¶1specially concurring:
¶2I agree with the majority that, as a matter of law, Community Grain and Farmland were entitled to a lien in the sum of $12,577.96 for expenses incurred in providing the PRM services. Accordingly, I concur in the decision to reverse and remand to have the reimbursement award increased by that sum.
¶3Nevertheless, I am concerned because plaintiffs are being required to pay this sum to Community Grain and Farmland even though plaintiffs were not permitted to recover for this item in the case in chief. No case concerning the problem thus created has been called to our attention. However, in Continental Casualty Co. v. Sweda (1969), 113 Ill. App. 2d 423, 251 N.E.2d 65, the court held that when the recovery by an employee from a third party is less than the amount of compensation paid the employee, the employer seeking reimbursement under what is now section 5(b) of the Illinois Workers’ Compensation Act (820 ILCS 305/5(b) (West 1992)) was entitled to the full recovery made by the employee and no equitable apportionment was to be made.
¶4Presumably, here, the plaintiffs could have cross-appealed from the judgment rendered to them contending that the circuit court erred in excluding evidence concerning the cost of the PRM services. In doing so they would be placing in jeopardy their award of $1,752,037 because the only relief they could have received would have been a' new trial as to damages which might have resulted in a lower damage award.
¶5Because of the priority given in Sweda to reimbursement of the payor of the workers’ compensation, I concur in the result reached by the majority, but I do so with concern for a problem that needs legislative study.