*1 PRESTON, Appellant, ROBERT v. THE INDUSTRIAL COMMISSION al. et (Bell Trucking, Appellee). (Industrial Division) No. 3—01—0697WC

Opinion July *2 Greanias, Heights, appellant. Diane E. of Peoria Flannery, Culbertson, Peoria, appellee. Mark M. of Hinshaw & JUSTICE the opinion PRESIDING McCULLOUGH delivered the court: Preston from appeals Robert an order circuit County confirming Stark November decision of (Commission)

the Illinois Industrial Commission denying compensation claim for attorney and fees sections 19(k), (Act) (820 19(Z), Compensation and 16 the Workers’ Act (West 1998)). 305/19(k), 19(Z), respondent employer is Bell (1) Trucking. The issues are whether decision is Commission’s procedures employed right void because the violated claimant’s to due (2) process; denial of additional fees was invalid because did not have a suf- attorney (3) determination; record it to make that the Com- ficient before attorney mission’s denial of additional fees was manifest, weight to law or of the evidence. af- contrary We firm.

Claimant filed an This attorney subsequent the arbitrator’s same fees 19(g) proceeding, arbitrator’s award was the of a section Appellate in a underlying the relevant facts set out Court decision case. Bell Trucking, Preston v. 660-61, 19(g) proceed In the

ing, judgment claimant was awarded on the arbitrator’s award of $1,651.70 $74,144.64, attorney $14,828.93, arbitration fees of arbitra costs, fee, $6,406.25 filing 19(g) for the section 19(g) $71 fees, 19(g) costs and section 2—1303 interest $155.55 $5,886.16 January 1996, through December award, per day interest and section sanctions are $18.28 until paid court af opinion April in full. 19(g) proceeding, firmed the trial in the section court’s “[bjecause pay refused to specifically finding that defendant months, plaintiff of the Commission for over nine award Preston, costs.” entitled reasonable fees and *3 662, court, filed appellate 693 N.E.2d at 508. the claimant also 375(b) (155 Supreme a motion for to Court Rule sanctions 375(b)) 6,May 1998, appellate the court denied on Ill. 2d R. on that 21, May 1998. party the Act obtain a provides decision of the

judgment based on a final award of an arbitrator or pending.” review are ILCS proceedings Commission “when no (West 1998). the The not disclose that Commis 305/19(g) record does petition for respondent employer’s action on sion took further review. case, Respondent the facts. following

In this the Commission found hand to a check for the arbitrator’s award employer delivered claimant owing sums on upon and interest conditioned full satisfaction of all 9, 1996, rejected 6, 1996, the and on December claimant December 19(g) proceeding in the section tender. The circuit court’s decision appellate the court’s decision rendered on 1996. After December filed the on with 19(g) proceeding, May the claimant section under petition for additional Commission an amended 19(k) On 16 of the Act. October attorney fees under section section compensation under petition filed a claimant 19(Z) filed another claimant the On October Act. July expenses. medical On nonpayment on petition based petitions. Claim- respondent employer response filed supplemental argument September filed a ant petition for additional The denied claimant’s Commission 19(k) fees under section compensation under section reasonably it had employer believed respondent Commission. The also pending valid before review request for sanctions court’s denial of found that 375(b) raised finding that the issues implicit under Rule included taken appeal not frivolous and appeal Preston were delay respondent employer’s The found that good faith. vexatious, unreasonable, paying the arbitrator’s award was improper deliberate, purpose. of bad faith or an result claim Commission also denied the 19(Z) 19, 1998, was time- because the filed October

barred, having years filed within after the arbitrator’s been two cited 13—202 of the Code Civil (735 1992)) (Code) Blacke v. Procedure 5/13—202 Comm’n, Industrial appeal, concerning In this claimant raises issues Douglas E handling of her to disqualify Commissioners Gilgis Stevenson and Richard M. filed June 1998. Commissioner ad- Gilgis assigned was not to this did not and the Commission An Gilgis. the motion disqualify dress to relative to Commissioner hearing evidentiary presided was conducted on December over hearing, Commissioner Stevenson. Prior to that setting hearing ground motion to vacate the order on the authority evidentiary hearing. Commission had no conduct an hearing The Commission conducted the denied claimant’s to disqualify February order Commissioner Stevenson entered appeal petitions disqualify 1999. The record contains other transcripts relative to those in other cases before attorney sought disqualify Commission wherein claimant’s commis- Those sioners. records were before the Commission at the disqualify in this case. argues of additional Commission’s denial fees is void because of Stevenson’s *4 entered

participation, contending that the in case was decision Comm’n, this statutory authority. without v. Industrial Siddens for ad- recognized can entertain a unreason- alleged ditional fees based on v. delay payment able and vexatious of an award. See Siddens 712 (1999). Comm’n, 506, 513, 18, App.

