No. 2--04--0979 ______________________________________________________________________ ________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT ______________________________________________________________________ ________
AURORA EAST SCHOOL DISTRICT, ) Appeal from the Circuit Court ) of Kane County. Plaintiff-Appellant, ) ) v. ) No. 02--MR--331 ) DON DOVER, ) Honorable ) Michael J. Colwell, Defendant-Appellee. ) Judge, Presiding. _________________________________________________________________________ _____
JUSTICE CALLUM delivered the opinion of the court:
Defendant, Don Dover, sought workers' compensation benefits for injuries he
sustained while working for plaintiff, Aurora East School District. Following an immediate
hearing pursuant to section 19(b) of the Workers Compensation Act (Act) (820 ILCS
305/19(b) (West 2002)), an arbitrator awarded defendant 596/7 weeks' temporary total
disability (TTD) benefits, $85,015.04 in medical expenses, and vocational rehabilitation.
Plaintiff sought review, and the Industrial Commission1 (Commission) affirmed and adopted
the arbitrator's decision. Plaintiff sought judicial review, and the trial court confirmed the
Commission's decision. Plaintiff appealed again, and the Appellate Court, Industrial
1 Now known as the Illinois Workers' Compensation Commission. See Pub. Act 93--
721, eff. January 1, 2005. No. 2--04--0979
Commission Division, 2 affirmed. See Aurora East School District 131 v. Industrial Comm'n,
No. 2--03--0230WC (2004) (unpublished order under Supreme Court Rule 23). The
appellate court denied plaintiff's petitions for rehearing and certification.
Subsequently, before the Commission, plaintiff moved for clarification regarding a
credit under section 8(j) of the Act (820 ILCS 305/8(j) (West 2002)) for payment of medical
bills. Defendant failed to appear at the hearing, and the motion was continued. Defendant
subsequently filed a section 19(g) motion (820 ILCS 305/19(g) (West 2002)) in the trial
court, requesting the court to reduce the Commission's award to a final judgment order.
The trial court entered such order in the amount of $127,701.25 and awarded defendant
$41,375 in attorney fees. Plaintiff appeals, and defendant petitions for additional fees and
costs and requests postjudgment interest. We affirm the trial court's order and deny
defendant's petition.
I. BACKGROUND
On December 8, 2000, defendant filed an application for adjustment of claim under
the Act, alleging that he sustained injuries to his neck, arms, and legs that arose out of and
in the course of his employment with plaintiff. Following a section 19(b) hearing, an
arbitrator awarded defendant 596/7 weeks' TTD benefits and $85,015.04 in medical
expenses and ordered the commencement of vocational rehabilitation.
2 Now known as the Workers' Compensation Commission Division. See Supreme
Court Rule 22(g) (Official Reports Advance Sheet No. 12 (June 8, 2005), R. 22(g), eff. May
23, 2005).
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Plaintiff petitioned for review, and the Commission, on August 7, 2002, affirmed and
adopted the arbitrator's decision, with the exception of an evidentiary ruling. It remanded
the case to the arbitrator pursuant to Thomas v. Industrial Comm'n, 78 Ill. 2d 327, 332-35
(1980), for further proceedings to determine any additional amount of TTD benefits or
permanent disability compensation that accrued subsequent to the arbitration hearing.
Plaintiff sought judicial review, and the trial court, on February 10, 2003, confirmed
the Commission's decision. Plaintiff appealed again, and the appellate court affirmed. On
February 19, 2004, the appellate court denied plaintiff's petitions for rehearing and
certification.
On March 30, 2004, plaintiff filed a motion with the Commission, seeking to
adjudicate payment of the awarded medical bills. Plaintiff alleged that the $29,908.12 in
TTD benefits awarded defendant had already been paid, along with interest. Plaintiff
further alleged that, at the time of the hearing, all medical bills remained unpaid. However,
subsequent to the arbitration hearing, defendant's group insurance provider, HMO Illinois,
had satisfied four of the outstanding medical bills. Plaintiff alleged that HMO Illinois is a
third-party administrator for plaintiff and that the group medical benefits that satisfied the
outstanding medical bills were funded by plaintiff. Plaintiff further alleged that it paid 100%
of defendant's group insurance premiums.
