APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, SECOND DIVISION
510 N.E.2d 105, 156 Ill. App. 3d 786, 109 Ill. Dec. 484 1987.IL.825
Appeal from the Circuit Court of Cook County; the Hon. George M. Marovich and the Hon. Earl Arkiss, Judges, presiding.
JUSTICE BILANDIC delivered the opinion of the court. STAMOS and HARTMAN, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE BILANDIC
These consolidated appeals arise from several unsuccessful actions of Gerson B. Field (plaintiff), an attorney, seeking to compel payment of attorney fees out of the so-called "Second Injury Fund" established by the Illinois Workers' Compensation Act. Ill. Rev. Stat. 1985, ch. 48, par. 138.7(f).
H. B. Rollins, the employee whom plaintiff represented, was declared "totally and permanently disabled" and, therefore, entitled to receive $296 per week for life, as provided in paragraph 138.8(e)(18) of the Workers' Compensation Act (the Act). (Ill. Rev. Stat. 1985, ch. 48, par. 138.8(e)(18).) Crouch-Walker Corporation, Rollins' employer, was ordered to make the first 150 weeks of payments. The remainder of the payments are to be made by the Treasurer of the State of Illinois, custodian of the "Second Injury Fund" (the Fund). The Industrial Commission also awarded plaintiff attorney fees of 20% of the amount due Rollins for 364 weeks of total permanent disability in the sum of $21,548.80. Rollins paid a portion of the fees so that the present balance due is $17,963.12. Plaintiff was unable to collect the balance when his client moved out of the jurisdiction.
On certiorari, the circuit court affirmed the award of plaintiff's attorney fees. Rollins thereafter refused to authorize the Comptroller of the State of Illinois, who administers the Fund, to deduct 20% from his periodic disability pension payments to satisfy the award of attorney fees. In the meantime, Rollins moved to Mississippi.
Plaintiff instituted garnishment proceedings against the Treasurer of the State of Illinois, ex-officio Custodian of the Second Injury Fund. The parties submitted memoranda of law on the issue whether garnishment would attach to the Fund to enforce collection of the attorney fees.
The court ruled that the Fund is immune from claims of judgment creditors and that the custodian of the Fund is bound only to make disbursements to the injured employee because the Fund "shall not at any time be appropriated or diverted to any other use or purpose." (Ill. Rev. Stat. 1985, ch. 48, par. 138.7(f).) Accordingly, the garnishment proceedings were dismissed.
While garnishment proceedings were pending, plaintiff filed a complaint for mandamus in the Chancery Division, naming Rollins, his employer, the Chairman of the Industrial Commission, the Treasurer of the State of Illinois, and the Comptroller of the State of Illinois. Plaintiff's complaint prayed that a writ of mandamus issue directing the Comptroller of the Fund "to issue a separate warrant, draft or check for payment in an amount equal to 20% of the payments being made to H. B. Rollins until . . . $17,963.12 has been paid to Gerson B. Field in satisfaction of the judgment heretofore obtained for attorney fees."
Briefs were filed by the Attorney General on behalf of the State officials. The court dismissed the complaint for mandamus. After a motion for reconsideration was denied, this appeal followed.
The issue presented is whether attorney fees for representing an injured employee, awarded pursuant to the Workers' Compensation Act, may be recovered from the Second Injury Fund. This issue has not been determined in Illinois and, therefore, is a case of first impression.
The purpose of the Fund is to enhance the employability of handicapped persons who previously lost a member or its use, or the sight of an eye, by limiting the liability of employers hiring or retaining such persons in their employment, and at the same time, to afford such handicapped persons the proper measure of compensation if a second loss was sustained, with industry itself bearing the burden of such losses. (Arview v. Industrial Com. (1953), 415 Ill. 522, 530, 114 N.E.2d 698.) The Fund is accumulated by funds paid by employers under certain specified circumstances. (415 Ill. 522, 529, 114 N.E.2d 698.) The statute provides that payments made pursuant to the Act shall not be "held liable in any way for any lien, debt, penalty or ...