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08/11/89 Thomas Whitmer, v. the Industrial Commission

August 11, 1989

THOMAS WHITMER, APPELLANT

v.

THE INDUSTRIAL COMMISSION ET AL. (CONSOLIDATED FREIGHTWAYS CORP., APPELLEE)



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, INDUSTRIAL COMMISSION DIVISION

549 N.E.2d 353, 187 Ill. App. 3d 409, 139 Ill. Dec. 841 1989.IL.1232

Appeal from the Circuit Court of Cook County; the Hon. Alexander P. White, Judge, presiding.

APPELLATE Judges:

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

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MCCULLOUGH

Claimant appeals from an order of the trial court which quashed summons and dismissed his Industrial Commission (Commission) review proceeding for lack of subject-matter jurisdiction. Claimant contends the court erred in that determination. We disagree and affirm.

The facts are undisputed. Following the issuance of the Commission's decision, claimant filed for review in the circuit court. Presented to the circuit clerk were the following documents:

(1) A summons to the Industrial Commission;

(2) A summons to respondent's attorneys;

(3) A certificate of mailing; and

(4) A receipt for payment of the record to the Commission.

Claimant did not, however, file a separate document requesting issuance of summons by the clerk. Relying upon Daugherty v. Industrial Comm'n (1983), 99 Ill. 2d 1, 457 N.E.2d 381, Wolfe v. Industrial Comm'n (1985), 138 Ill. App. 3d 680, 486 N.E.2d 280, Luttrell v. Industrial Comm'n (1987), 154 Ill. App. 3d 943, 507 N.E.2d 533, and Chadwick v. Industrial Comm'n (1987), 154 Ill. App. 3d 859, 507 N.E.2d 878, the trial court dismissed the case, concluding the failure to file a written request for summons did not constitute strict compliance with section 19(f)(1) of the Workers' Compensation Act (Act) (Ill. Rev. Stat. 1987, ch. 48, par. 138.19(f)(1)).

In Daugherty claimant filed a praecipe for writ of certiorari and scire facias which did not contain the name of a party in interest. As a result, that party, the second injury fund, was not served with summons until well after the proceedings for review had commenced in the circuit court. The supreme court held that jurisdiction could only be acquired by the timely filing of a written praecipe which met the statutory requirement that the praecipe contain the names of all parties in interest. The appeal was dismissed for failure to file a praecipe conforming to those requirements. The supreme court considered the fact the omitted party was eventually served irrelevant.

In Wolfe, claimant failed to file a written request for summons. Because respondent failed to perfect a cross-appeal, this court concluded law of the case made review of respondent's jurisdictional argument inappropriate. Nevertheless we observed: "Strict compliance with section 19(f)(1) of the Act would appear to require that the request be in writing, and ...


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