According to plaintiff, it had issued to defendant a check in the amount of $3,454,
representing two unpaid medical bills; plaintiff argued that it was entitled to a credit for this
payment. Plaintiff further alleged that four medical bills had been satisfied and that no sum
was left owing pursuant to the arbitrator's award. It argued that it was entitled to credit for
all medical bills paid by HMO Illinois. Plaintiff further alleged that it was making a good-faith
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effort to resolve the issue so as to avoid the imposition of penalties. Plaintiff requested that
the Commission find that it was entitled to a section 8(j) credit and that no further sum was
owed defendant regarding the medical bills. Defendant's attorney did not appear at the April
6, 2004, hearing on plaintiff's motion, and the motion was continued to June 18, 2004.
On May 26, 2004, defendant filed in the trial court a section 19(g) motion seeking to
reduce his award to a judgment. Defendant alleged that plaintiff had not paid the award in
full and had refused to pay the remaining balance. Also, defendant's attorney filed an
affidavit, stating he charged a $300 hourly rate for workers' compensation claims and had
spent 165.5 hours on defendant's case. He attached a bill itemizing his time spent on
defendant's case.
On May 26, 2004, the trial court entered judgment in defendant's favor in the amount
of $127,701.25 for the Commission's award and $41,375 in attorney fees. The court found
that plaintiff was not due a credit, as the Commission was without jurisdiction.
Plaintiff moved to reconsider, arguing that the Commission and not the trial court
had jurisdiction over the matter, that all remaining sums owed defendant had been paid,
and that the court erred in awarding attorney fees. Plaintiff alleged that it had issued
checks to defendant in the amount of $7,464.50 "representing payment to Dryer Clinic and
all sums paid by HMO Illinois," plus $3,454 to Associated Pathologist ($160) and Park
Ridge Anesthesiology ($3,294). Plaintiff argued that, between HMO Illinois's payments and
payments it had made, no medical bills remained unpaid. It further alleged that it had
agreed to hold defendant harmless for any claims for medical bills.
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On September 9, 2004, the trial court denied plaintiff's motion to reconsider. Plaintiff
appeals, and defendant petitions for additional attorney fees and costs and requests
postjudgment interest.
II. ANALYSIS
A. Trial Court's Jurisdiction
Plaintiff argues first that the trial court lacked jurisdiction to reduce the Commission's
award to a final judgment order, because the matter was remanded to the Commission by
the appellate court and because the section 8(j) credit issue was properly pending before
the Commission at the time of the section 19(g) hearing. 3 Plaintiff argues that its motion for
clarification filed with the Commission was another stage of the suit and, because it was
pending at the time defendant filed his section 19(g) motion, the Commission's decision
was not final and therefore the trial court lacked jurisdiction under section 19(g). In arguing
that the trial court lacked jurisdiction to consider defendant's section 19(g) motion, plaintiff
relies solely on the fact that it had a motion pending before the Commission.
Section 19(b) of the Act provides, in relevant part:
"The Arbitrator may find that the disabling condition is temporary and has not
yet reached a permanent condition and may order the payment of compensation up
3 Section 8(j) of the Act provides for credits in cases of double recovery through
compensation awards and private benefit plans. Board of Education v. Chicago Teachers
Union, Local No. 1, 86 Ill. 2d 469, 476 (1981). However, where a party does not assert its
right to these credits before either the arbitrator or the Commission, the party waives
whatever right it had to them. Board of Education, 86 Ill. 2d at 476.
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to the date of the hearing, which award shall be reviewable and enforceable in the
same manner as other awards, and in no instance be a bar to a further hearing and
determination of a further amount of temporary total compensation or of
compensation for permanent disability, but shall be conclusive as to all other
questions except the nature and extent of said disability." (Emphasis added.) 820
ILCS 305/19(b) (West 2002).
A TTD award under section 19(b) is a final and appealable order, notwithstanding the need
to remand to the arbitrator for a permanency determination. See Thomas, 78 Ill. 2d at 332-
35.
We reject plaintiff's argument that the trial court lacked jurisdiction because the
matter was remanded to the Commission. The TTD award was affirmed by the appellate
court, which subsequently denied plaintiff's petitions for rehearing and certification, thus
foreclosing further appeals. See Official Reports Advance Sheet No. 22 (October 27,
2004), R. 315(a), eff. January 1, 2005 (no petition for leave to appeal to the supreme court
may be filed from a judgment of the appellate court designated to hear workers'
compensation appeals unless at least one judge of that panel files a statement that the
case involves a substantial question that warrants consideration by the supreme court). In
other words, the Commission's decision became final and ripe for enforcement by the entry
of a judgment. Two prerequisites for a section 19(g) proceeding are that the Commission's
decision is final and that no review proceedings are pending. 820 ILCS 305/19(g) (West
2002). As the cause was remanded for only a permanency determination, the Commission
had no jurisdiction to further assess and/or amend the awards it made in its section 19(b)
decision.
