Alvarado v. Industrial Comm'n

Case Date: 03/03/2004
Court: Industrial Commission
Docket No: 1-02-2832WC Rel

            NOTICE
Decision filed 03/03/04.  The text of this decision may be changed or corrected prior to the filing of a Petition for Rehearing or the disposition of the same.

No. 1--02--2832WC



IN THE APPELLATE COURT OF ILLINOIS
 
FIRST DISTRICT
 
INDUSTRIAL COMMISSION DIVISION
 


ANGEL ALVARADO,

          Appellant,

v.

THE INDUSTRIAL COMMISSION and
CENTRAL DIE CASTING

(Goldstein, Fishman, Bender & Romanoff,
Appellee).

)
)
)
)
)
)
)
)
)
)
)
Appeal from the Circuit Court of Cook
County.

No. 02--L--50097




Honorable
Alexander P. White,
Judge, Presiding.


JUSTICE CALLUM delivered the opinion of the court:

I. INTRODUCTION

In 1996, the law firm of Goldstein, Fishman, Bender & Romanoff (Goldstein) filed on behalfof claimant, Angel Alvarado, an application for adjustment of his claim under the Workers'Compensation Act (Act) (820 ILCS 305/1 et seq. (West 2002)). Claimant discharged Goldstein andhired Ribbeck Maravi, P.C. (Ribbeck Maravi). In 1999, Ribbeck Maravi filed a second applicationfor adjustment of claim for the same injury that was the subject of the 1996 application. The 1996case was voluntarily dismissed, and the parties settled the 1999 case. Five months after the arbitrator approved the settlement, Goldstein petitioned for attorney fees. The Industrial Commission(Commission) awarded Goldstein attorney fees, and the trial court confirmed the award. On appeal,claimant argues that the Commission did not have the authority to reopen the case and award attorneyfees to claimant's former attorneys five months after the lump-sum settlement between claimant andhis employer was approved. We agree and therefore vacate the award of fees to Goldstein.

II. BACKGROUND

On August 19, 1996, claimant was injured while working for employer, Central Die Casting. On December 19, 1996, Goldstein filed on claimant's behalf an application for adjustment of claim. On August 15, 1997, Goldstein withdrew its appearance, and Ribbeck Maravi was substituted asclaimant's attorney of record. On October 31, 1997, Goldstein petitioned for attorney fees for timeit spent on claimant's case through August 14, 1997. The arbitrator continued the petition and onJanuary 5, 1998, ordered the parties to notify Goldstein of the settlement or resolution of the claimand ordered employer not to issue any drafts until Goldstein's fee petition was resolved.

On August 11, 1999, Ribbeck Maravi filed a second application for adjustment of claim forthe same injury that was the subject of the 1996 application. The 1999 application stated thatclaimant had not filed any prior applications. The attorney representation agreement submitted withthe application in the 1999 case was dated March 31, 1997. Both cases were consolidated.

On January 17, 2001, the arbitrator granted claimant's motion to voluntarily dismiss the 1996case. Shortly thereafter, the parties settled the 1999 case. The record does not contain the fullsettlement agreement or the order approving the agreement. The parties and the Commissionrepresent that on February 13, 2001, claimant signed a lump-sum settlement agreement. On March14, 2001, the arbitrator approved the settlement and awarded Ribbeck Maravi $19,413.33 in attorneyfees. There is no dispute that Goldstein did not receive notice of the settlement.

On August 9, 2001, Goldstein again petitioned for attorney fees. During the hearing onGoldstein's petition, claimant and his attorneys objected to the Commission's jurisdiction to hear thepetition on the ground that it was filed several months after the claim was resolved. On January 8,2002, the Commission granted the petition and awarded Goldstein $1,350. In finding that it hadjurisdiction to hear the petition, the Commission reasoned that the 1999 case was in all materialrespects identical to the 1996 case. Goldstein protected its claim for fees by timely presenting it tothe arbitrator in December 1997. The dismissal of the 1996 case was a mere technicality that couldnot defeat the Commission's jurisdiction to resolve the fee dispute. Moreover, the Commission foundthat claimant and his current attorneys were estopped from asserting that the fee petition was barred. The Commission noted first that Claimant's representation agreement with Ribbeck Maravi was datedMarch 31, 1997, and Goldstein apparently continued to work on claimant's case until August 1997. Second, the 1999 application incorrectly stated that no prior application had been filed. Third, whenthey presented the motion to voluntarily dismiss the 1996 case, claimant and his attorneys failed toremind the arbitrator of the pending fee petition. According to the Commission, these facts suggestedthat claimant and his attorneys were deliberately attempting to avoid claimant's obligations toclaimant's former attorneys. The Commission referred the matter to the Attorney Registration andDisciplinary Commission to investigate whether claimant's current attorneys violated Rule 7--102 ofthe Code of Professional Responsibility (201 Ill. 2d R. 7--102).

