{ "id": 3950557, "name": "ANGEL ALVARADO, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Goldstein, Fishman, Bender and Romanoff, Appellee)", "name_abbreviation": "Alvarado v. Industrial Commission", "decision_date": "2004-03-03", "docket_number": "No. 1-02-2832WC", "first_page": "352", "last_page": "358", "citations": [ { "type": "official", "cite": "347 Ill. App. 3d 352" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "335 Ill. App. 3d 340", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 637082 ], "year": 2002, "pin_cites": [ { "page": "343" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/335/0340-01" ] }, { "cite": "285 Ill. App. 3d 105", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1295545 ], "year": 1996, "pin_cites": [ { "page": "111" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/285/0105-01" ] }, { "cite": "375 Ill. 462", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2536627 ], "weight": 2, "year": 1941, "pin_cites": [ { "page": "469" }, { "page": "469" } ], "opinion_index": 0, "case_paths": [ "/ill/375/0462-01" ] }, { "cite": "201 Ill. 2d 160", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 1477052 ], "year": 2002, "pin_cites": [ { "page": "170" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/201/0160-01" ] }, { "cite": "283 Ill. App. 3d 295", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 182700 ], "weight": 8, "year": 1996, "pin_cites": [ { "page": "296-97" }, { "page": "298" }, { "page": "298" }, { "page": "298" }, { "page": "298-99" }, { "page": "298" }, { "page": "299-300" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/283/0295-01" ] } ], "analysis": { "cardinality": 638, "char_count": 15040, "ocr_confidence": 0.77, "pagerank": { "raw": 1.0189641752386648e-07, "percentile": 0.5445265341724557 }, "sha256": "12c55b0f296fddfb4f0abe1030ff56a821e6088846986b9967dbe47916f864bd", "simhash": "1:fcfa8587075138fb", "word_count": 2369 }, "last_updated": "2023-07-14T18:28:47.759631+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "HOFFMAN and GOLDENHERSH, JJ., concur.", "HOLDRIDGE, J., joins in this dissent." ], "parties": [ "ANGEL ALVARADO, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Goldstein, Fishman, Bender and Romanoff, Appellee)." ], "opinions": [ { "text": "JUSTICE CALLUM\ndelivered the opinion of the court:\nI. INTRODUCTION\nIn 1996, the law firm of Goldstein, Fishman, Bender & Romanoff (Goldstein) filed on behalf of claimant, Angel Alvarado, an application for adjustment of his claim under the Workers\u2019 Compensation Act (Act) (820 ILCS 305/1 et seq. (West 2002)). Claimant discharged Gold-stein and hired Ribbeck Maravi, EC. (Ribbeck Maravi). In 1999, Rib-beck Maravi filed a second application for adjustment of claim for the same injury that was the subject of the 1996 application. The 1996 case was voluntarily dismissed, and the parties settled the 1999 case. Five months after the arbitrator approved the settlement, Goldstein petitioned for attorney fees. The Industrial Commission (Commission) awarded Goldstein attorney fees, and the trial court confirmed the award. On appeal, claimant argues that the Commission did not have the authority to reopen the case and award attorney fees to claimant\u2019s former attorneys five months after the lump-sum settlement between claimant and his employer was approved. We agree and therefore vacate the award of fees to Goldstein.\nII. BACKGROUND\nOn August 19, 1996, claimant was injured while working for employer, Central Die Casting. On December 19, 1996, Goldstein filed on claimant\u2019s behalf an application for adjustment of claim. On August 15, 1997, Goldstein withdrew its appearance, and Ribbeck Maravi was substituted as claimant\u2019s attorney of record. On October 31, 1997, Goldstein petitioned for attorney fees for time it spent on claimant\u2019s case through August 14, 1997. The arbitrator continued the petition and on January 5, 1998, ordered the parties to notify Goldstein of the settlement or resolution of the claim and ordered employer not to issue any drafts until Goldstein\u2019s fee petition was resolved.\nOn August 11, 1999, Ribbeck Maravi filed a second application for adjustment of claim for the same injury that was the subject of the 1996 application. The 1999 application stated that claimant had not filed any prior applications. The attorney representation agreement submitted with the application in the 1999 case was dated March 31, 1997. Both cases were consolidated.