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We turn next to whether the trial court had jurisdiction to consider defendant's
motion. Section 19(g) of the Act provides, in relevant parts:
"Except in the case of a claim against the State of Illinois, either party may
present a certified copy of the award of the Arbitrator, or a certified copy of the
decision of the Commission when the same has become final, when no proceedings
for review are pending, providing for the payment of compensation according to this
Act, to the Circuit Court of the county in which such exposure occurred or either of
the parties are residents, whereupon the court shall enter a judgment in accordance
therewith. In case where the employer refuses to pay compensation according to
such final award or such final decision upon which such judgment is entered, the
court shall in entering judgment thereon, tax as costs against him the reasonable
costs and attorney fees in the arbitration proceedings and in the court entering the
judgment for the person in whose favor the judgment is entered, which judgment
and costs taxed as herein provided shall, until and unless set aside, have the same
effect as though duly entered in an action duly tried and determined by the court,
and shall with like effect, be entered and docketed. ***
Judgment shall not be entered until 15 days' notice of the time and place of
the application for the entry of judgment shall be served upon the employer by filing
such notice with the Commission, which Commission shall, in case it has on file the
address of the employer or the name and address of its agent upon whom notices
may be served, immediately send a copy of the notice to the employer or such
designated agent." 820 ILCS 310/19(g) (West 2002).
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Faced with an employer's failure or refusal to pay a final award from which no further
appeal is taken, section 19(g) of the Act provides a statutory remedy for a claimant to
reduce the award to an enforceable judgment in the circuit court. Blacke v. Industrial
Comm'n, 268 Ill. App. 3d 26, 28 (1994). The award itself is not a judgment. Blacke, 268 Ill.
App. 3d at 28. In a section 19(g) proceeding, the trial court exercises limited, special,
statutory jurisdiction designed to permit speedy entry of judgment on an award, and the
requirements for the court's subject matter jurisdiction are strictly construed. Evans v.
Corporate Services, 207 Ill. App. 3d 297, 302 (1990). The court's inquiry is limited to a
determination of whether the section's requirements have been met. Konczak v. Johnson
Outboards, 108 Ill. App. 3d 513, 516 (1982); see also Evans, 207 Ill. App. 3d at 302. "The
court may not question the jurisdiction of the Commission or the legality of its actions."
Konczak, 108 Ill. App. 3d at 516. Similarly, the court may not review the Commission's
decision or otherwise construe the Act, even if the decision appears too large on its face.
Konczak, 108 Ill. App. 3d at 516-17; see also Michael v. Fansteel, Inc., 235 Ill. App. 3d 961,
964 (1992). 4
The statutory prerequisites for obtaining the judgment require that the claimant give
notice to the employer of the time and place for entry of judgment and present the trial court
4 Supreme Court Rule 22(g) provides that the Workers' Compensation Commission
Division hears and decides appeals involving only proceedings to review Commission
orders. Because a section 19(g) proceeding does not involve the review of a Commission
order, the Workers' Compensation Commission Division does not hear and decide appeals
from section 19(g) proceedings.
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with a certified copy of the Commission award or decision. 820 ILCS 305/19(g) (West
2002). Here, it is undisputed that the foregoing prerequisites were met. Thus, the trial
court had jurisdiction to consider defendant's section 19(g) motion.
B. Judgment Amount
Next, plaintiff argues that, assuming the trial court had jurisdiction to reduce the
Commission's decision to a final judgment order, the final $127,701.25 judgment order
should be reduced because the amount for which the court entered judgment, representing
payments and interest, was $38,945.13 in excess of the amount owed. Plaintiff asserts
that defendant's attorney conceded at the May 26, 2004, hearing that plaintiff made three
payments and that the balance owed was only $88,756.12.
