Yocum v. Industrial Commission

697 N.E.2d 766, 297 Ill. App. 3d 813, 232 Ill. Dec. 24, 1998 Ill. App. LEXIS 406
Appellate Court of Illinois·Decided June 19, 1998·No. 4-97-0285 WC·Published·Cited by 2 cases

Opinion

JUSTICE McCULLOUGH

delivered the opinion of the court:

Claimant, Shirley Yocum, appeals from the order of the circuit court confirming an order of the Industrial Commission (Commission) that allocated $15,000 in attorney fees between claimant’s attorney, Warren E. Danz, and her former attorney, Delano Law Offices (Delano), following the Commission’s approval of an agreed settlement of claimant’s claim for benefits pursuant to the Workers’ Compensation Act (Act) (820 ILCS 305/1 et seq. (West 1996)). Attorney Danz claims the Commission lacked subject-matter jurisdiction to allocate attorney fees because Delano failed to file with the Commission a petition for review of the arbitrator’s decision within 30 days as provided for in section 19(b) of the Act. 820 ILCS 305/19(b) (West 1996). We affirm.

On July 20, 1990, Delano filed an application for adjustment of claim on behalf of claimant, alleging a work-related accident occurring February 7, 1990. In September 1993 claimant discharged Delano as her attorney and employed Danz. Delano filed a motion to withdraw, requesting that attorney fees due it be determined by the arbitrator at the conclusion of the case. The motion was allowed by the arbitrator and an order entered on September 13, 1993, by arbitrator White. Delano sent claimant’s medical records to Danz, requesting that it be advised when there was a settlement or decision so that attorney fees due Delano and Danz could be determined and Delano could file a petition.

On January 10, 1996, Delano received a copy of a correspondence from claimant’s employer to Danz referencing a settlement contract to be presented to the arbitrator for settlement of claimant’s claim. On February 1, 1996, Delano wrote to Danz referencing the settlement contract, proposing an allocation of attorney fees. On February 2, 1996, Delano sent a notice of motion to Danz that he would appear on February 13, 1996, before arbitrator White for a hearing on the motion to allocate fees. On that date, Danz’s office advised Delano that the contract would not be presented until the next hearing on March 18, 1996. Delano then rescheduled the hearing on the motion for allocation of fees to March 18. Without informing Delano, Danz removed the case from the arbitrator’s March 18, 1996, hearing docket. Delano again reset the hearing on the petition for allocation of fees to April 15, 1996. On that date, Danz’s office advised Delano that the settlement contract had been submitted to the arbitrator and approved by her.

The settlement contract, which Danz neglected to file of record and a copy of which was instead stapled to his brief, indicates it is a lump-sum settlement of $75,000, $15,000 of which was awarded as attorney fees. It was signed by the employer on January 9, 1996, by claimant on March 7, 1996, and by Danz on March 18, 1996, the same day Danz removed the case from the arbitrator’s hearing docket. The copy of the settlement contract suggests it was approved by both the arbitrator and the Commission, but the date this occurred is not discernable. Delano then filed a motion for allocation of fees with the Commission on April 25, 1996. Following a hearing, the Commission entered an order granting Delano $5,411.50 of the attorney fees awarded based on quantum meruit. The circuit court confirmed.

A review of the record and the Commission’s September 25, 1996, order suggests that arbitrator White approved the settlement contract. The Commission’s order in the fee dispute does not state that the Commission had reviewed the settlement contract but, rather, it simply addresses the Delano motion filed April 25, 1996.

The Commission found that “[although the settlement contract is approved by arbitrator White, there is no date as to when she approved it.” The motion for allocation of fees was heard by Commissioner Gilgis on June 11, 1996. Both Delano and Danz presented evidence and testimony at the June 11 hearing concerning the work done by Delano for claimant. The Commission found “[tjhere was clear documentation between Mr. Smith of Delano Law Offices and Mr. Danz that settlement of the case was occurring. Mr. Smith filed § 16 Petitions before and after the lump [-] sum settlement contract approval.”

Citing Hoshor v. Industrial Comm’n, 283 Ill. App. 3d 295, 671 N.E.2d 347 (1996), Danz contends the Commission’s order is void for lack of subject-matter jurisdiction because Delano never perfected its appeal rights by filing with the Commission a petition for review of the arbitrator’s decision within 30 days, as provided in section 19(b) of the Act. See 820 ILCS 305/19(b) (West 1996). We find Hoshor factually and procedurally inapplicable. Hoshor concerned the failure to timely seek review of the Commission decision, whereas here the issue concerns the asserted failure to timely seek Commission review of the arbitrator’s decision. In Hoshor, a petition to allocate attorney fees was filed eight months after the Commission’s final decision approving a settlement agreement providing for attorney fees. The Hoshor court determined that the petition for fees was untimely because the Commission’s decision became final 20 days after its approval of the settlement contract and the claimant’s former attorney had failed to seek a modification or correction by the Commission pursuant to section 19(f) or 19(h) (820 ILCS 305/19(f), (h) (West 1996)), or seek circuit court review within 20 days pursuant to section 19(f)(1) of the Act. Hoshor, 283 Ill. App. 3d at 298-99, 671 N.E.2d at 349. At the time the settlement agreement was before the Commission for approval, the attorney in Hoshor failed to present any petition for allocation of fees or timely petition the circuit court with any justification of why it had not done so.

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Yocum v. Industrial Commission, 697 N.E.2d 766, 297 Ill. App. 3d 813, 232 Ill. Dec. 24, 1998 Ill. App. LEXIS 406 (Ill. Ct. App. 1998).

697 N.E.2d 766 (Yocum v. Industrial Commission) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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