\nOn January 17, 2001, the arbitrator granted claimant\u2019s motion to voluntarily dismiss the 1996 case. Shortly thereafter, the parties settled the 1999 case. The record does not contain the full settlement agreement or the order approving the agreement. The parties and the Commission represent that on February 13, 2001, claimant signed a lump-sum settlement agreement. On March 14, 2001, the arbitrator approved the settlement and awarded Ribbeck Maravi $19,413.33 in attorney fees. There is no dispute that Goldstein did not receive notice of the settlement.\nOn August 9, 2001, Goldstein again petitioned for attorney fees. During the hearing on Goldstein\u2019s petition, claimant and his attorneys objected to the Commission\u2019s jurisdiction to hear the petition on the ground that it was filed several months after the claim was resolved. On January 8, 2002, the Commission granted the petition and awarded Goldstein $1,350. In finding that it had jurisdiction to hear the petition, the Commission reasoned that the 1999 case was in all material respects identical to the 1996 case. Goldstein protected its claim for fees by timely presenting it to the arbitrator in December 1997. The dismissal of the 1996 case was a mere technicality that could not defeat the Commission\u2019s jurisdiction to resolve the fee dispute. Moreover, the Commission found that claimant and his current attorneys were estopped from asserting that the fee petition was barred. The Commission noted first that claimant\u2019s representation agreement with Ribbeck Maravi was dated March 31, 1997, and Goldstein apparently continued to work on claimant\u2019s case until August 1997. Second, the 1999 application incorrectly stated that no prior application h\u00e1d been filed. Third, when they presented the motion to voluntarily dismiss the 1996 case, claimant and his attorneys failed to remind the arbitrator of the pending fee petition. According to the Commission, these facts suggested that claimant and his attorneys were deliberately attempting to avoid claimant\u2019s obligations to claimant\u2019s former attorneys. The Commission referred the matter to the Attorney Registration and Disciplinary Commission to investigate whether claimant\u2019s current attorneys violated Rule 1.2 of the Rules of Professional Conduct (134 Ill. 2d R. 1.2).\nClaimant sought judicial review, and the trial court confirmed the Commission\u2019s decision. Claimant timely appealed.\nIII. DISCUSSION\nOn appeal, claimant argues that the Commission lacked jurisdiction to reopen its final decision and award Goldstein attorney fees several months after the settlement was approved. He asserts that Hoshor v. Industrial Comm\u2019n, 283 Ill. App. 3d 295 (1996), is directly on point. In Hoshor, the law firm Kanoski & Associates (Kanoski) filed an application for adjustment of claim on the claimant\u2019s behalf. A few months later, the attorney handling the claimant\u2019s case, Ms. Hayes, left Kanoski to start her own practice. A Kanoski attorney, Mr. Apfelbaum, took over the case and on March 24, 1992, obtained an initial settlement offer of $4,405. On March 31, 1992, Hayes advised Kanoski that the claimant had retained her and that she would agree to a fee-sharing arrangement. On May 26, 1992, the claimant advised Apfelbaum that Hayes had obtained a settlement offer of more than $5,000. On May 28, 1992, Apfelbaum telephoned the employer\u2019s insurance carrier to confirm the offer. During the conversation, the adjuster raised the offer to $6,500. Apfelbaum advised the claimant, who authorized Apfelbaum to settle for that amount. The claimant later told Apfelbaum that she wanted Hayes to complete the settlement. On June 7, 1992, the parties filed an attorney substitution form with the Commission. Hayes prepared the settlement papers showing $6,500, less $975 in attorney fees. The Commission approved the settlement in July 1992. In March 1993, Kanoski petitioned for attorney fees. After a hearing, the Commission ordered Hays to pay Kanoski $881. Hoshor, 283 Ill. App. 3d at 296-97.\nThe Hoshor court noted that the Commission\u2019s approval of a settlement, along with the attorney fees provision, has the same legal effect as an award. Like any Commission award, an approved settlement becomes final unless a petition for review is filed within 20 days pursuant to section 19(f)(1) of the Act (820 ILCS 305/19(f)(l) (West 2002)). Hoshor, 283 Ill. App. 3d at 298. According to the court, the Commission\u2019s jurisdiction and powers are limited to those provided by statute. Hoshor, 283 Ill. App. 3d at 298. See also Daniels v. Industrial Comm\u2019n, 201 Ill. 2d 160, 170 (2002).