"Only tender of full payment of the final award is a defense to a section 19(g)
petition." Michael, 235 Ill. App. 3d at 964, citing Voorhees v. Industrial Comm'n, 31 Ill. 2d
330, 332 (1964) (a tender of less than the full amount due the employee under the
Commission's final award did not constitute a tender, and the trial court properly entered
judgment on the full award under section 19(g)); see also Evans, 207 Ill. App. 3d at 303;
Ballard v. Industrial Comm'n, 172 Ill. App. 3d 41, 46 (1988). Here, plaintiff concedes that it
made only partial payment to defendant. Accordingly, it has no defense to the section
19(g) petition. We conclude that the trial court did not err in entering judgment on the full
award. 5
C. Attorney Fees Award
5 We express no opinion herein as to whether plaintiff may seek in some other
proceeding reimbursement for the payments it made to defendant or on his behalf.
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Plaintiff's final argument is that the trial court erred in awarding defendant attorney
fees, because plaintiff's conduct did not warrant such fees and because the award violated
plaintiff's due process rights.
1. Plaintiff's Conduct
We review the assessment of attorney fees under section 19(g) to determine
whether the trial court abused its discretion. See Bettis v. Oscar Mayer Foods Corp., 242
Ill. App. 3d 689, 691 (1993) (standard applied in reviewing denial of costs under section).
An abuse of discretion occurs where no reasonable person would agree with the trial
court's position. Homebrite Ace Hardware v. Industrial Comm'n, 351 Ill. App. 3d 333, 337
(2004).
Courts are not required to award attorney fees and costs in every section 19(g)
case. Evans, 207 Ill. App. 3d at 303. There must be a refusal to pay compensation, or
some installment thereof, when it becomes due. Evans, 207 Ill. App. 3d at 303. Relevant
factors to consider in assessing the unreasonableness of the failure to pay on the part of an
employer include: (1) the length of time that transpired between the date the Commission
decision became final and the date of the filing of the section 19(g) motion; (2) the parties'
negotiations during that period; (3) whether the Commission's decision leaves room for
good-faith disagreement as to the amounts owed by the employer; (4) whether and when
the employer made a good- faith offer of settlement; and (5) whether the employee ever
made a demand for payment. McGee v. Ractian Construction Co., 231 Ill. App. 3d 929,
935 (1992).
Turning to the first factor, we note that the Commission's decision became final on
February 19, 2004, when the appellate court denied plaintiff's petitions for rehearing and
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certification. Defendant filed his section 19(g) petition in the trial court on May 26, 2004.
Thus, three months passed during which plaintiff could have satisfied its obligation to
defendant. Plaintiff argues that the period was short and points out that it filed its motion
with the Commission within 60 days of the appellate court's decision, in a good-faith effort
to clarify any outstanding balances. However, as we determined above, the Commission
did not have jurisdiction to consider plaintiff's motion.
Addressing the second factor, plaintiff maintains that it made numerous efforts to
negotiate and communicate with defendant regarding the outstanding amount. However,
the record contains no evidence of such communications. Turning to the third factor, we
reject plaintiff's argument that the Commission's decision leaves room for good-faith
disagreement as to the amounts owed defendant. HMO Illinois, plaintiff's group insurance
provider, apparently forwarded medical payments to defendant's medical providers in
satisfaction of certain outstanding balances. However, plaintiff did not forward or have
forwarded over $85,000 in medical expense payments to defendant, as directed to do so in
the Commission's order. It is therefore not the Commission's decision but, rather, plaintiff's
actions that have created any confusion as to amounts still owed defendant.
Plaintiff next asserts that it made a good-faith offer of settlement and agreed to hold
defendant harmless regarding any claims brought by his medical providers. This argument
again ignores the Commission's directive to forward over $85,000 in medical expense
payments to defendant. As to the final factor, plaintiff concedes that defendant demanded
payment.
In sum, applying the aforementioned factors to the instant case, we cannot conclude
that the trial court abused its discretion in awarding defendant attorney fees.
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2. Due Process
Plaintiff next argues that the trial court violated its due process rights, where
plaintiff's attorney was cut off by the judge and not given the opportunity to be heard, where
the court denied plaintiff's request for discovery and a hearing on the fees issue, and where
the court, by failing to require defendant's attorney to submit detailed records, did not
comply with the law. Plaintiff requests that we vacate the trial court's decision and remand
the cause for a hearing on the attorney fees issue.
In considering an attorney fees award, the trial court should consider a variety of
factors. Robertson v. Calcagno, 333 Ill. App. 3d 1022, 1028 (2002). These include the skill
and standing of the attorney employed, the nature of the case, the novelty and difficulty of
the issues involved, the degree of responsibility required, the usual and customary charge
for the same or similar services in the community, and whether there is a reasonable
connection between the fees charged and the litigation. Robertson, 333 Ill. App. 3d at
1028.
