Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

09/16/87 Oliver Mcgehee, v. the Industrial Commission

September 16, 1987

OLIVER MCGEHEE, APPELLANT

v.

THE INDUSTRIAL COMMISSION ET AL. (NORTHERN ILLINOIS GAS COMPANY, APPELLEE)



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT, INDUSTRIAL COMMISSION DIVISION

513 N.E.2d 1136, 160 Ill. App. 3d 618, 112 Ill. Dec. 527 1987.IL.1350

Appeal from the Circuit Court of Winnebago County; the Hon. David F. Smith, Judge, presiding.

APPELLATE Judges:

JUSTICE McCULLOUGH delivered the opinion of the court. BARRY, P.J., and KASSERMAN, McNAMARA, and WOODWARD, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MCCULLOUGH

The claimant, Oliver McGehee, filed an application for adjustment of claim pursuant to the Workers' Compensation Act (the Act) (Ill. Rev. Stat. 1983, ch. 48, par. 138.1 et seq.). The claimant sought to recover damages for alleged work-related injuries arising from his employment with Northern Illinois Gas Company (employer). The arbitrator denied the claimant's claim. The Industrial Commission (the Commission) affirmed. The claimant filed for a circuit court review of the Commission's decision. The circuit court subsequently granted the employer's motion to quash, finding that the court did not have jurisdiction to hear the cause as the claimant failed to comply with section 19(f)(1) of the Act. (Ill. Rev. Stat. 1983, ch. 48, par. 138.19(f)(1).) The claimant brings this appeal. We affirm.

On May 4, 1981, the claimant allegedly injured his back while driving a truck and operating a backhoe for the employer. On September 14, 1984, the Commission affirmed the arbitrator's decision that the claimant failed to prove that he was temporarily totally disabled as a result of his accidental injuries while in the employ of the employer. In its decision, the Commission also determined the probable costs of the record. On September 19, 1984, the claimant received the Commission's decision.

On September 26, 1984, the claimant sent to the Commission a check for the probable costs of the record accompanied by a letter of transmittal. The record indicates that on September 27, 1984, this payment was received by the Commission. Also on September 27, 1984, the claimant filed for a writ of certiorari and a writ of scire facias. As evidence of his payment for the record costs, the claimant presented to the circuit court clerk copies of the check and the letter of transmittal sent to the Commission. According to an affidavit by the issuing clerk, based on the copies of the check and letter as well as the attorney's reputation, she was satisfied that the payment had been duly sent. The clerk subsequently issued the writs.

On June 19, 1986, the employer filed a motion to quash the writs, alleging that there was no proof that a receipt from the Commission for the payment of the probable costs of the record had been exhibited to the clerk or that the clerk had been satisfied that the Commission had actually received the payment. The court allowed the motion, dismissing the matter for lack of subject matter jurisdiction.

The sole issue on appeal is whether the motion to quash the writs was properly granted where the claimant failed to present to the clerk a receipt documenting the payment of the probable costs of the record as required by section 19(f)(1) of the Act.

The claimant argues that in light of section 19(f)(1) as amended on September 25, 1985, and the supreme court's interpretation of section 19(f)(1) in Berry v. Industrial Com. (1973), 55 Ill. 2d 274, 302 N.E.2d 277, the statute now requires only that: (1) payment actually be made; and (2) the clerk be subjectively satisfied that payment was made. The claimant asserts that both of these requirements were met as evidenced by the Commission's receipt and the clerk's stated satisfaction that payment had been sent. The claimant asks this court to retroactively apply amended section 19(f)(1) to this cause.

The employer counters that the claimant's failure to strictly comply with the requirement of section 19(f)(1) to present to the clerk a receipt for payment of the record costs deprived the circuit court of subject matter jurisdiction in the instant cause. The employer also argues that Berry requires a clerk to know that the Commission has received payment and not merely believe that payment has been made.

A virtually identical argument was made by the claimant in Malone v. Industrial Com. (1986), 141 Ill. App. 3d 116, 489 N.E.2d 1167, wherein this court was asked to retroactively apply the statutory amendment to facts indistinguishable from those present here. In Malone, this court held the amendment should not be retroactively applied and the circuit court lacked subject matter jurisdiction. As will be discussed more fully, we perceive no reason to depart from our previous holding on the basis of the arguments presented here.

Initially, this court notes that the claimant filed a praecipe for writ of certiorari and a writ of scire facias, using the statutory language of section 19(f)(1) prior to its amendment in 1983 instead of filing a written request for summons as the statute ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.