Reed v. Ill. Workers' Comp. Comm'n, TH Ryan Cartage Co., No. 1-16-3111

CourtUnited States Appellate Court of Illinois
Writing for the CourtJUSTICE McBRIDE delivered the judgment of the court.
Citation2017 IL App (1st) 163111 -U
Docket NumberNo. 1-16-3111
Decision Date24 August 2017

2017 IL App (1st) 163111-U

MARK P. REED, Plaintiff-Appellee,

No. 1-16-3111


August 24, 2017

NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).

Appeal from the Circuit Court of Cook County


Honorable James M. McGing, Judge Presiding

JUSTICE McBRIDE delivered the judgment of the court.
Presiding Justice Ellis and Justice Howse concurred in the judgment.


Held: Employer waived almost all arguments on appeal by failing to first bring them in the trial court, and it was not an abuse of discretion to require employer to pay employee's attorney fees where employer never had a good faith dispute that its full payment was due on an award granted by the Illinois Workers' Compensation Commission.

¶ 1 Defendant TH Ryan Cartage Company/L&D Drivers Services, Inc. (TH Ryan), of Maywood, Illinois, appeals from an order resolving crossmotions for summary judgment in favor of its injured employee Mark P. Reed in a proceeding pursuant to section 19(g) of the Illinois Workers' Compensation Act to reduce to judgment a worker's compensation award for medical

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services. 820 ILCS 305/19(g) (West 2014) (Act).1 The circuit court's judgment includes $103,995 awarded by the Illinois Workers' Compensation Commission, $31,198.50 for Reed's attorney fees, $420.88 in circuit court costs, and 9% statutory post-judgment interest which has been accruing since the Commission's award in 2012. TH Ryan contends it does not need to pay the Commission's award unless TH Ryan's group health insurer sues Reed for reimbursement of the surgical expenses the Commission awarded as work-related and reasonable and necessary. We note that although the group health insurer is not a party, it is allied with Reed and that his attorney filed an affidavit during the circuit court proceedings indicating he represents their joint interests and will be compensated by the group health insurer. TH Ryan's second contention is that its tender of an $80,000 settlement check, which Reed and the group health insurer did not request and returned uncashed, legally and fully satisfied the Commission's $103,995 award. TH Ryan asks to vacate the money judgment and enter summary judgment in its favor because it owes nothing, or, in the alternative, to rule that the rejected check at least partially satisfied the Commission's award, leaving only $23,995 due upon which the the trial court must recalculate the attorney fees and interest.

¶ 2 Reed was 40 years of age and employed as a semi-truck driver on August 12, 2004 when his tractor-trailer combination "jack knifed" at approximately 60 miles an hour and caused him to suffer head and lower back injuries for which he received four surgeries, pain management therapy, and other medical treatment. TH Ryan paid Reed some benefits through the workers'

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compensation system for his medical services and temporary total disability, but disputed the necessity of his second back surgery and related care at Gottlieb Memorial Hospital in November 2006 at a cost of $103,995, and his emergency treatment at Illinois Masonic Medical Center in July 2009 for $9637. Reed's group health insurer, Blue Cross Blue Shield of Illinois, paid for the Gottlieb surgery but not the Illinois Masonic emergency treatment and asserted a right to reimbursement. TH Ryan does not dispute that the group health insurer is entitled to reimbursement from TH Ryan for paid medical expenses that are found to arise from a work-related injury and admits this in its opening brief and elsewhere as discussed below.

¶ 3 After a hearing in November 2011, an arbitrator determined that Reed's average weekly wage had been undercalculated due to the omission of "overtime" hours that were part of Reed's normal work day, that both the Gottlieb surgery and the Illinois Masonic emergency treatment were work-related and reasonable and necessary, and that Reed was entitled to prospective medical care in order to reach "maximum medical improvement." The arbitrator specified: "The respondent [TH Ryan] shall pay $113,632.00 for medical services, as provided in Section 8(a) of the Act. Respondent [TH Ryan] is entitled to a credit of $103,995.00 under Section 8(j) of the Act. Respondent [TH Ryan] shall hold Petitioner [Reed] safe and harmless for all claims that may be made against him by reason of having received such payment only to the extent of such credit." 820 ILCS 305/19(a)-(e) (West 2010) (providing for arbitration); 820 ILCS 305/8(a), (j) (West 2010) (providing for the calculation and payment of compensation). Thus, the amount awarded included the Gottlieb and Illinois Masonic care ($103,995 + $9637), the section 8(j) credit was for Blue Cross Blue Shield's payment of the Gottlieb expenses ($103,995), and no section 8(j) credit was awarded for the Illinois Masonic expenses ($9637) which appeared to be

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unpaid. On October 15, 2012, the Commission unanimously affirmed and adopted the arbitrator's decision.

