STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

ERNEST D HOLLINS, Applicant

LENNYS GLASS, Employer

AETNA CASUALTY & SURETY, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 88059699

An administrative law judge (ALJ) for the Workers' Compensation Division of the Department of Industry, Labor and Human Relations issued a decision in this matter. A timely petition for review was filed.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission agrees with the decision of the ALJ, and it adopts the findings and order in that decision as its own.

ORDER

The decision of the administrative law judge is affirmed.

Dated and mailed April 5, 1995
hollier.wsd : 132 : 8 ND § 1.5

/s/ Pamela I. Anderson, Chairman

/s/ Richard T. Kreul, Commissioner

/s/ James R. Meier, Commissioner

MEMORANDUM OPINION

The applicant has petitioned for commission review of the administrative law judge's decision which dismissed the application as it relates to a dispute over attorneys' fees. Evidence presented indicates that although Attorney Steinberg did attempt to obtain a fee in excess of 20 percent, he did not actually retain a fee in excess of the amount permitted under law. Further, Attorney Steinberg is no longer attempting to collect further fees, has cleared applicant's credit record and vacated the judgment against the applicant. Given these facts, there is no longer a dispute regarding attorneys fees over which the commission or department would have jurisdiction in a worker's compensation hearing and appeal forum. While the applicant seeks the assessment of forfeitures against Attorney Steinberg, sec. 102.26 (4), Stats., does not vest the commission with the authority to order Attorney Steinberg to pay such forfeiture nor the authority to direct payment of any amount recovered to the applicant. Rather, the procedure for enforcing sec. 102.26 (4), Stats., is an action in debt by the state initiated upon complaint of the department. Further, sec. 102.26 (4), Stats., indicates that the court shall direct payment to the injured party in the amount of the overcharge. Review by the commission is not an action in debt nor does the commission constitute a court. The commission does not have the authority to order, or direct payment of, a forfeiture based on a violation of sec. 102.26 (4), Stats.

There is no longer a dispute over attorneys' fees as any dispute has been resolved by Attorney Steinberg's actions. Accordingly, the administrative law judge appropriately dismissed the application in this matter.

For the above reasons, and reasons set forth in the administrative law judge's Findings and Interlocutory Order, the commission affirms such Findings and Interlocutory Order.

cc: ATTORNEY GERALD J FLOOD

ATTORNEY RICHARD J STEINBERG
STEINBERG LAW OFFICES SC

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