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Preston v. Industrial Commission of Illinois

July 8, 2002


Appeal from Circuit Court of Stark County No. 99MR14 Honorable Stuart P. Borden, Judge Presiding.

The opinion of the court was delivered by: Presiding Justice McCULLOUGH

Claimant Robert Preston appeals from an order of the circuit court of Stark County confirming the November 22, 1999, decision of the Illinois Industrial Commission (Commission) denying claimant's claim for additional compensation and attorney fees under sections 19(k), 19(l), and 16 of the Workers' Compensation Act (Act) (820 ILCS 305/19(k), 19(l), 16 (West 1998)). The respondent employer is Bell Trucking. The issues are whether (1) the Commission's decision is void because the procedures employed violated claimant's right to due process; (2) the Commission's denial of additional compensation and attorney fees was invalid because the Commission did not have a sufficient record before it to make that determination; and (3) the Commission's denial of additional compensation and attorney fees was contrary to law or against the manifest weight of the evidence. We affirm.

Claimant filed an amended petition for additional compensation and attorney fees subsequent to the arbitrator's award. This same arbitrator's award was the subject of a section 19(g) proceeding, and the relevant underlying facts are set out in a Third District Appellate Court decision in that case. Preston v. Bell Trucking, 295 Ill. App. 3d 659, 660-61, 693 N.E.2d 506, 507 (1998). In the section 19(g) proceeding, claimant was awarded judgment on the arbitrator's award of $74,144.64, arbitration attorney fees of $14,828.93, $1,651.70 arbitration costs, $71.00 for the section 19(g) filing fee, $6,406.25 section 19(g) attorney fees, $155.55 section 19(g) costs and 2-1303 interest of $5,886.16 from January 24, 1996, through December 13, 1996 and $18.28 per day until award, interest and section 19(g) sanctions are paid in full. In an opinion filed April 9, 1998, the appellate court affirmed the trial court's judgment in the section 19(g) proceeding, specifically finding that "[b]ecause the defendant refused to pay the award of the Commission for over nine months, the plaintiff was entitled to reasonable attorney fees and costs." Preston, 295 Ill. App. 3d at 662, 693 N.E.2d at 508. In the appellate court, claimant also filed a motion for sanctions pursuant to Supreme Court Rule 375(b) (155 Ill. 2d R. 375(b)) on May 6, 1998, that the appellate court denied on May 21, 1998.

Section 19(g) of the Act provides that a party may obtain a judgment based on a final award of an arbitrator or decision of the Commission "when no proceedings for review are pending." 820 ILCS 305/19(g) (West 1998). The record does not disclose that the Commission took any further action on respondent employer's petition for review.

In this case, the Commission found the following facts. Respondent employer hand delivered to claimant a check for the arbitrator's award and interest conditioned upon full satisfaction of all sums owing on December 6, 1996, and on December 9, 1996, claimant rejected the tender. The circuit court's decision in the section 19(g) proceeding was rendered on December 16, 1996. After the appellate court's decision in the section 19(g) proceeding, on May 18, 1998, claimant filed with the Commission an amended petition for additional compensation under section 19(k) and attorney fees under section 16 of the Act. On October 19, 1998, claimant filed a petition for additional compensation under section 19(l) of the Act. On October 27, 1998, claimant filed another amended petition based on nonpayment of medical expenses. On July 7, 1999, respondent employer filed a response to the petitions. Claimant filed a supplemental argument on September 13, 1999.

The Commission denied claimant's petition for additional compensation under section 19(k) and attorney fees under section 16 finding that the respondent employer reasonably believed it had a valid review pending before the Commission. The Commission also found that the appellate court's denial of the request for sanctions under Rule 375(b) included an implicit finding that the issues raised in the appeal in Preston were not frivolous and the appeal was taken in good faith. The Commission found that respondent employer's delay in paying the arbitrator's award was not unreasonable, vexatious, deliberate, or the result of bad faith or improper purpose. The Commission also denied the claim for additional compensation under section 19(l) because the petition filed October 19, 1998, was time-barred, not having been filed within two years after the arbitrator's award. The Commission cited section 13-202 of the Code of Civil Procedure (Code) (735 ILCS 5/13-202 (West 1992)) and Blacke v. Industrial Comm'n, 268 Ill. App. 3d 26, 644 N.E.2d 23 (1994).

In this appeal, claimant raises issues concerning the Commission's handling of her petition to disqualify commissioners Douglas F. Stevenson and Richard M. Gilgis filed June 23, 1998. Commissioner Gilgis was not assigned to this case, and the Commission did not address the motion to disqualify relative to commissioner Gilgis. An evidentiary hearing was conducted on December 17, 1998, presided over by commissioner Stevenson. Prior to that hearing, claimant filed a motion to vacate the order setting the hearing on the ground that the Commission had no authority to conduct an evidentiary hearing. The Commission conducted the hearing and denied claimant's petition to disqualify commissioner Stevenson in an order entered February 11, 1999. The record on appeal contains other petitions to disqualify and transcripts relative to those petitions in other cases before the Commission wherein claimant's attorney sought to disqualify commissioners. Those records were before the Commission at the hearing to disqualify in this case.