Claimant sought judicial review, and the trial court confirmed the Commission's decision. Claimant timely appealed.

III. DISCUSSION

On appeal, claimant argues that the Commission lacked jurisdiction to reopen its final decisionand award Goldstein attorney fees several months after the settlement was approved. He asserts thatHoshor v. Industrial Comm'n, 283 Ill. App. 3d 295 (1996), is directly on point. In Hoshor, the lawfirm Kanoski & Associates (Kanoski) filed an application for adjustment of claim on the claimant'sbehalf. A few months later, the attorney handling the claimant's case, Ms. Hayes, left Kanoski to starther own practice. A Kanoski attorney, Mr. Apfelbaum, took over the case and on March 24, 1992,obtained an initial settlement offer of $4,405. On March 31, 1992, Hayes advised Kanoski that theclaimant had retained her and that she would agree to a fee-sharing arrangement. On May 26, 1992,the claimant advised Apfelbaum that Hayes had obtained a settlement offer of more than $5,000. OnMay 28, 1992, Apfelbaum telephoned the employer's insurance carrier to confirm the offer. Duringthe conversation, the adjuster raised the offer to $6,500. Apfelbaum advised the claimant, whoauthorized Apfelbaum to settle for that amount. The claimant later told Apfelbaum that she wantedHayes to complete the settlement. On June 7, 1992, the parties filed an attorney substitution formwith the Commission. Hayes prepared the settlement papers showing $6,500, less $975 in attorneyfees. The Commission approved the settlement in July 1992. In March 1993, Kanoski petitioned forattorney fees. After a hearing, the Commission ordered Hays to pay Kanoski $881. Hoshor, 283 Ill.App. 3d at 296-97.

The Hoshor court noted that the Commission's approval of a settlement, along with theattorney fees provision, has the same legal effect as an award. Like any Commission award, anapproved settlement becomes final unless a petition for review is filed within 20 days pursuant tosection 19(f)(1) of the Act (820 ILCS 305/19(f)(1) (West 2002)). Hoshor, 283 Ill. App. 3d at 298. According to the court, the Commission's jurisdiction and powers are limited to those provided bystatute. Hoshor, 283 Ill. App. 3d at 298. See also Daniels v. Industrial Comm'n, 201 Ill. 2d 160, 170(2002).

According to the court, only two provisions of the Act grant the Commission power to reopenor modify a final decision. Section 19(h) provides that a change in the claimant's condition ordisability allows the Commission to reopen or modify an award. 820 ILCS 305/19(h) (West 2002). This section is strictly limited to review for a change in the nature of the disability and does notcontemplate reopening to consider attorney fees. Hoshor, 283 Ill. App. 3d at 298. Section 19(f)provides that, within 15 days after receiving the award or decision on review, a party may move tocorrect clerical or computational errors. 820 ILCS 305/19(f) (West 2002). Section 19(f) is not,however, a proper vehicle for a rehearing or reconsideration of the merits of the case. Hoshor, 283Ill. App. 3d at 298-99. Because the Act contains no provision for reopening or modifying a finaldecision to revisit the issue of attorney fees, the Commission lacked jurisdiction to reopen the awardand apportion attorney fees in a manner inconsistent with the original decision. Hoshor, 283 Ill. App.3d at 298.

We see no basis for distinguishing Hoshor. It is true that the former attorneys in Hoshor didnot present their first fee petition until several months after the Commission approved the settlementagreement. Here, in contrast, Goldstein first presented its claim for fees in October 1997, almost 2