\nAccording to the court, only two provisions of the Act grant the Commission power to reopen or modify a final decision. Section 19(h) provides that a change in the claimant\u2019s condition or disability allows the Commission to reopen or modify an award. 820 ILCS 305/19(h) (West 2002). This section is strictly limited to review for a change in the nature of the disability and does not contemplate reopening to consider attorney fees. Hoshor, 283 Ill. App. 3d at 298. Section 19(f) provides that, within 15 days after receiving the award or decision on review, a party may move to correct clerical or computational errors. 820 ILCS 305/19(f) (West 2002). Section 19(f) is not, however, a proper vehicle for a rehearing or reconsideration of the merits of the case. Hoshor, 283 Ill. App. 3d at 298-99. Because the Act contains no provision for reopening or modifying a final decision to revisit the issue of attorney fees, the Commission lacked jurisdiction to reopen the award and apportion attorney fees in a manner inconsistent with the original decision. Hoshor, 283 Ill. App. 3d at 298.\nWe see no basis for distinguishing Hoshor. It is true that the former attorneys in Hoshor did not present their first fee petition until several months after the Commission approved the settlement agreement. Here, in contrast, Goldstein first presented its claim for fees in October 1997, almost 2V2 years before the settlement was approved. This petition was presented in connection with the 1996 case, which claimant voluntarily dismissed before the 1999 case settled. Although the Commission found that the dismissal of the 1996 case was a mere technicality that did not defeat its jurisdiction to resolve the fee dispute, the fact remains that the settlement purports to resolve all issues in the case, including attorney fees. Thus, under Hoshor, the approval of the settlement had the same effect as a final award.\nThe Hoshor court stated that \u201c[o]ur decision is limited to the facts of this case, where there is no claim of fraud and it is apparent that Kanoski sat on its hands, knowing settlement was approaching and would be completed by another attorney.\u201d Hoshor, 283 Ill. App. 3d at 299-300. Thus, it appears that Hoshor recognized an exception in cases of fraud. Further analysis reveals, however, that fraud is not a basis for extending the Commission\u2019s jurisdiction.\nUnless a party petitions for review within 30 days after receiving an arbitrator\u2019s decision, the arbitrator\u2019s decision becomes the decision of the Commission. 820 ILCS 305/19(b) (West 2002). A party must commence a proceeding for judicial review within 20 days of receiving notice of the Commission\u2019s decision. 820 ILCS 305/19(f)(l) (West 2002). \u201cThe decision of the Commission *** shall, in the absence of fraud, be conclusive unless reviewed as\u201d provided in section 19(f)(1). (Emphasis added.) 820 ILCS 305/19(f) (West 2002). Our supreme court has held that the \u201cin the absence of fraud\u201d language does not confer jurisdiction on the Commission to reopen and set aside a lump-sum settlement. Michelson v. Industrial Comm\u2019n, 375 Ill. 462, 469 (1941). The statute does state, however, that fraud is a basis upon which to reexamine a Commission decision, and a party may maintain an action in equity to procure relief from a Commission decision procured through fraud. Michelson, 375 Ill. at 469; Roadside Auto Body, Inc. v. Miller, 285 Ill. App. 3d 105, 111 (1996).\nAccordingly, the approval of the settlement was a final decision, and there was no basis for the Commission to reopen that decision. The Commission reasoned that claimant and his attorneys were estopped from asserting that the fee petition was barred. This was not a valid basis for reopening the decision, however. Subject matter jurisdiction cannot be waived, stipulated or consented to, or conferred by estoppel. Jones v. Industrial Comm\u2019n, 335 Ill. App. 3d 340, 343 (2002). Our research has uncovered no decision holding that fraud is a sufficient basis for extending the subject matter jurisdiction of an administrative agency. The appropriate method for seeking relief under the circumstances here is an equitable action to set aside the Commission\u2019s judgment as based on fraud.