joint sprain, and possible ruptured disc. Before the hearing in arbitration nothing further was shown to indicate that his injury was other than a sprain. Following his injury, the employee visited his family physician about every two weeks, who treated him for pain and later referred him to Dr. Arthur Rodriguez about April 12, 1977. Dr. Rodriguez’ report before the arbitrator revealed that the employee had told him on May 17, 1977, “that he felt better but that the pain had not completely gone,” and that he had not returned to work because he was afraid the pain would recur. That date, May 17, 1977, roughly corresponds to 143/y weeks after the accident on January 26, 1977, the period of time for which the board had made temporary total disability payments. On October 24, 1977, the employee was examined by Dr. Leo E Miller, who reported that the X rays were essentially negative, and in his opinion, based on the objective findings, the subjective complaints were not substantiated. This evidence clearly shows the board’s appeal of the arbitration award for temporary total disability was not frivolous.
The award of penalties, however, was not based on the failure to pay the temporary total disability awarded by the arbitrator. The penalties were awarded solely for the nonpayment of temporary total disability from January 23, 1979, to June 12, 1979. It should be remembered that the employee had returned to work on September 12, 1977. He was working full time when the arbitrator entered its award on May 22, 1979. He was also working full time when the first hearing on review before the Industrial Commission was held on November 14, 1978. He continued to work full time until January 22, 1979, when he ostensibly left work for vacation. Thus, he had worked steadily since September 12, 1979, a year and four months, missing only 20 days intermittently in that period, and these days he had taken off not on the advice of a doctor, but of his own accord.
This court has held that penalties under section 19(k) and section 19(Z) may be awarded only when there has been an award in favor of the claimant and the responsible party has unreasonably delayed paying. (Brinkmann v. Industrial Com. (1980), 82 Ill. 2d 462; McKay Plating Co. v. Industrial Com. (1982), 91 Ill. 2d 198.) There was never an award that temporary total disability payments be made to the employee in this case for the period from January 23 through June 1, 1979, until the award by the Industrial Commission, which also assessed penalties. True, McKay Plating Co. stated that there need only be an award, not that it be in the amount the Commission ultimately finds due. However, here the award by the arbitrator was for a period from January to September 1977. The penalty was assessed for failure to pay temporary total disability compensation from January to June, 1979. Between these two periods, the employee had worked regularly for a year and four months, with only intermittent absences. The failure by the board to pay under these circumstances does not demonstrate bad faith or show an unreasonable or vexatious delay. Failure to pay temporary total disability compensation for a period of time immediately following a period for which an award had been made as in McKay Plating Co. is an entirely different case from that which we have before us.
The holding of the majority seems to be contrary to the holding of this court in Chicago Transit Authority v. Industrial Com. (1981), 86 Ill. 2d 101. In that case the employee was injured in January 1977. She filed an application for adjustment of claim in September 1977. The next month she was discharged for absenteeism. In December 1977 the arbitrator made an award for temporary total disability and also an award for 15% loss of use of her left leg. The award was fully paid by the employer in January 1978. In May 1978 a petition was filed on behalf of the employee under section 19(h) of the Act, which provides for review of an award if the employee’s disability has recurred, increased, diminished, or ended. The Industrial Commission found that the award for permanent partial disability should be increased and that the employee was also entitled to additional temporary total disability compensation. The Commission also assessed penalties against the employer under sections 16, 19(k) and 19(l) of the Act, based on the employer’s not having paid temporary disability compensation for the additional period of disability. This court held that the assessment of penalties by the Industrial Commission was against the manifest weight of the evidence. In that case there had been a demand by the employee for temporary total disability payments for the subsequent period of disability and there had been a notification to the employer that the employee had undergone surgery on her knee and that it was claimed to have resulted from her previous injury. However, in that case this court did not place the burden on the employer to seek out and ascertain the cause of the disability, as the majority has done in the case now before us, which I shall discuss later. Instead, in Chicago Transit Authority v. Industrial Com. we placed the burden on the employee to provide the employer with information from which it could ascertain if compensation was payable.
Contrary to the holding in the case just discussed, the majority opinion in this case places the burden of searching for possible temporary total disability claims on the board of education. In this case there had been no clear demand for payment, nor had there been notice given to the board of education that it was claimed that the subsequent disability was attributable to the prior injury. The majority opinion finds only that there were facts which should have alerted the board of education to the possibility that the subsequent disability was attributable to the prior injury.
The net effect of some of the language used in the majority opinion can only be to produce a substantial amount of litigation in the future. Language to the effect that the employee’s prior injury, considered with his sporadic absences, “should have alerted the board to the possibility that his condition had not stabilized” and “if the Board had any real doubts as to whether this new absence was related to the 1977 injury, it should have tried to clarify these doubts” will lead to countless claims for penalties in cases in which the employer attempts to contest the right of the employee to temporary total disability compensation.
I would hold the assessment of penalties in this case contrary to the manifest weight of the evidence, and I must, therefore, dissent.
UNDERWOOD and MORAN, JJ., join in this dissent.