We reject plaintiff's argument that its attorney was cut off by the trial judge every
time she attempted to interject an argument challenging the requested fees. Plaintiff's
attorney had the opportunity to present plaintiff's case during the hearing on defendant's
motion. Although plaintiff's counsel was cut off as she interjected an objection to the $300
hourly rate defendant's counsel requested be used in the fees calculation, the trial court
ultimately did reduce the hourly rate to $250.
We also reject plaintiff's argument that its due process rights were violated because
the trial judge ignored its request for discovery and a hearing on the fees issue and ignored
the law by failing to require that defendant's attorney submit detailed records specifying the
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services performed and the computations that were used. A full evidentiary hearing is not
always necessary in order to determine reasonable attorney fees. Kaufman, Litwin &
Feinstein v. Edgar, 301 Ill. App. 3d 826, 836 (1998). Illinois courts frequently award
attorney fees without discovery by the party charged with paying them and without holding
an evidentiary hearing. Raintree Health Care Center v. Illinois Human Rights Comm'n, 173
Ill. 2d 469, 495 (1996). A nonevidentiary proceeding is proper so long as the decision
maker can determine from the evidence presented, including a detailed breakdown of fees
and expenses, what amount would be a reasonable award and the opposing party has an
opportunity to be heard. Raintree, 173 Ill. 2d at 495-96. There is no basis in the record to
conclude that the trial court abused its discretion in awarding defendant attorney fees.
Plaintiff points out that the party seeking attorney fees must set forth with specificity the
legal services provided, the identity of the attorney providing the legal services, an
itemization of the time expended for the individual service, and the hourly rate charged.
See In re Marriage of Konchar, 312 Ill. App. 3d 441, 444 (2000). In the affidavit he filed
with defendant's section 19(g) motion, defendant's attorney itemized his charges by
specifying, by date, the work performed and time spent (in fractions of an hour) on various
tasks. Based on this documentation, we conclude that the trial court did not abuse its
discretion in awarding defendant attorney fees.
C. Defendant's Petition
Finally, defendant petitions for additional attorney fees and costs for time spent in
pursuing compliance with the Commission's order after it became final. Specifically,
defendant asserts that his attorney spent 10 hours preparing for and arguing in
proceedings before the trial court and the Commission; 2 hours reading and reviewing
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plaintiff's filings with the trial court and this court; and 20 hours reviewing the case file,
performing research, and preparing defendant's appellate brief. Also, defendant spent $15
to file an appearance in the trial court. Accordingly, defendant requests an $8,015 increase
in the fees and costs awarded by the trial court and further requests that 9% postjudgment
interest be added to the trial court's judgment.
Defendant does not address the authority under which this court may award
additional fees and costs. Because defendant petitions for additional fees, we assume the
authority on which he relies is section 19(g). However, to preserve the issue for review,
defendant was required to file a cross-appeal pursuant to Supreme Court Rule 303(a)(3).
Official Reports Advance Sheet No. 22 (October 26, 2005), R. 303(a)(3), eff. January 1,
2006. Raising the issue in the form of a petition to this court is insufficient. Accordingly, we
lack jurisdiction to consider the issue of additional attorney fees and costs under section
19(g). Commonwealth Edison Co. v. Industrial Comm'n, 167 Ill. App. 3d 229, 234 (1988).
To the extent that defendant asserts a right to attorney fees under any other authority, such
as in the form of an appellate sanction for filing a frivolous appeal under Supreme Court
Rule 375(b) (155 Ill. 2d R. 375(b)), we find his request waived for failure to cite to that
authority. See Official Reports Advance Sheet No. 21 (October 17, 2001), R. 341(e)(7), eff.
October 1, 2001 (arguments shall contain citations of the authorities relied upon); Franzoni
v. Hart Schaffner & Marx, 312 Ill. App. 3d 394, 405 (2000) (argument waived for failure to
cite authority). Turning to defendant's request for postjudgment interest, we again find we
lack jurisdiction to consider defendant's request because he failed to file a cross-appeal.
III. CONCLUSION
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For the foregoing reasons, the judgment of the circuit court of Kane County is
affirmed and defendant's petition is denied.
Affirmed; petition denied.
McLAREN and BYRNE, JJ., concur.
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