The opinion of the court was delivered by: Justice Rakowski
Appeal from the Circuit Court of Cook County.
Honorable Joanne L. Lanigan, Judge Presiding.
Petitioner, Ganan & Shapiro, P.C., represented claimant, Sal DeSalvo, in a workers' compensation action. After all matters in that proceeding were complete, Ganan & Shapiro filed a petition before the Industrial Commission (the Commission) seeking attorney fees of 40% of claimant's award pursuant to section 16a(B) of the Workers' Compensation Act (the Act) (820 ILCS 305/16a(B) (West 1996)). After briefing and hearing, the Commission awarded Ganan & Shapiro 20% attorney fees. The circuit court confirmed, finding that Ganan & Shapiro failed to demonstrate any extraordinary services. On appeal, Ganan & Shapiro contends that the Commission's decision reflects it was unaware it had discretion to award fees in excess of 20%. Ganan & Shapiro asks us to remand to the Commission for consideration of its fee petition. Claimant, on the other hand, contends that the issue is whether the Commission's decision awarding 20% attorney fees is against the manifest weight of the evidence. We conclude that the Commission had authority to award attorney fees in excess of 20%, that the Commission was aware of this authority, and that the Commission did not abuse its discretion in refusing to award attorney fees in excess of 20%. Accordingly, we affirm.
DeSalvo was injured on May 12, 1976, while working for employer Shippers Dispatch, and he retained Ganan & Shapiro as his attorney. In 1981, the arbitrator awarded claimant temporary total disability benefits (TTD), medical benefits, and permanent disability to the extent of 65% of the person as a whole. Employer filed a petition for review before the Commission, which was dismissed in 1982. In 1983, Ganan & Shapiro filed a section 19(h) and section 8(a) petition on behalf of claimant. The Commission rendered an award in 1990. It confirmed the arbitrator's award of TTD benefits and medical benefits but increased claimant's disability award to total permanent disability. This award was confirmed by the circuit court in 1993 and affirmed by this court in 1994 (DeSalvo v. Industrial Comm'n, No. 1-93-3163 (1994) (unpublished order under Supreme Court Rule 23)). After we affirmed, Ganan & Shapiro filed a petition for attorney fees of 40% of the award. After briefing and a hearing, the Commission awarded Ganan & Shapiro fees in the amount of 20% of the award.
The fee award was confirmed by the circuit court. The circuit court stated that, although an attorney may be awarded more than 20% in fees where the services provided are extraordinary, citing Spinak, Levinson & Associates v. Industrial Comm'n, 209 Ill. App. 3d 120 (1990), and Rule 7080.10(a)(1) (50 Ill. Adm. Code §7080.10(a)(1) (1996)), Ganan & Shapiro failed to present evidence that its activities were extraordinary. The court further found that the Commission was aware it could award fees in excess of 20%.
Ganan & Shapiro contends that the only issue before this court is whether the Commission had discretion to award fees of more than 20%. On the other hand, DeSalvo contends that the only issue is whether the Commission's decision awarding 20% attorney fees was against the manifest weight of the evidence Actually, there are three questions before this court: (1) Does the Commission have authority to award fees of greater than 20%? If so, was the Commission aware of its discretion to do so? and (3) Is the Commission's decision to deny fees in excess of 20% an abuse of discretion? We address the first two questions together.
I. ABILITY TO AWARD GREATER THAN 20% ATTORNEY FEES
Ganan & Shapiro contends that the Commission was not aware it had discretion to award attorney fees in excess of 20% by relying on certain language of the Commission's order. Therefore, it seeks a remand to the Commission for consideration of its fee petition.
Section 16a(B) of the Act provides:
"With respect to any and all proceedings in connection with any initial or original claim under this Act, no claim of any attorney for services rendered in connection with the securing of compensation for an employee or his dependents, whether secured by agreement, order, award or a judgment in any court shall exceed 20% of the amount of compensation recovered and paid, unless further fees shall be allowed to the attorney upon a hearing by the Commission fixing fees, and subject to the other provisions of this Section. However, except as hereinafter provided in this Section, in death cases, total disability cases and partial disability cases, the amount of an attorney's fees shall not exceed 20% of the sum which would be due under this Act for 364 weeks of permanent total disability based upon the employee's average gross weekly wage prior to the date of the accident and subject to the maximum weekly benefits provided in this Act unless further fees shall be allowed to the attorney upon a hearing by the Commission fixing fees." (Emphasis added.) 820 ILCS 305/16a(B) (West 1996).
In reaching its decision, the Commission first detailed the procedural history of the case, Ganan & Shapiro's activity over that time, and the fact counsel was seeking 40%. It then concluded: "The Commission notes that §16a(B) of the Act provides that in a permanent total case, attorneys' fee shall be 20% of the amount received for a maximum period of 364 weeks.
Based on the foregoing, in consort with §16 and §16a(B) of the Act, the Commission finds that Petitioner attorney's fee is fixed at ...