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Radosevich v. Industrial Commission

September 19, 2006

FATHER GEORGE RADOSEVICH, EXECUTOR OF THE ESTATE OF EMMA HOEMMEN, APPELLANT AND CROSS-APPELLEE,
v.
THE INDUSTRIAL COMMISSION ET AL. (ROMAN CATHOLIC DIOCESE OF SPRINGFIELD, ILLINOIS), APPELLEE AND CROSS-APPELLANT.



Appeal from Circuit Court of Macoupin County No. 02MR27 Honorable Richard T. Mitchell, Thomas P. Carmody, Judges Presiding.

The opinion of the court was delivered by: Justice McCULLOUGH

Father George Radosevich, executor of the estate of Emma Hoemmen, deceased, appeals from the May 5, 2005, judgment of the circuit court of Macoupin County, awarding Emma Hoemmen (claimant) reasonable attorney fees and costs pursuant to her section 19(g) application for entry of judgment under the Workers' Compensation Act (Act) (820 ILCS 305/19(g) (West 2002)) and interest pursuant to section 19(n) of the Act (820 ILCS 305/19(n) (West 2002)), arguing (1) the circuit court erred in not awarding claimant attorney fees for the arbitration proceedings and circuit-court proceedings in an amount that is usual and customary and (2) the circuit court erred in failing to award claimant proper interest on the workers' compensation award. The Roman Catholic Diocese of Springfield, Illinois (employer), cross-appeals, arguing the circuit court erred in finding it refused to pay claimant's workers' compensation award. For the reasons that follow, we affirm in part, reverse in part, and remand with directions.

On August 31, 1999, claimant fell and suffered a comminuted humeral neck fracture to her left shoulder with displacement and varus angulation while working as a housekeeper for employer. On September 17, 2002, after a hearing, an arbitrator found claimant sustained injuries that arose out of and in the course of her employment with employer. Employer was ordered to pay claimant (1) temporary total disability (TTD) in the amount of $4,550, representing 37 1/7 weeks during which claimant was temporarily totally disabled, (2) permanent total disability (PTD) in the amount of $39,897.08, representing 120 1/7 weeks during which claimant was totally disabled and $332.08 per week thereafter, (3) maintenance in the amount of $34,720 and $120 per week thereafter, and (4) $120 per month for home health services. Employer was also ordered to provide claimant with the Care Link warning system. Neither party sought review of this award.

On October 25, 2002, employer's attorney sent a letter to claimant's attorney requesting social-security-number information for claimant. In addition, employer's attorney reminded claimant's attorney of a discussion where a lump-sum settlement had been proposed. Employer's attorney stated it was her understanding that claimant's attorney would be presenting the idea to claimant and would then respond to the request. Employer's attorney stated she had not heard from claimant's attorney in this regard.

On November 14, 2002, claimant's attorney responded to employer's attorney's letter. Claimant's attorney stated he had spoken with employer's attorney's voice mail or secretary in the past, stating claimant was not interested in a lump-sum- settlement offer, and he again reiterated his client's disinterest in such a settlement at the present time. Claimant's attorney demanded payment of the arbitrator's award within one week.

On December 13, 2002, claimant filed an application for entry of judgment pursuant to section 19(g) of the Act, requesting attorney fees and costs for employer's alleged refusal to pay the arbitration award. On January 2, 2003, a hearing was held on claimant's section 19(g) application. On January 2, 2003, and January 3, 2003, employer issued payment to claimant totaling $84,307.65. On January 10, 2003, employer issued payment to claimant totaling $5,884.16.

On April 30, 2003, Judge Carmody issued a memorandum of decision, finding employer refused to pay the arbitration award. However, claimant's request for $32,310.35 attorney fees was found to be excessive and unreasonable. Instead, the circuit court awarded claimant $6,000 in attorney fees and $847.20 in interest. The court did not specify whether this award included attorney fees for both the arbitration proceedings and the circuit-court proceedings. The court ordered employer to prepare an order consistent with the court's decision. Employer did not prepare an order as directed by the court.