Claimant argues that the Commission's denial of additional compensation and attorney fees is void because of Stevenson's participation, contending that the decision in this case was entered without statutory authority. In Siddens v. Industrial Comm'n, this court recognized that the Commission can entertain a petition for additional compensation and attorney fees based on an alleged unreasonable and vexatious delay of payment of an award. See Siddens, 304 Ill. App. 3d 506, 513, 711 N.E.2d 18, 23 (1999). Claimant further contends that the Commission does not have the statutory authority to act in violation of due process. Section 19 of the Act does not authorize the entry of a decision by the Commission in violation of due process. Interstate Contractors v. Industrial Comm'n, 81 Ill. 2d 434, 438, 410 N.E.2d 837, 839 (1980); Gotter v. Industrial Comm'n, 152 Ill. App. 3d 822, 826, 504 N.E.2d 1277, 1279 (1987). Claimant argues there was a violation of his right to due process because commissioner Stevenson was not disqualified. The parties agree that the Act does not provide for the procedure employed by the Commission in this case, i.e. an evidentiary hearing on a motion to disqualify filed prior to a Commission review proceeding.

The Act is a purely statutory remedy. See Elles v. Industrial Comm'n, 375 Ill. 107, 113, 30 N.E.2d 615, 618 (1940). The Code and Supreme Court Rules do not apply to workers' compensation proceedings where the Act or the Commission's rules regulate the area or topic. Illinois Institute of Technology Research Institute v. Industrial Comm'n, 314 Ill. App. 3d 149, 154, 731 N.E.2d 795, 800 (2000). However, they may be relied on for guidance without finding that they are applicable to workers' compensation proceedings. Mora v. Industrial Comm'n, 312 Ill. App. 3d 266, 274, 726 N.E.2d 650, 656 (2000) (discussing amendment of an application for adjustment of claim).

When a party requests oral argument in a Commission review proceeding, such argument is to be heard by a panel of three commissioners comprised of no more than one from the employing class and one from the employee class, and a decision of the Commission is to be approved by a majority of that panel. 820 ILCS 305/19(e) (West 1998); Alexander, 306 Ill. App. 3d at 1085, 715 N.E.2d at 684. Commission rules require that an arbitrator or commissioner with a financial or other interest in the outcome of any litigation or any question connected therewith shall not participate in the adjudication of the cause. 50 Ill. Adm. Code §7030.30(a) (1999). The Commission's rule then gives examples of when disqualification should occur. 50 Ill. Adm. Code §7030.30(b) (1999). If the arbitrator or commissioner discloses the basis for disqualification, the parties and attorneys may agree in writing that the arbitrator's or commissioner's interest is immaterial, and then the arbitrator or commissioner may thereafter participate in the proceeding. 50 Ill. Adm. Code §7030.30(c) (1999). Otherwise, the case is reassigned. 50 Ill. Adm. Code §7030.30(d) (1999). When a commissioner withdraws from a case on review, that commissioner is to be replaced by a representative from the same statutorily designated class. 50 Ill. Adm. Code §7030.30(d)(2) (1999). Here, claimant sought to disqualify both of the employing class representatives on the Commission.

The Act and the Commission rules do not provide for the substitution of a commissioner as of right. See 735 ILCS 5/2-1001(a)(2) (West 2000) (providing for substitution of judge as of right). The Commission has adopted a substitution for cause system. There is nothing in the Act that prevents the Commission from conducting a hearing on a petition for disqualification of a commissioner. Claimant has not demonstrated an abuse of discretion by the Commission in conducting a hearing on his petition to disqualify commissioner Stevenson. See 735 ILCS 5/2-1001(a)(3)(iii) (West 2000).

The Commission determined, based on the history of cases in which claimant's attorney attacked the impartiality of employing-class commissioners and the other evidence presented that there was no merit to the petition to disqualify commissioner Stevenson. In addition, claimant provided no evidence at the hearing before the Commission to support his allegation of the petition to disqualify. Instead, the claimant relied on the legal argument that the Commission could not hear any evidence or rule on his allegation of fraud. The claimant's petition was not verified and no affidavit in support of the petition was submitted therewith. See 735 ILCS 5/2-1001(b)(3)(ii) (West 2000). Indeed, claimant argued to the Commission that the truth or falsity of the allegations of his petition to disqualify were irrelevant at the disqualification stage in the Commission proceedings.

Claimant failed to establish that commissioner Stevenson was financially or otherwise interested in the outcome of the case. The Commission's finding that he was not so interested was not against the manifest weight of the evidence or an abuse of discretion. Claimant has failed to establish a violation of due process that would render the Commission's decision a nullity.

Although we find no error in the handling of the petition to disqualify in this case, in reaching that result, we are cognizant of the fact that two commissioners, neither of whom were the subject of the petition to disqualify, concurred in the denial of the petition to disqualify. In the future, we suggest that a hearing on a petition to disqualify a commissioner not be conducted before a commissioner who is the subject of the petition. We further ...

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