Industrial 304 Ill. 3d 711 N.E.2d 23 Claimant further contends not Commission does have the authority statutory process. act violation of due 19 entry Act by does authorize the of a decision process. Comm’n, violation of due Interstate Contractors v. Industrial 81 Ill. (1980); 2d 410 N.E.2d 839 v. Goiter Industrial Comm’n, (1987). App. 152 Ill. 3d 504 N.E.2d 1279 argues there was violation of his right process due because Commissioner disqualified. Stevenson was not The parties agree that the Act provide procedure employed by the i.e., evidentiary on a motion to prior disqualify filed proceeding. a Commission review Act purely remedy. is a statutory See v. Elles Industrial (1940). Comm’n, Ill. 375 30 N.E.2d 618 The Code and supreme apply court rules do not compensation proceed to workers’ ings the Act where or the Commission’s rules regulate area or topic. Technology Illinois Institute Research v. Institute Industrial (2000). Comm’n, App. 314 Ill. 3d 800 However, they may guidance be relied they without applicable to workers’ compensation proceedings. Mora v. Comm’n, Industrial 312 Ill. 3d

(2000) (discussing application adjustment amendment of an claim). a party requests argument

When oral in a Commission review such proceeding, argument is to be three panel heard commis comprised sioners of no more than one from the class employing class, employee one from the and a decision of the Commission to be 305/19(e) approved aby majority panel. 1998); of that (1999). Comm’n, Alexander v. Industrial rules commissioner require that an or arbitrator with a other any financial or interest the outcome of litigation ques shall participate adjudication connected therewith 7030.30(a) (1999). § 50 Ill. Adm. cause. Code The Commission’s rule gives examples then of when occur. disqualification should 7030.30(b) (1999). § If Adm. Code the arbitrator or commissioner disqualification, parties attorneys may discloses the basis for agree writing that the or commissioner’s interest is im arbitrator’s material, then the thereafter arbitrator commissioner 7030.30(c) (1999). participate proceeding. § 50 Ill. Adm. Code 7030.30(d) Otherwise, reassigned. § Ill. Adm. case is Code review, from a case on When commissioner withdraws representative replaced by commissioner is to be same 7030.30(d)(2) (1999). § statutorily designated class. 50 Ill. Adm. Code *5 of the class Here, sought disqualify employing to both claimant representatives on the Commission. do the provide Act and rules

The the Commission See right. of a as of substitution commissioner 5/2— 1001(a)(2) 2000) right). (providing judge for substitution of as of system. The has a There is adopted Commission substitution-for-cause conducting nothing prevents Act that the Commission hearing petition disqualification on a commissioner. Claimant by the in has not demonstrated an abuse of discretion Commission conducting his hearing petition disqualify on to commissioner 1001(a)(3)(iii) (West 2000). See Stevenson. 735 ILCS 5/2 — determined, history The Commission based on the of cases impartiality which the of employing-class claimant’s attacked presented, commissioners and the other evidence that there no was petition the disqualify merit to to commissioner Stevenson. In addi tion, provided hearing claimant no evidence at the before the Commis support Instead, sion allegation petition disqualify. to his of the the to argument relied on legal the that could hear evidence or rule on his allegation of fraud. The claimant’s petition was support not verified petition affidavit of the 1001(a)(3)(ii) (West was submitted See therewith. 735 ILCS 5/2 — 2000). Indeed, claimant to the argued Commission that the truth or falsity allegations petition of his to disqualify was irrelevant at disqualification stage proceedings.

Claimant failed to establish that commissioner Stevenson financially otherwise interested the outcome of the case. he Commission’s was not so interested was not weight the manifest of the evidence or an abuse of discretion. Claim- ant has failed to establish process a violation of due that would render nullity. the Commission’s decision a

Although handling we find no error in to disqualify reaching result, we are cognizant of the commissioners, fact that two subject neither of whom was the petition to disqualify, concurred in the denial of the to disqualify. future, In the suggest we that a on a disqualify a not be commissioner conducted before a commissioner who is the petition. of the further recommend We promulgate procedural commission rule handling to address the disqualify commissioners. summarily reject argument We that the record was not sufficient to enable the on Commission to rule the merits of his petition. decision specifically Commission’s found the when dates beginning relevant events occurred with when the arbitrator’s award argue does not filed with the Commission. not occur as by did chronology of events found how the argue explain that or found. Claimant compensation claim underlying worker’s relating documents Claim- this court or the Commission. material to the issues before the earlier documents identify how the absence of ant has failed to ability Commis- appeal negatively affects from the record decision; ability his prejudices a reasoned and fair sion to make ability to review or affects this court’s argue points appeal; his denying Commission’s decision court all arose the issues before this

fees. The facts relevant to the arbitrator’s award. subsequent denial of additional

The final issue is whether *6 contrary to law or attorney fees was compensation and issue, the claimant weight of the evidence. Within manifest a of contentions. presents number 19(7) penalties, section petition seeking

