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

MARK BECKMAN, Applicant

SUPERIOR SUPPLY CO INC, Employer

INDIANA INSURANCE CO, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 2009-026763


On July 18, 2011, an administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development issued an order approving a compromise in this matter, which divided the attorney fees due the applicant's attorney evenly between Monika A. Hartl and Robert Menard. By order dated August 2, 2011, the ALJ amended her order to award all the fees to Ms. Hartl. Mr. Menard's law firm, Derzon & Menard, subsequently filed a timely petition for commission review of the amended order approving the compromise.

The commission notes first that this petition arises directly from an order approving a compromise, not an appeal of an order dealing with a request to reopen a compromise. More significantly, this petition raises only the issue of the division of attorney fees.

The commission has consistently declined to take jurisdiction of fee-only disputes raised by an applicant's attorney. See: Roman Gabrielson v. J H Findorff & Son, WC claim no. 1997025346 (LIRC Jan. 28, 2000); Donohoe v. Green Bay Packers, WC claim no. 87-041220 (LIRC Dec. 11, 1989); Boesharr v. Jeff's Fast Freight, WC claim no. 2002-027635 (LIRC Feb. 12, 2004). Specifically, the commission has held it does not have jurisdiction in attorney fee-only disputes, noting that its review authority on petitions under Wis. Stat. § 102.18(3) is limited to decisions that award or deny compensation and that an attorney fee generally is not "compensation" for the purposes of Wis. Stat. ch. 102. See: Eisenberg v. ILHR Department, 59 Wis. 2d 98, 105 (1973); Cranston v. Industrial Commission, 246 Wis. 287, 289 (1944). See also: Neal & Danas, Workers Compensation Handbook § 1.5 (6th ed. 2010). Derzon & Menard argues that it is nonetheless a "party aggrieved" as that term is used in Wis. Stat. § 102.23(1), the statute providing for judicial review of commission orders. However, the courts have previously held an attorney is not an aggrieved party in this situation. Eisenberg v. ILHR Department, 59 Wis. 2d 98, 105 (1973).

The commission has, on limited occasions, taken fee disputes when the effect of the ALJ's order was to make the insurer pay more compensation, rather than merely working out a division of the insurer's liability between the applicant and his or her attorney. See Binsfeld v. Jones Sign Co., WC claim no. 1998-044724 (LIRC Sep. 16, 2010). However, this is not such a case. Here the dispute is not even between the applicant and his attorney, but between the attorney representing him at the time of the compromise and her former law firm.

Derzon & Menard also raises Wis. Stat. § 102.18(4)(c), which allows the commission to set aside a decision within a year if there has been newly discovered evidence or a mistake of fact or law. The commission used that statute to address a fee-only dispute in Mack v. K-Mart Corp., WC claim no. 2007-003124 (LIRC March 20, 2008) where the commission inadvertently ordered payment of the fees to the respondent's attorney rather than the applicant's attorney. The commission issued an order under § 108.18(4)(c) to correct what was clearly a mistake in fact.

Here, Derzon & Menard argues that the ALJ mistakenly amended her order to eliminate the fee split--thus proving a mistake of fact or law. However, the facts and law are disputed in this case. As Derzon & Menard recognizes, its petition raises a contract dispute that should be resolved in circuit court. The only difference that ALJ Lake's decision makes is that Attorney Hartl, rather than Derzon & Menard, has the money while that dispute goes forward. That does not change the fundamental nature of the dispute as a contract issue between non-parties that is not within the jurisdiction of the commission.

Consequently, the petition for review shall be dismissed.

ORDER

The petition for review is dismissed.


Dated and mailed
February 29, 2012
beckman.wrr:101:9 ND6 1.5, 10.2

 

BY THE COMMISSION:

/s/ Robert Glaser, Chairperson

/s/ Ann L. Crump, Commissioner

/s/ Laurie R. McCallum, Commissioner

 

cc: Attorney Monika A. Hartl
Attorney Peter M. Silver
Attorney Peggy E. Van Horn
Attorney Robert C. Menard


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