Appeal from the Circuit Court of Cook County, the Hon. Richard
Curry, Judge, presiding.
MR. JUSTICE UNDERWOOD DELIVERED THE OPINION OF THE COURT:
Claimant, Thomas Cranfield, appeals from an order of the circuit court of Cook County confirming the Industrial Commission's decision denying the reinstatement of his case, which had been dismissed by the arbitrator for want of prosecution.
On March 24, 1976, claimant filed an application for adjustment of claim with the Industrial Commission for alleged injuries sustained while employed by Uniroyal Company. After having been assigned to an arbitrator, the case was set for hearing on five different dates. On the final date, September 15, 1977, claimant failed to appear and his counsel stated that he was unable to proceed. The arbitrator refused to grant another continuance and, after hearing argument on the employer's motion to dismiss for want of prosecution, dismissed the case by a written order dated September 23. The relevant argument there presented was as follows:
"MR. KRAUT: Well, I would respectfully request that the matter be continued. Mr. Cranfield is not here today and I am unable to proceed at this time. I certainly believe that if it were not for the fact that it was that this case traveled with the other case that there probably would be no question about a continuance; and the mere fact it happens to go along with another case shouldn't make any difference. And I think that the request should be granted, your Honor.
MR. VAN DRISKA: For the record, the respondent moved to dismiss the case for want of prosecution; and points out to the Industrial Commission that the respondent has been ready to proceed to trial in this case each and every time, and we are here today this afternoon with the understanding that we were to proceed to trial. We ask this case be dismissed for want of prosecution.
MR. KRAUT: I would just point out one other matter. For the record, I am Charles Kraut, co-counsel appearing with Joshua Landau in this matter. And again I say that if it was an independent case I feel there would be no question about the fact that we would get continuance and the fact it was allied with the other case really shouldn't make any difference.
THE ARBITRATOR: Well, counsel, I think that you have had ample opportunity to proceed in this case. The case will be dismissed. I'll write it in the form."
Notice of that decision was received by the parties on October 3.
On October 19 claimant filed a document, apparently a Commission form entitled "petition for review" and customarily used for the review of arbitrators' decisions. A hearing on that petition was set for five different dates. On the last of those dates, June 26, 1978, the Industrial Commission conducted a hearing and found that the petition for review had not been filed within 15 days after receipt of a copy of the arbitrator's decision as required by statute (Ill. Rev. Stat. 1969, ch. 48, par. 138.19(b)). However, the Commission concluded that the document filed by claimant was in substance a petition for reinstatement, and found satisfactory compliance with Rule No. 4-(1) of the rules governing practice before the Industrial Commission, which permits a petition for reinstatement to be filed within 60 days from receipt of the dismissal order. (Rules Governing Practice Before the Industrial Commission Under the Workmen's Compensation and Occupational Diseases Act sec. 4, Rule 4-(1) (1977).) After a hearing during which both parties presented argument, the Commission denied claimant's petition for reinstatement. The relevant portion of that argument follows:
"COMMISSIONER: * * * At this point, however, Mr. Kraut, please explain to me why you believe that the petition for reinstatement should be allowed?
MR. KRAUT: Because the first place, the matter was never heard on its merits.
When this matter came up, I explained to Mr. Cranfield, to Mr. Van Driska and to the Court that Mr. Landau, who originally filed this case and who was originally following the case, was handling it right along, and about that time Mr. Landau had become ill and he has since resigned. He hasn't resigned, but he no longer practices before the Commission here, I understand.
This hearing was at about the time when Mr. Landau was having problems and at that time he had just returned, was in the process of returning a large number of files to my office that I had referred to him.
For that reason, since I had relied upon him to notify Mr. Cranfield to be present on that date and apparently Mr. Cranfield was not notified and ...