As to the amended two-year statute of limitations determined that a court has 1998)) (735 ap section 13—202 of the Code 5/13—202 19(k) and compensation under sections for additional plies 19(Z) 26. 644 N.E.2d at Claim Blacke, App. Ill. the Act. 268 dispute that the that. Claimant also dispute ant does not (Z) filed 19 under section compensation petition for additional January decision after the arbitrator’s years more than two of action for additional a cause Blache did not discuss when 1996. 19(k) 19(Z) and accrued. under sections compensation 19(Z) timely his argues that Claimant compensa for additional original petition it related back because petition was April 1996 1996. It is clear that April tion filed alleged facts that It could not have award. filed before the arbitrator’s such, April 1996 As subsequent to the arbitrator’s occurred allegations, factual to different petitions relate October and times. arising at different Whether i.e., of action separate two causes depends pleading to an earlier relates back pleading occur facts or out of the same pleading arises the later on whether v. News Bryson notice. See put as to the defendant rences so 107-08, N.E.2d 672 Publications, Inc., 174 Ill. 2d America 8,1, 664 N.E.2d Williams, App. Ill. 3d (1996); v. 279 Vincent 1222-23 624 Cueto, App. 253 Ill. 3d v. (1996), quoting Weber 655 that claim (1993). determination The Commission’s attorney fees and compensation to additional entitled ant was not weight manifest against case is not the facts of this under evidence. claimant was 19(g) proceeding,

Moreover, by instituting a section attorney fees pursuing precluded from 19(k) final award of a arbitrator’s and 16. existence sections 19(g) initiating a prerequisite or decision is a (West 1998). 305/19(g) action. 820 ILCS for additional acknowledges pending petition for review is to a equivalent fees of a the institution purpose preventing v. Cooksey, & Wire 19(g) Keystone action. See Steel (1992) lack of (finding a 592 N.E.2d 3d proceed instituting 19(g) the section jurisdiction). matter admission

ing, binding judicial made a that the Commission final, meaning decision was 19(g), seeks plaintiff fees was Under section pending. attorney fees

entry judgment ask for costs and of a upon proceedings arbitration method respondent pay compensation. refused to is a enforcing a Commission decision arbitrator’s award alternative 19(Z),19(k), sections enrolling decision an arbitrator’s purpose judgment as a to enable of the award

award is enforcement (see (West 2000)), including the col seq. courts et 5/12—101 (735 (West 2000)). lection of interest on ILCS 5/12—109 compensa The doctrine of remedies when applies election of double threatened, reliance on opposing party changes position is it, or applies, remedy res so that the election of deemed judicata Investments, remedy. abandonment of another Ltd. v. 450 East SJS Partnership, question

Whether an election of remedies has occurred is a of law. See *7 Investments, Here, SJS 597 N.E.2d at double was threatened. case, his remedy by proceeding

In this claimant elected under sec- tion 19(g) returning and was therefore foreclosed from to the Commis- attempt reopen sion in an an final Commission decision. It already is of unnecessary regarding law the discuss contentions judicata, estoppel. res and collateral shows that

Finally, we note that a review of the record this case appeal, relating 19(g), in this to section presented issues Supreme 19(k), fee sanctions Appellate Court Rule were issues discussed in the and in Trucking Court decision of Preston v. Bell a decision Illinois, Court, of Preston v. United States District Central Division (C.D. 2001). Bell No. 01—1101 Trucking, The order of the circuit County court of Stark confirming Commission’s decision is affirmed.

Affirmed.

HOFFMAN, RARICK, JJ., HOLDRIDGE and concur. O’MALLEY,dissenting: JUSTICE

The majority correctly states that the Civil Code of Procedure provide guidance as to how the Commission should address a motion for Code, substitution of a commissioner. Under judge substitution of a trial “by for cause is to judge be heard other (a)(3)(iii) than judge named in the petition.” 735 ILCS 5/2—1001 (West 2000). A provision governs similar for motions substitution 5(d) judge trial for cause in a criminal case. See 725 ILCS 5/114 — (West 2000) (“Upon filing of motion for [a cause] substitution for *** shall be a judge conducted not named in the motion ***”). My published research has authority uncovered in Illinois indicating proper procedure for the disposition of a for motion appellate supreme substitution of justice. Foreign jurisdic- tions are divided over whether judge may participate the determination of a against motion substitution filed him. 1980) Carlton, (Fla. Compare In re Estate 378 So. 2d (motion for disqualification appellate justice left “to the discretion 16.3(b) the justice sought to be with disqualified”), Tex. R. E (precluding appellate judge disposition participating motion him). disqualification I the impartiality believe of adjudication preserved adjudica- insures the fairness is not when the challenged impartiality tor whose himself he is decides whether impartial. I passing petition,

Without the form merit of claimant’s proper party conclude that a commissioner is to determine he, himself, whether should be removed from a workers’ panel case for cause. As Commissioner Stevenson on the that sat I would remand potential disqualification, of Stevenson’s by someone other the cause for a determination of claimant’s suggestion majority’s than Commissioner Stevenson. The to what as. future procedures the Commission should follow in the does Therefore, I remedy already that has occurred. dissent. prejudice