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No. 2-02-0656WC

IN THE APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

Industrial Commission Division

JUSTICE HOFFMAN delivered the opinion of the court:

After receiving an award of permanent partial disability (PPD) benefits from his employer, Armour Swift-Eckrich (Armour), theclaimant, James Williams, filed a petition seeking an award ofpenalties pursuant to section 19(k) of the Workers' CompensationAct (Act) (820 ILCS 5/19(k) (West 2002)) and the assessment ofattorney's fees under section 16 of the Act (820 ILCS 5/16 (West2002)) due to Armour's delay in paying the benefits. TheCommission denied the petition. The circuit court, however, setaside the Commission's decision and remanded the matter to theCommission with instructions that it assess section 19(k) penaltiesin the amount of 50% of the benefit award and determine whatattorney's fees are due under section 16 and assess fees in thatamount. Armour now appeals from the circuit court order settingaside the Commission's decision. For the following reasons, wedismiss the appeal.

On January 15, 1998, the claimant sustained accidentalinjuries which arose out of and in the course of his employmentwith Armour. Thereafter, he filed a timely application foradjustment of claim seeking benefits under the Act. Following ahearing, an arbitrator issued a decision on November 9, 2000,awarding the claimant PPD benefits of $285.50 per week for 105.75weeks, representing the 20% loss of use of the claimant's left armand the 25% loss of use of his right arm. Neither party sought areview of the arbitrator's decision.

On March 14, 2001, the claimant filed a petition with theCommission seeking an award of penalties under section 19(k) of theAct and the assessment of attorney's fees under section 16 of theAct by reason of Armour's delay in paying the award. On that sameday, Armour's workers' compensation claims administrator, GallagherBassett Services, sent a check via Federal Express overnight delivery to the claimant's attorney in the amount of the award plus avoluntary payment of interest thereon. The claimant's attorneyreceived the payment on March 15, 2001.

On August 8, 2001, the Commission denied the claimant'spetition for the assessment of penalties and attorney's fees. Inits decision, the Commission noted that Armour asserted that thedelay in payment of the award occurred because both the claimsupervisor and claim examiner assigned to this claim quit and thefile lay unexamined. In denying the claimant's petition, theCommission found that Armour was "not guilty of 'unreasonable orvexatious delay of payment, or intentional underpayment ofcompensation' as required for penalties under Section 19(k)." Italso found that a 78-day delay in payment is not an unusually longdelay and that Armour's voluntary payment of interest on the awardshowed a lack of any "vexatious" intent.

The claimant sought judicial review of the Commission'sdecision in the circuit court of Kane County. On June 10, 2002,the circuit court entered an order, finding that the Commission'sdecision denying the claimant's petition for penalties andattorney's fees was against the manifest weight of the evidence. The circuit court reversed the Commission's decision and remandedthe matter back to the Commission "for the purposes of assessing apenalty in the amount of 50% of the amount awarded in conformancewith 820 ILCS 350/19(k) [sic] and for the purpose of determiningand assessing what attorney[']s fees are due in conformance with820 ILCS 350/16 [sic]." On June 27, 2002, Armour filed a noticeof appeal from the circuit court's order of June 10. In urgingreversal, Armour argues that the Commission's decision denying theclaimant's petition for penalties and attorney's fees was notagainst the manifest weight of the evidence and that, accordingly,the circuit court erred in setting it aside.

Even though the issue was not raised by either party, thiscourt has an obligation to determine if it has jurisdiction toentertain this appeal. In re Marriage of Betts, 159 Ill. App. 3d327, 330, 511 N.E.2d 732 (1987). As the Illinois Supreme Courtnoted in In re Marriage of Verdung, 126 Ill. 2d 542, 553, 535N.E.2d 818 (1989):

"Jurisdiction of appellate courts is limited to reviewingappeals from final judgments, subject to statutory orsupreme court rule exceptions. [Citations.] A judgmentis final for appeal purposes if it determines thelitigation on the merits or some definite part thereof sothat, if affirmed, the only thing remaining is to proceedwith the execution of the judgment. [Citations.]"

When the circuit court reverses a decision of an administrative agency and remands the case to the agency for furtherproceedings involving disputed questions of law or fact, the orderis not final for purposes of appeal. Wilkey v. Illinois RacingBoard, 96 Ill. 2d 245, 249-50, 449 N.E.2d 843 (1983). If, however,the agency on remand has only to act in accordance with thedirections of the court and conduct proceedings on uncontrovertedincidental matters or merely make a mathematical calculation, thenthe order is final for purposes of appeal. See A.O. Smith v.Industrial Comm'n, 109 Ill. 2d 52, 54-55, 485 N.E.2d 335 (1985);Wilkey, 96 Ill. 2d at 249-50.

In the statement of jurisdiction contained in its brief,Armour asserts that the circuit court's order of June 10, 2002, is"final for purposes of appeal," contending that, on remand, the"Commission is only required to make a mathematical calculation ofthe amount of the penalty and attorney's fee." We disagree.

Although the calculation of the amount of a penalty awardedpursuant to section 19(k) of the Act is purely a mathematicalcomputation (see 820 ILCS 305/19(k) (West 2000) (50% of the amountpayable at the time of the award)), the same cannot be said of anassessment of attorney's fees pursuant to section 16. In pertinentpart, section 16 of the Act provides that:

"Whenever the Commission shall find that theemployer, his or her agent, service company or insurancecarrier has been guilty of delay or unfairness towards anemployee in the *** payment of benefits due such employeewithin the purview of the provisions of paragraph (c) ofSection 4 of this Act; or has been guilty of unreasonableor vexatious delay, [or] intentional under-payment ofcompensation benefits ***, within the purview of theprovisions of paragraph (k) of Section 19 of this Act,the Commission may assess all or any part of theattorney's fees and costs against such employer and hisor her insurance carrier." (Emphasis added.) 820 ILCS305/16 (West 2000).

Unlike the assessment of a penalty pursuant to section 19(k),section 16 of the Act does not contain a formula to be used by theCommission in assessing attorney's fees against an employer whounreasonably, vexatiously or intentionally delays the payment ofcompensation benefits. The amount of fees to be assessed is amatter committed to the discretion of the Commission. See Stephensv. Industrial Comm'n, 284 Ill. App. 3d 269, 273-76, 671 N.E.2d 763(1996).

The circuit court's order of June 10, 2002, directed theCommission to both assess a penalty pursuant to section 19(k) ofthe Act in the sum of 50% of the claimant's award and to determineand assess the amount of attorney's fees to be awarded to theclaimant pursuant to section 16 of the Act. The latterdetermination is not merely a proceeding on an uncontrovertedincidental matter nor can it be resolved by the application of asimple mathematical calculation. The determination of the amountof fees to be assessed pursuant to section 16 is a matter committedto the Commission's discretion, involving a question of factsubject to dispute by the parties. As a consequence, the circuitcourt's order of June 10, 2002, is not final (see Wilkey, 96 Ill.2d at 249-50), and this appeal must be dismissed for want ofjurisdiction.

Appeal dismissed.

McCULLOUGH, P.J., and O'MALLEY, Jack, HOLDRIDGE, andGOLDENHERSH, JJ., concur.