dissenting.
I must respectfully dissent from the majority opinion in this case.
As noted in the majority opinion, section 5(b) of the Workmen’s Compensation Act (1967 Ill Rev Stats, c 48, § 138-5 (b)) provides that where a third-party tort-feasor causes damage and injury to an employee, then from the judgment or settlement made with such tort-feasor, either with or without suit “from the amount received by such employee . . . there shall be paid to the employer the amount of compensation paid or to be paid by him to such employee . . . including amounts paid or to be paid. . . .” It is also noted that the award of the Commission in the case before us, while it did not make a finding specifically with respect to the $25,000 which was paid to the employee by the State of Illinois, contained the customary language that the employer shall “. . . have credit for all sums of money, if any, heretofore paid petitioner on account of accidental injury sustained on August 10,1959.”
I agree with the majority opinion that a basic policy of the Workmen’s Compensation Act is to free awards under such Act from claims of creditors as against the employee. This is a desirable objective and the cases determining this issue have supported that principle. Another basic objective, however, is stated in section 5(b) referred to herein in which a policy is expressed that an employer should be protected to the extent of payments made by a third-party tort-feasor as a result of the negligence of such third-party tort-feasor which causes injury to an employee. The objective is clearly to afford an employer reimbursement out of any settlement or payment pursuant to judgment as against such third-party wrongdoer. There is thus a consistent application of the Workmen’s Compensation Act policy, in that the employee receives his compensation, and, to the extent of payment by a third-party wrongdoer, the employer is reimbursed in the amount of such payment. The net effect is that the employee receives all of his compensation payments and the policies of the Workmen’s Compensation Act are in fact carried into effect. The opinion as drafted, however, in effect states that if the employer has not perfected either a lien or acted through intervention in the employee’s action, he is placed in the status of a general creditor.
As observed in the opinion, there seems to be no direct precedent applicable to the particular issue before us. We are apparently all in agreement that section 5 (b) does not limit the employer to only certain methods of reimbursement. In the case of Employers Mut. Cas. Co. v. Trimon Mut. Elevator Co., 71 Ill App2d 124, 217 NE2d 391, and in Sjoberg v. Joseph T. Ryerson & Sons, 8 Ill App2d 414, 132 NE2d 56, and Arnold Lies Co. v. Legler, 26 Ill App2d 365, 167 NE2d 813, as noted in the majority opinion, the right of the employer to reimbursement from a third-party tort-feasor is clearly established. As noted in the Trimon Elevator case, supra (at page 136), the court states in discussing section 5 (b) that the employer “may join in the action; however, this does not provide an exclusive remedy. To hold this as an exclusive remedy on the part of the employer would to a great extent cut down to the very minimum a protection which the act intended to give him.” Again, the court states (at page 130) in the Trimon Elevator case:
“In an interpretation of the statute the court must supply that which is missing from the statute in a manner consistent with the overall purpose of the act and consistent with other cases.”
As noted, the overall purpose of the Act is first to assure the employee of receiving the workmen’s compensation payments as specified by the Act. Another purpose expressed in section 5(b) is to afford the employer all possible protection to obtain reimbursement from the proceeds received from the third-party tort-feasor whether by settlement or otherwise. The language of section 5 (b) itself simply specifies that an employer “may have or claim a lien upon any award, judgment or fund” and also provides that the employer “may at any time thereafter join” in the third-party action. There is nothing mandatory in such language but the Act simply provides for an optional procedural method of protection of the employer.
The language of the Industrial Commission in the present case even though general in nature should not be ignored. That language was not limited to payments made by the employer but refers specifically to “all sums . . . paid petitioner.” A reasonable construction would be that the $25,000 paid by the State of Illinois as a tort-feasor was included in the language of such award, and that the employer should receive credit for such payment.
It is clear that the case of Crane v. Loome, 25 Ill App2d 61, 165 NE2d 728, referred to in the opinion, does not require the conclusion which was reached in the opinion. In the Crane case, the court held that the employer could not properly deduct amounts which it had paid the employee under a pension plan from amounts which it owed the employee under the Workmen’s Compensation Act. This was a 1960 case and § 138-8 (j) 2 (1967 Ill Rev Stats, c 48) now covers that situation. The Crane Co. case did not involve a third-party tort-feasor. An employee is clearly protected in his award from offsetting claims under § 138-21 (1967 Ill Rev Stats, c 48) but this provision does not apply to reimbursement under section 5 (b). On the basis outlined, a consistent application of the statutory provision, in the light of the order of the Industrial Commission, should give effect to the order of the Commission and its provision for allowance of credit. Unless this construction is adopted, in many cases, through settlement or payments otherwise made directly to the employee, the employer’s right of reimbursement under section 5(b) would become meaningless.
For the reasons stated, the amount received by the employee from the third-party tort-feasor, the State of Illinois, but not paid to the employer, should be permitted to be taken as a credit as against the employer’s obligation to pay benefits under the Workmen’s Compensation Act. This cause should, therefore, be reversed and remanded with directions to the trial court to allow such credit subject to requiring that employer pay his share of the attorney fees.