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American Can Co. v. Industrial Com.

OPINION FILED OCTOBER 29, 1986.

AMERICAN CAN COMPANY, APPELLANT,

v.

THE INDUSTRIAL COMMISSION ET AL. (BEVERLY EDGIN, APPELLEE).



Appeal from the Circuit Court of Cook County; the Hon. Earl Arkiss, Judge, presiding.

JUSTICE BARRY DELIVERED THE OPINION OF THE COURT:

The circuit court granted the petitioner's, Beverly Edgin's, motion to quash the respondent's, American Can Company's, summons for review. The respondent appeals.

On April 18, 1981, the petitioner sustained work-related injuries. The petitioner sought benefits under the Workers' Compensation Act (the Act) (Ill. Rev. Stat. 1981, ch. 48, par. 138.1 et seq.). On April 5, 1983, an arbitrator awarded the petitioner $259.50 per week for 9 5/7 weeks temporary total incapacity and $259.50 per week for 152 3/4 weeks for the permanent and complete loss of use of 30% of her right arm and 35% of her left arm.

On March 13, 1985, the Industrial Commission affirmed the arbitrator's award, modifying the 9 5/7 weeks to 9 4/7 weeks. Bond was set at $39,700. On March 18, 1985, the petitioner filed a motion to recall the Commission's decision for failure to include an interest provision. On March 27, 1985, the respondent filed a summons for workers' compensation review and a bond of $39,700. On April 2, 1985, the petitioner filed a motion to quash, contesting the circuit court's jurisdiction.

On April 5, 1985, the Commission ordered the return of its decision. On May 10, 1985, the Commission issued a corrected decision, which included an interest provision. Bond remained at $39,700.

On May 23, 1985, the respondent filed a second summons for workers' compensation review. This summons was filed with the same circuit court case number as the first summons. While it stated that a bond for $39,700 had been filed and approved by the clerk, the only bond on file was the original one.

Thereafter, the petitioner filed an amended motion to quash the respondent's second summons. The circuit court, on September 19, 1985, granted the petitioner's motions to quash. The court found that the first summons was not based upon a final order and that the second summons did not comply with section 138.19(f) of the Act. (Ill. Rev. Stat. 1981, ch. 48, par. 138.19(f).) Specifically, the court stated that the respondent had had two forms of recourse for challenging the corrected decision. It could have filed a request for a new summons, or it could have asked the court for leave to amend the original summons and to permit the original bond to stand as security.

On September 25, 1985, the petitioner died from causes unrelated to her industrial accident. On October 15, 1985, the respondent filed its instant notice of appeal from the orders to quash.

The petitioner's spouse died on October 26, 1985. He was survived by the couple's only child (the son), who was fully emancipated. On December 20, 1985, the petitioner filed a motion with this court requesting the court to "spread of record" the deaths of the petitioner and her spouse, and requesting the court to substitute the son in his capacity as executor of the estate of the petitioner's spouse. This court granted the petitioner's motion on January 7, 1986.

On January 10, 1986, the respondent filed a motion to vacate the January 7 order. This court granted the respondent's motion. On January 16, 1986, the respondent filed an objection to the petitioner's motion to substitute, and argued that the award for a specific loss abated upon the death of the petitioner's spouse.

On January 31, 1986, the petitioner filed an amended motion to "spread of record" the deaths and to substitute the son in his capacity as executor of the petitioner's spouse's estate, or, in the alternative, to substitute him in his capacity as executor of the petitioner's estate. The respondent answered with its abatement argument.

• 1 The respondent first argues on appeal that the circuit court erred when it dismissed the respondent's appeal for lack of jurisdiction. In support of its argument, the respondent asserts that its first summons was proper since the Industrial Commission did not have jurisdiction to correct because it did not recall the decision within 15 days as required by PPG Industries, Inc. v. Industrial Com. (1982), 91 Ill.2d 438, 438 N.E.2d 173.

Section 19(f) of the Act (Ill. Rev. Stat. 1981, ch. 48, par. 138.19(f)), provides that the arbitrator or the Commission may on his or its own motion, or on the motion of either party, correct any clerical errors in computation within 15 days after the date of receipt of any award of such arbitrator or decision on review of the Commission. The PPG case, in interpreting section 19(f), states that the 15-day limitation applies to the time in which an original opinion must be recalled and not to the time in which the corrected decision must be issued. In PPG the arbitrator recalled his decision within 15 days of entering it. He then issued a corrected decision more than 15 days after entry of the original decision. The appellant argued that the arbitrator's corrected decision was void because it was not issued within 15 days from submission of the original decision. The PPG court disagreed and held that the arbitrator only had to recall his decision within 15 days.

We find that the PPG court's use of the word "recall" was limited to the facts of that case. The court was saying there that the initial step in recalling the decision, i.e., either the arbitrator's recalling the decision of his own volition or one of the parties' submitting its motion to correct, had to be done within 15 days. In the instant case, the petitioner filed her motion to correct within 15 days. Accordingly, we find that the Commission properly recalled its ...


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