¶ 4 TH Ryan sought judicial review of some aspects of the decision, specifically whether the overtime hours were part of Reed's normal workday and whether TH Ryan was entitled to a $9637 credit pursuant to section 8(j) of the Act for the Illinois Masonic bill even though it appeared to be unpaid. TH Ryan, however, did not dispute the necessity of Reed's surgery at Gottlieb or the related $103,995 credit pursuant to section 8(j) of the Act. Accordingly, Reed demanded immediate payment in full of the $103,995.2 Instead, TH Ryan's workers' compensation insurance carrier, Liberty Mutual Insurance Company, issued an $80,000 check on December 31, 2012 payable to Reed and Blue Cross Blue Shield and wrote "NOTE: SETTLEMENT-MED" on its attached transmittal form. Reed and Blue Cross Blue Shield were not willing to settle his medical expenses award. Counsel representing Reed and Blue Cross Blue Shield returned the check and again continued to demand full payment of the Commission's $103,995 award, stating:

"Upon receipt of this draft I contacted Blue Cross Blue Shield and advised them as to your attempted tender of only $80,000 of their lien amount. They have rejected your tender and still demand the full amount of their lien. (See Exhibit 1.)

In addition, Mr. Reed incurred costs and attorneys fees in the within litigation and which both Mr. Reed and Blue Cross have agreed are due this firm, not to mention the costs and attorneys fees related to the 19(g) proceedings.

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I am therefore returning the draft in the amount of $80,000 since the tender of amounts less than the full amount owing is not a proper tender of payment. If you would like to re-issue a draft in the full amount of the Blue Cross lien that would be acceptable, however, we naturally will continue with our efforts to collect[] the penalties and costs due to your dilatory and unreasonable 'too little too late' efforts to pay this award of compensation."

¶ 5 The record on appeal does not include the document that was marked "Exhibit 1" and attached to counsel's letter, but it is not disputed that on this and other occasions, Blue Cross Blue Shield demanded full payment of the Commission's $103,995 award. For instance, on May 14, 2013, Suzanne Lolling, who was employed by Blue Cross Blue Shield as a corporate reimbursement/subrogation service representative sent Reed an "Update regarding [the] payment amount [due from him]." Lolling attached a "Consolidated Statement of Benefits" and again demanded Reed's full payment of the Commission's award with the addition of what appears to be interest, for a total of $104,164. The attached statement of benefits specified that it concerned Blue Cross Blue Shield's payments for medical care necessitated by Reed's work-related injury in 2004, it itemized the dates of Reed's medical care in November and December 2006, named the providers of his medical services (primarily Gottlieb Memorial, but also Apria Healthcare, Inc., and EBI LP), and stated the billed and paid amounts of group health insurance benefits. Lolling asked that Reed's attorney use an enclosed remittance form and "please call to verify the [updated] amount of our stated interest" before tendering Reed's payment to Blue Cross Blue Shield.

¶ 6 In 2014 and 2015 respectively, the circuit court and the appellate court affirmed the Commission's decision despite the employer's arguments regarding Reed's overtime hours and

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its request for a section 8(j) credit for the $9637 Illinois Masonic bill for which TH Ryan had no evidence of payment by Blue Cross Blue Shield. See TH Ryan Cartage Co. v. Illinois Workers' Compensation Comm'n, 2015 IL App (1st) 143209WC-U.

¶ 7 When payment was still not forthcoming, Reed commenced this suit in early 2016.

¶ 8 When an employer fails or refuses to pay a final award, section 19(g) of the Act provides a speedy, statutory remedy for an employee-claimant to reduce the award to an enforceable judgment in the circuit court. Franklin v. Wellco Co., 5 Ill. App. 3d 731, 734, 283 N.E.2d 913, 915 (1972) (the purpose of section 19(g) is to permit speedy judgment in cases where there has been a refusal to pay the award and a need to reduce the award to judgment to compel its payment); Blacke v. Industrial Comm'n, 268 Ill. App. 3d 26, 28, 644 N.E.2d 23, 24 (1994) (same); Evans v. Corporate Services, 207 Ill. App. 3d 297, 302, 565 N.E.2d 724, 728 (1990) (same); 820 ILCS 305/19(g) (West 2012). Monetary court judgments are valuable because the judgment creditor may issue garnishment proceedings and attach the debtor's assets to collect the judgment. See 735 ILCS 5/12-701 et seq. (West 2014).

¶ 9 The scope of a section 19(g) action is limited. The statutory prerequisites for obtaining a...

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