On May 22, 2003, claimant filed a motion to reconsider. On July 10, 2003, the circuit court denied claimant's motion. In doing so, the court stated that if it were required to award attorney fees in the amount of 20% of the arbitration award, "the court's conclusion would then necessarily be that the delay by respondent in paying the award was not sufficiently egregious to constitute a refusal to pay the award."

On September 3, 2003, claimant filed a rule to show cause regarding employer's failure to submit an order consistent with the circuit court's April 30, 2003, memorandum of decision. On January 8, 2004, the court denied claimant's motion, finding that because of its July 10, 2003, ruling on claimant's motion to reconsider, employer was no longer required to file an order consistent with the court's original April 30, 2003, decision. The court found its July 10, 2003, decision to be a final order for the purposes of appeal. On January 15, 2004, claimant filed a notice of appeal from the court's April 30, 2003, July 10, 2003, and January 8, 2004, decisions. On December 1, 2004, this court dismissed claimant's appeal, holding the circuit court's April 30, 2003, decision was not a final appealable order and remanding the case, directing employer to submit a final order to the circuit court consistent with its April 30, 2003, decision. Radosevich v. Roman Catholic Diocese of Springfield, Illinois, No. 4-04-0038 (December 1, 2004) (unpublished order under Supreme Court Rule 23).

On remand, Judge Mitchell (Judge Carmody had since retired) entered a memorandum of decision, finding Judge Carmody's decision awarding claimant $6,000 in attorney fees was not erroneous and no additional facts justified amending Judge Carmody's decision. Judge Mitchell found section 19(g) of the Act did not mandate an award of 20% attorney fees but rather "reasonable" attorney fees. The court awarded claimant $6,000 in attorney fees and $847.70 in interest pursuant to section 19(n) of the Act. Employer submitted an order consistent with this memorandum of decision, and the court signed it on May 5, 2005. This appeal followed.

We first address employer's motion to supplement the record on appeal or, in the alternative, motion to strike, which was ordered taken with the case. Employer seeks to supplement the record with a letter from its insurance company. Supreme Court Rule 329 provides that a party may supplement the record on appeal to include omissions, correct errors, and settle controversies as to whether the record accurately reflects what occurred in the trial court. 134 Ill. 2d R. 329. However, a party may only supplement documents that were actually before the circuit court. Anderson v. Financial Matters, Inc., 285 Ill. App. 3d 123, 130, 672 N.E.2d 1261, 1266 (1996).

Employer admits the letter it wishes to submit was not before the circuit court. Therefore, its motion to supplement the record on appeal is denied.

In the alternative, employer wishes to strike portions of claimant's brief, which states that employer has not paid interest on the arbitration award. "'T]he striking of an appellate brief, in whole or in part, is a harsh sanction and is appropriate only when the alleged violations of procedural rules interfere with or preclude review.'" In re Detention of Powell, 217 Ill. 2d 123, 132, 839 N.E.2d 1008, 1013 (2005), quoting Moomaw v. Mentor H/S, Inc., 313 Ill. App. 3d 1031, 1035, 731 N.E.2d 816, 820 (2000). In this case, the portions of claimant's brief of which employer complains do not preclude or hinder our review of this matter. Therefore, we deny employer's motion to strike.

We next address employer's cross-appeal. Employer argues the circuit court erred in finding employer refused to pay the arbitration award. We disagree.

As an initial matter, claimant did not file an appellee brief with respect to this issue. Supreme Court Rule 352 prohibits a party from presenting an oral argument unless he or she has filed a brief. 155 Ill. 2d R. 352(a). Further, unless justice so requires, a court of review should neither be compelled to serve as an advocate for the appellee nor be required to search the record for the purpose of sustaining the judgment of the circuit court. First Capitol Mortgage Corp. v. Talandis Construction Corp., 63 Ill. 2d 128, 133, 345 N.E.2d 493, 495 (1976). A reviewing court should decide the merits of the appeal if the record is simple and the claimed errors are such that the court can easily decide them without the aid of an appellee's brief. First Capitol Mortgage Corp., 63 Ill. 2d at 133, 345 N.E.2d at 495. However, if the appellant's brief presents prima facie reversible error and the contentions of the brief find support in the record, the circuit court's judgment may be reversed. First Capitol Mortgage Corp., 63 Ill. 2d at 133, 345 N.E.2d at 495.

