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September 6, 1996


Appeal from Circuit Court of Cook County. No. 95L50028. Honorable Alexander P. White, Judge Presiding.

Rehearing Denied October 23, 1996. Released for Publication November 18, 1996.

Presiding Justice McCULLOUGH delivered the opinion of the court: Rakowski, Colwell, Holdridge and Rarick, JJ., concur.

The opinion of the court was delivered by: Mccullough

PRESIDING JUSTICE McCULLOUGH delivered the opinion of the court:

Claimant Geraldine Stephens appeals from an order of the circuit court of Cook County confirming a decision of the Illinois Industrial Commission (Commission) awarding attorney fees pursuant to section 16 of the Workers' Compensation Act (Act) (820 ILCS 305/16 (West 1994)) at a rate of 20% of awarded compensation. This matter was considered by the Commission on remand from this court which directed the Commission to take evidence in its determination to award section 16 attorney fees. Stephens v. Industrial Comm'n, 246 Ill. App. 3d 1113, 213 Ill. Dec. 83, 658 N.E.2d 553 (1993) (unpublished order under Supreme Court Rule 23). Respondent employer is the County of Cook. The Commission has filed a responsive brief in this appeal.

The issues raised on appeal are whether (1) Commission rule 7080.10(a)(1) (50 Ill. Adm. Code § 7080.10(a)(1) (1985)) is a valid rule (820 ILCS 305/16a (West 1994)); (2) as a matter of law, the award of attorney fees was defective because the Commission misinterpreted sections 16 and 16a of the Act; (3) the Commission finding that the expending of 120 hours of post-Commission litigation was not extraordinary service was against the manifest weight of the evidence; and (4) the Commission improperly refused to reimburse claimant for attorney fees paid to recover benefits and medical expenseswithheld by respondent in violation of sections 19(k) and 16 of the Act (820 ILCS 305/19(k) (West 1994)). We affirm.

Claimant, a correctional officer, was injured on February 3, 1987, when she fell while chasing an inmate. On July 8, 1988, the arbitrator awarded claimant benefits and penalties under section 19(l) of the Act (Ill. Rev. Stat. 1987, ch. 48, par. 138.19(l)) for respondent's delay in paying temporary total disability (TTD). Both parties sought review before the Commission, but respondent's petition for review was dismissed on respondent's motion which indicated claimant had been paid. The Commission denied claimant's request for additional attorney fees and penalties because claimant failed to prove respondent's delay in paying TTD after the arbitrator's decision was unreasonable and without good cause. The circuit court found the Commission had improperly imposed upon claimant the burden of proving that the respondent's filing of a petition for review was vexatious and unreasonable under the circumstances. The cause was remanded for the Commission to consider section 19(l) penalties, additional compensation pursuant to section 19(k) (Ill. Rev. Stat. 1987, ch. 48, par. 138.19(k)), and section 16 attorney fees (Ill. Rev. Stat. 1987, ch. 48, par. 138.16).

On remand from the circuit court, the Commission denied the respondent's request for a de novo hearing and found that respondent had failed to present any evidence that the 65-day delay in paying the award was reasonable; that the payment came after repeated delays in paying TTD; and the explicit mandate of the Act to provide prompt, sure, and definite compensation was contravened. The Commission awarded $5,322.78 in additional compensation pursuant to section 19(k) of the Act, $1,064.76 (20% of the 19(k) penalty) in attorney fees pursuant to section 16 of the Act, and $650 in penalties pursuant to section 19(l) of the Act. The circuit court confirmed the decision. This court reversed and remanded solely on the issue of whether the allowance of attorney fees pursuant to section 16 of the Act was adequate. This court found that the Commission did not have any evidence as to time expended and value of services provided by claimant's attorney and the award of 20% of the amount of section 19(k) penalty was arbitrary and against the manifest weight of the evidence. The cause was remanded to the Commission for an evidentiary hearing to determine the amount of attorney fees, if any, to be awarded claimant pursuant to section 16 of the Act. The order of this court did not direct the Commission to award or deny attorney fees, but required the Commission to conduct an evidentiary hearing. Stephens, 246 Ill. App. 3d 1113, 213 Ill. Dec. 83, 658 N.E.2d 553 (slip order at 5-6) (1993) (unpublished order under Supreme Court Rule 23).

Following the most recent remand, claimant's attorney, Ivan M. Rittenberg, sought a total of $48,400 in attorney fees for the time expended following the Commission's initial decision. Claimant's attorney used a $200-per-hour rate and a multiplier of two because, in his opinion, the work performed was significant, important, and contingent on a vindication of the Act. Claimant has apparently dropped the multiplier on appeal.

On the issue of attorney fees, the Commission's decision stated:

"Based on the facts of this case it is clear that Petitioner's attorney diligently pursued the issue of penalties due the Petitioner for the unreasonable 65[-]day delay caused by the Respondent in payment of benefits. It is equally clear that it was only through the efforts of Petitioner's attorney in appealing this matter through the Commission and into the circuit court that justly deserved § 19(k) and (l) penalties were obtained for the benefit of the Petitioner. However, this case represents no truly unique legal questions and constitutes nothing more than a Workers' Compensation case where the Petitioner had to earnestly pursue justifiable penalties. The purpose of § 19(k) penalties is to protect the injured worker by penalizing the employer for vexatious and unreasonable conduct. The purpose of awarding attorneys' fees as a penalty under § 16 is to relieve the petitioner of the responsibility for paying the attorney's fees he would otherwise be obligated to pay. Allowing the increase of fees based on a quantum meruit theory is not warranted. There is nothing in the experience of the Commission that leads to the belief that attorneys are unwilling to represent injured workers if they are paid fees at the rate established by the Act. Fees based on quantum meruit constitute an unreasonable cost burden on the system. In a vexatious case involving § 16, fees may be awarded on all compensation. A fee should not exceed what the Petitioner would have had to pay or 20% of the total award due."

In confirming the Commission's decision, the circuit court quoted sections 16 and 16a(A) and (B) of the Act (820 ILCS 305/16a(A), (B) (West 1994)), section 7080.10(a)(1) of the Commission's rules, Spinak, Levinson & Associates v. Industrial Comm'n, 209 Ill. App. 3d 120, 125, 568 N.E.2d 41, 44, 154 Ill. Dec. 41 (1990), and Muller v. Jones, 243 Ill. App. 3d 711, 713, 613 N.E.2d 271, 272-73, 184 Ill. Dec. 244 (1993). The circuit court reasoned that to require the respondent to pay the attorney fees requested by claimant would pay Rittenberg far in excess of the value of his services to claimant. According to the circuit court, the fact that time and effort was expended beyond that contemplated by claimant's attorney was a circumstance which the attorney must bear. The circuit court concluded, "To decide otherwise would encourage protractedlitigation in the pursuit of penalties, with minimal benefit accruing to the claimant." Noting that in Muller, it was stated that the legislature contemplated that the fee schedule under the Act included compensation for prosecuting a judicial review, the circuit court found the Commission's finding of the reasonableness of the fees awarded and the implicit finding of no extraordinary service were not against the manifest weight of the evidence.

We first address whether Commission rule 7080.10(a)(1) is a valid rule. Claimant admits that this issue was raised for the first time in this case in this appeal because the circuit court referred to the rule. Although respondent and the Commission do not argue that the issue is waived, an issue not raised before the Commission is waived. Taylor Coal Co. v. Industrial Comm'n, 301 Ill. 381, 387-88, 134 N.E. 169, 171 (1922).

In any event, it is unnecessary to consider the validity of this rule in this case. The rule in ...

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