DAVID KELLEY, Applicant

RICK DREGNE BUILDERS, Employer

WIS WC UEF, Insurer

On February 23, 2001, Administrative Law Judge (ALJ) Roy L. Sass of the Worker's Compensation Division of the Department of Workforce Development ordered the employer and the Wisconsin Worker's Compensation Uninsured Employers Fund (UEF) to pay $832.01 in attorney fees to the applicant's attorney, after UEF had erroneously paid that amount to the applicant directly. ALJ Sass's order deals only with the entitlement of the applicant's attorney to a fee.

The commission's authority on review is limited to decisions that award or deny compensation. Wis. Stat. § 102.18(3). The commission traditionally treats petitions that raise only an issue as to the amount of the attorney fee as not arising from an order or decision that awards or denies compensation. Roman Gabrielson v. J H Findorff & Son, WC Claim No. 1997025346 (LIRC, January 28, 2000); Donohoe v. Green Bay Packers, WC Claim No. 87041220 (LIRC, December 11, 1989); Eisenberg v. ILHR Department, 59 Wis. 2d 98 (1973); Cranston v. Industrial Commission, 246 Wis. 287 (1944). See also Neal & Danas, Workers Compensation Handbook § 1.5 (4th ed. 1997). This is, in part, because an attorney fee is not "compensation" for the purposes of Wis. Stat. ch. 102. Cranston, at 246 Wis. 289; Eisenberg, at 59 Wis. 2d 105.

Because ALJ Sass ordered only repayment of an amount withheld for an attorney fee under Wis. Stat. § 102.26, but paid in error to another party, his order does not grant or deny compensation, and is not subject to review by the commission.

NOW, THEREFORE, the Labor and Industry Review Commission makes this

Dated and mailed June 22, 2001
kelleyd . wpr : 101 : 3 ND § 1.5

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

cc: 
Attorney Daniel J. Kelley
Attorney Michael C. Frohman

Appealed to Circuit Court.

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