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10/24/89 Francisco Berrios, v. Ray J. Rybacki Et Al.

October 24, 1989





546 N.E.2d 651, 190 Ill. App. 3d 338, 137 Ill. Dec. 706 1989.IL.1662

Appeal from the Circuit Court of Cook County; the Hon. Robert L. Sklodowski, Judge, presiding.


JUSTICE HARTMAN delivered the opinion of the court. SCARIANO and DiVITO, JJ., concur.


Plaintiff appeals from an order of the circuit court denying his motion for summary judgment and granting summary judgment for defendants on plaintiff's complaint seeking a declaration that certain directives adopted by the Illinois Industrial Commission (Commission), and its chairman, Ray J. Rybacki (chairman), were void, among other claims for relief. Plaintiff's theory is that the directives were, in fact and in law, rules adopted contrary to the provisions of the Illinois Administrative Procedure Act (Ill. Rev. Stat. 1987, ch. 127, par. 1001 et seq.).

The principal issues presented on review include whether: this appeal should be dismissed because plaintiff lacks standing to challenge the directives in view of plaintiff's settlement of his underlying worker's compensation claims; *fn1 the procedures promulgated by the chairman and adopted by the Commission were actually "rules" under the APA, thereby subjecting them to the requirement of notice, comment or hearing and publication; and defendants' motion for summary judgment should have been denied because the motion was not free from doubt.

In late 1985 and early 1986, plaintiff Francisco Berrios, received injuries while in the scope of his employment at General Mills. In June and September 1986, he filed applications for adjustment of his claims with the Commission pursuant to the Worker's Compensation Act (Ill. Rev. Stat. 1985, ch. 48, par. 138.1 et seq. (Act)).

The claims, consolidated on October 14, 1986, were scheduled for trial on October 23, 1987, before a Commission arbitrator, who dismissed the claims for want of prosecution when plaintiff and his attorneys failed to appear before her between the hours of 8:45 a.m. and 9:15 a.m. in order to take part in a new procedure denominated the "trial order drawing." The arbitrator told plaintiff's counsel that she was acting according to what were labelled by the Commission as the "Chicago Arbitration Rules" (Chicago Rules), made effective on October 1, 1987, *fn2 and made effective statewide as of January 1, 1988. These rules were not filed with the Secretary of State, nor set for comment or hearing, nor were they published in the Illinois Register pursuant to the APA, according to the chairman.

Plaintiff took no action to refile or reinstate his claims, or to appeal the dismissals to the Commission, although those options were available. Instead, he brought this circuit court action against the chairman and the Commission (sometimes collectively defendants), seeking: (1) a declaration that the Chicago Rules were void because they were not promulgated in accordance with the APA; (2) a declaration that the dismissal for want of prosecution of plaintiff's claim be declared null and void, and that his claim be reinstated and assigned to another arbitrator; (3) a declaration that all other petitioners' applications for adjustment of claims that were dismissed on or after October 1, 1987, be reinstated and reassigned; (4) a temporary or permanent injunction restraining defendants from attempting to enforce the invalid rules in the future absent compliance with the APA; (5) a temporary or permanent injunction against the Commission to prevent it from acting under the Chicago Rules until it complies with the APA; and (6) costs and fees.

Although reference is made in the briefs to plaintiff's lawsuit as a class action, no allegations are set forth in his complaint as to any proposed class, or applicability or statutory prerequisites (Ill. Rev. Stat. 1987, ch. 110, pars. 2-801 through 2-806); however, in his prayer for relief he does ask:

"For a declaratory judgment declaring that all other petitioners' applications for adjustment of claim, that were dismissed on and after October 1, 1987 be reinstated and randomly reassigned to other Arbitrators for trial, and that said matters be set for trial within 60 days after said reassignment."

Extensive discovery subsequently was undertaken. During his deposition, the chairman explained that the new procedures were created to effectuate a "degree of uniformity which would allow all the parties, petitioners, respondents and their counsel or pro se petitioners to move expeditiously and keeping with the spirit of the act through the Commission." The chairman alluded to the fact that there was no established procedure followed by each arbitrator and that few, if any, rules were actually reduced to writing. He stated that none of the other commissioners were consulted with regard to the proposed rules.

The chairman also indicated that the new procedures were made "available" in writing in September 1987 to attorneys at a seminar, and also at the Commission's office. The chairman was familiar with the Illinois Administrative Code (Code) and its prescribed procedures for prearbitration, and averred that the Chicago Rules do not amend sections 7020 or 7030 of the Code (50 Ill. Adm. Code ยงยง 7020, 7030 (1985)), ...

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