Section 19(g) of the Act reads in pertinent part as follows:

"Except in the case of a claim against the State of Illinois, either party may present a certified copy of the award of the Arbitrator, or a certified copy of the decision of the Commission when the same has become final, when no proceedings for review are pending, providing for the payment of compensation according to this Act, to the Circuit Court of the county in which such accident occurred or either of the parties are residents, whereupon the court shall enter a judgment in accordance therewith. In a case where the employer refuses to pay compensation according to such final award or such final decision upon which such judgment is entered the court shall in entering judgment thereon, tax as costs against him the reasonable costs and attorneys fees in the arbitration proceedings and in the court entering the judgment for the person in whose favor the judgment is entered, which judgment and costs taxed as therein provided shall, until and unless set aside, have the same effect as though duly entered in an action duly tried and determined by the court, and shall with like effect, be entered and docketed." 820 ILCS 305/19(g) (West 2002).

Attorney fees and costs will not be awarded unless a refusal to pay due compensation is demonstrated. Ponthieux v. Fernandes, 278 Ill. App. 3d 104, 109, 662 N.E.2d 169, 172 (1996).

Whether an employer has refused to pay an arbitration award is a question of fact. Factual determinations made by the circuit court will not be overturned unless against the manifest weight of the evidence. See Armour Swift-Eckrich v. Industrial Comm'n, 355 Ill. App. 3d 708, 711, 823 N.E.2d 1103, 1105 (2005) (whether the employer acted unreasonably or vexatiously is a question of fact to be determined by the Industrial Commission (Commission) and will not be overturned unless against the manifest weight of the evidence); Farris v. Industrial Comm'n, 357 Ill. App. 3d 525, 527, 829 N.E.2d 372, 374 (2005) (wage determination is a factual determination and will be upheld on appeal unless against the manifest weight of the evidence); USF Holland, Inc. v. Industrial Comm'n, 357 Ill. App. 3d 798, 802, 829 N.E.2d 810, 815 (2005) (whether the claimant's injury arose out of or in the course of employment is a question of fact and will not be overturned unless against the manifest weight of the evidence). For a finding to be against the manifest weight of the evidence, an opposite conclusion must be clearly apparent. USF Holland, Inc., 357 Ill. App. 3d at 802, 829 N.E.2d at 815.

In determining whether there has been a refusal to pay, a circuit court may consider, among other things, (1) whether a demand was made for payment, (2) the length of time that transpired between the date the Commission's decision became final and the filing of the section 19(g) application, (3) the negotiations and communications between the parties that took place during this period, (4) whether the Commission's decision leaves room for good-faith disagreement as to the amount of the payments owed, and (5) whether and when a good-faith offer of settlement was presented. McGee v. Ractian Construction Co., 231 Ill. App. 3d 929, 935, 596 N.E.2d 1261, 1265 (1992).

In this case, the arbitration decision was entered on September 17, 2002. Claimant received her copy of the decision a few days later, and employer received its copy on October 15, 2002. Neither party petitioned for review, and the arbitrator's decision became that of the Commission on November 14, 2002. See 820 ILCS 305/19(b) (West 2002).

On December 13, 2002, claimant filed a section 19(g) application, seeking attorney fees and costs associated with the arbitration hearing and circuit-court proceedings. A hearing was held on claimant's section 19(g) application on January 2, 2003. That same day, after the hearing, claimant received a check from employer in the amount of $34,720, the total amount due for maintenance afforded claimant from May 17, 2000, through September 5, 2002. On January 3, 2003, claimant received three checks from employer in the amounts of $39,897.08 (total amount due for PTD, representing the period from May 17, 2000, through September 5, 2002), $5,313.28 (payment for 16 weeks of PTD, representing the period from September 5, 2002, through December 1, 2002) and $4,550 (total amount due for TTD, representing the period from August 31, 1999, through May 17, 2000). On January 10, employer issued two checks to ...


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