\nThe Commission\u2019s frustration with claimant\u2019s current attorneys, who disregarded the arbitrator\u2019s order to notify the former attorneys of the settlement or resolution of the claim, certainly is understandable. Nevertheless, established precedent dictates the result we reach here.\nW. CONCLUSION\nWe reverse the judgment of the circuit court of Cook County and vacate the Commission\u2019s award of attorney fees to Goldstein.\nReversed; Commission decision vacated in part.\nHOFFMAN and GOLDENHERSH, JJ., concur.", "type": "majority", "author": "JUSTICE CALLUM" }, { "text": "PRESIDING JUSTICE McCULLOUGH,\ndissenting:\nI respectfully dissent. The Commission in its decision found:\n\u201cThe Commission further finds that it has continuing jurisdiction to hear and decide a timely filed Petition to apportion fees under \u00a7 16(a) of the Act. Here, Goldstein, Fishman and Romanoff filed their Petition for Fees immediately after their discharge by Petitioner and while the claim in 96WC66576 was still pending before the Arbitrator. They took the steps necessary to protect their claim by bringing it before Arbitrator Reichart December 2, 1997, when it was continued, and again on December 5, 1998, when Arbitrator Reichart entered an order directing that no payment be made on the claim without notice to Goldstein, Fishman, Bender and Romanoff. It is not unusual for a case to remain pending before the Commission for years before settlement or a final decision is made. Fees between successive claimant attorneys cannot be assessed until the case ends because they are paid on a contingent basis. Nonetheless, the Commission\u2019s jurisdiction is continuing under the Act.\n*** The Commission notes that Petitioner signed a Representation Agreement with Ribbeck Maravi on March 31, 1997 when he was already represented by Goldstein, Fishman, Bender and Romanoff. *** Petitioner did not tell his former attorney that he had sought other counsel, instead, Goldstein, Fishman, Bender and Romanoff learned from Respondent that a new attorney had been retained. *** On the second application, Petitioner denied that a prior application had been filed, a representation which was false. In December, 2000, Petitioner signed a motion to dismiss his first application. When he presented this Motion to Arbitrator Reichart in January, 2001, he apparently failed to remind the Arbitrator of the pending fee petition, despite the Arbitrator\u2019s order of December 5, 1998. On[e] month later Petitioner signed the settlement contract which was presented to the Arbitrator in March, 2001. Throughout this period Petitioner knew that his former attorney had an unresolved claim for attorneys\u2019 fees and that Arbitrator Reichart had entered an order specifically requiring that Petitioner\u2019s former attorney be informed of any settlement. These facts suggest that Petitioner was deliberately attempting to avoid his obligations to his prior attorney by filing a new Application for Adjustment of Claim and dismissing his first claim.\u201d\nSupport for jurisdiction of the Commission is also found in the Administrative Code, section 7080.10. 50 Ill. Adm. Code \u00a7 7080.10(a)(1) (2003). Section 7080.10(a)(1) provides in substance that when a dispute has arisen between the claimant and his former attorney concerning the payment of fees, the petitioner or his attorney or former attorney may file with the Commission a petition to fix fees setting forth the facts surrounding the dispute and the relief requested. I also note that the referral to ARDC by the Commission falls within its power under section 7090.10(c) (50 Ill. Adm. Code \u00a7 7090.10(c) (2003)).\nThe Commission was properly authorized to enter the order for compensation.\nHOLDRIDGE, J., joins in this dissent.", "type": "dissent", "author": "PRESIDING JUSTICE McCULLOUGH," } ], "attorneys": [ "Monica Ribbeck Kelly, of Chicago, for appellant.", "Richard H. Victor, of Goldstein, Fishman, Bender & Romanoff, of Chicago, for appellee." ], "corrections": "", "head_matter": "ANGEL ALVARADO, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Goldstein, Fishman, Bender and Romanoff, Appellee).\nFirst District (Industrial Commission Division)\nNo. 1\u201402\u20142832WC\nOpinion filed March 3, 2004.\nRehearing denied April 9, 2004.\nMonica Ribbeck Kelly, of Chicago, for appellant.\nRichard H. Victor, of Goldstein, Fishman, Bender & Romanoff, of Chicago, for appellee." }, "file_name": "0352-01", "first_page_order": 370, "last_page_order": 376 }