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02/10/88 Louise A. Cole, v. the Industrial Commission

February 10, 1988

LOUISE A. COLE, APPELLANT

v.

THE INDUSTRIAL COMMISSION ET AL. (METROPOLITAN INSURANCE COMPANY, APPELLEE)



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT

519 N.E.2d 1081, 166 Ill. App. 3d 486, 116 Ill. Dec. 866 1988.IL.164

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

APPELLATE Judges:

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

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MCCULLOUGH

Claimant appeals from an order of summary affirmance of the arbitrator's decision entered by the Industrial Commission (Commission). On appeal, claimant maintains summary affirmance by the Commission is improper. Claimant also argues Commission rules which do not permit introduction of additional evidence or a hearing before the Commission upon review of a petition filed under section 19(b-1)(Ill. Rev. Stat. 1985, ch. 48, par. 138.19(b-1)) violate the Workers' Compensation Act, due process, and equal protection.

Claimant filed an application for adjustment of claim and a petition for immediate hearing under section 19(b -- 1) for injuries she allegedly received after being run over by an automobile. The arbitrator denied benefits, finding claimant failed to prove her injuries arose out of and in the course of her employment. A petition to review that decision was filed citing various errors with respect to interpretation of the evidence. Claimant also requested leave to offer additional evidence in the form of an evidence deposition of a physician. That motion was apparently denied. The Commission declined to review the arbitrator's decision on the basis of claimant's failure to file a written summary or brief as required by Commission Rule 4(7). Based on this failure the Commission summarily affirmed the arbitrator. The circuit court confirmed the Commission and claimant now appeals.

Claimant contends summary affirmance by the Commission is improper and requires reversal. We agree. In Shannon v. Industrial Comm'n (1987), 160 Ill. App. 3d 520, 513 N.E.2d 525, this court held that the Commission must reasonably interpret its rules and automatic denial of review of an arbitrator's decision under Commission Rule 7040.70 (50 Ill. Adm. Code 7040.70 (1985); 9 Ill. Reg. 16249 (eff. October 15, 1985)) (which codified former Commission Rule 4(7)) is unreasonable unless the circumstances warrant its application. Invoking the rule without regard to the facts of a particular case is patently arbitrary. The decision on review in this case contains the same boiler plate language this court has previously examined in other cases in which this court reversed the Commission's summary affirmance of the arbitrator. (See Chicago Transit Authority v. Industrial Comm'n (1986), 141 Ill. App. 3d 930, 491 N.E.2d 58.) There is no indication the Commission ever considered the circumstances particular to this case in determining whether the rule should be applied. Accordingly, were the rule applicable to this case, the Commission's decision to summarily affirm would necessarily require reversal under the precedent of Shannon.

A more fundamental error is apparent in the Commission's action, however, since the rule does not apply to section 19(b -- 1) proceedings, which do not require that the timely filing of a statement of exceptions and supporting brief must precede review by the Commission.

Section 19(b -- 1) proceedings are governed exclusively by rules of the Commission separate from those applicable to adjustments of claim. Rule 7020.80(b)(4)(50 Ill. Adm. Code 7020.80(b)(4)(Supp. 1986)) instructs that a petition for review in a section 19(b -- 1) setting must contain a statement of the appellant's specific exceptions to the arbitrator's decision, which may be satisfied by attaching a statement of exceptions and supporting brief to the petition for review. No sanction is provided whatsoever for failure to file a sufficient petition for review of section 19(b -- 1) petitions. Thus, Commission Rule 7040.70 is not applicable to section 19(b -- 1) proceedings for review and was improperly applied under any circumstances by the Commission in this case.

Respondent argues, nevertheless, the petition for review does not confer "jurisdiction" upon the Commission because it contains an insufficient specific statement of exceptions and supporting brief. We have examined the petition for review and note it contained specific objections to the arbitrator's decision together with references to various pages in the transcript to support those claims of error. No additional brief was filed. The argument the Commission lacks "jurisdiction" because of an insufficient petition for review stems from a similar Conclusion reached in the case of Albrecht v. Fruit Growers Express (1986), Opinion No. 86 IIC 1381. We decline to express an opinion as to the validity of the

Claimant next contends application of Commission rules which do not permit the introduction of additional evidence or a hearing on review in a section 19(b-1) proceeding directly violates section 19(e) of the Act (Ill. Rev. Stat. 1985, ch. 48, par. 138.19(e)) and denies her due process and equal protection. In this case, claimant filed a motion before the Commission to present additional evidence on review in the form of a deposition from a physician to resolve a discrepancy in the evidence as to the source of claimant's injuries. Although there is no notation in the record, the parties agree the motion was denied for unknown reasons.

At issue is the interplay between Commission Rules 7040.10(c), 7020.80(b)(4)(c) (50 Ill. Adm. Code 7040.10(c), 7020.80(b)(4)(c) (1985 & Supp. 1986)) and section 19(e) of the Act.

Section 19(e) permits the introduction of additional evidence before the Commission and expressly applies to all hearings, including those brought under section 19(b -- 1) of the Act. However, Commission Rule 7040.10(c) only permits the introduction of additional evidence if a hearing is permitted before the Commission and under Commission Rule 7020.80(b)(4)(c) no hearing may be held upon review of section 19(b -- 1) petitions. As claimant correctly points out, operation of the Commission rules nullifies the ...


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