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Kavonius v. Industrial Commission

Illinois Appellate Court


June 11, 1999

GERALD KAVONIUS, APPELLEE,
v.
THE INDUSTRIAL COMMISSION ET AL. BOISE CASCADE, APPELLANT .

Appeal from the Circuit Court of Du Page County. No. 95MR350 Honorable John W. Darrah, Judge, Presiding.

The opinion of the court was delivered by: Justice Rarick

Claimant, Gerald Kavonius, sought benefits pursuant to the Workers' Compensation Act (Act) (820 ILCS 305/1 et seq. (West 1994)), for injuries sustained while in the employ of Boise Cascade (Boise). Kavonius was employed as a warehouse worker and forklift operator.

On March 8, 1993, Kavonius sustained a back injury while lifting some cartons (case No. 94WC7063). On April 16, 1993, Kavonius sustained a second injury when he picked up a carton to put it on the conveyor (case No. 93WC40884). The arbitrator issued his decision on January 11, 1993. In both cases, the arbitrator found that Kavonius failed to prove that he sustained accidental injuries arising out of and in the course of employment. On March 5, 1995, the Industrial Commission (Commission) affirmed and adopted the decision of the arbitrator in both cases. Kavonius sought judicial review in case No. 93WC40884. On January 18, 1996, the circuit court of Du Page County reversed the Commission and remanded for further proceedings.

On January 17, 1997, the Commission, after an extensive review of the facts, found that Kavonius sustained an accidental injury arising out of and in the course of his employment on April 13, 1993. The Commission awarded Kavonius a total of 71½ weeks of temporary total disability (TTD) benefits and medical expenses. The Commission denied Kavonius's petition for penalties and attorney fees. Boise received the Commission's decision on January 23, 1997, and filed its request for issuance of summons on February 13, 1997. (February 12, 1997, the 20th day following Boise's receipt of the Commission's decision, was a court holiday.) A written request for issuance of summons and the related documentation necessary to perfect the appeal, including the appeal bond and proof of payment of the probable cost of the record, were sent via Federal Express on February 11, 1997, and received by the circuit clerk on February 13, 1997. According to the affidavit of Sheryl Lapka, one of Boise's attorneys, she subsequently received a return envelope from the clerk's office containing a file-stamped copy of the request for summons, indicating that it was filed on February 13, 1997. The envelope also contained all of the other documentation, none of which had been filed. An attached note stated, "We only need to file the comp. everything else is presented in open court." Upon making an inquiry, Lapka was informed by an employee in the clerk's office that only the "complaint" had to be filed and everything else was to be presented in open court. She was told that was the procedure in Du Page County.

On July 22, 1997, Boise filed a second request for issuance of summons. Kavonius first received notice of Boise's intent to seek judicial review on July 24, 1997. On August 1, 1997, Kavonius filed a motion to quash, which the circuit court denied on September 5, 1997. On September 26, 1997, Boise filed proof of payment of the probable cost of the record and an appeal bond, and summons was issued. On review before the circuit court, Kavonius argues, inter alia, the circuit court did not have subject matter jurisdiction because Boise failed to comply with section 19(f)of the Act (820 ILCS 305/19(f) (West 1992)). On April 24, 1998, the circuit court found that it had subject matter jurisdiction and confirmed the decision of the Commission.

On appeal, Boise argues that the Commission's decision and award of benefits is contrary to the manifest weight of the evidence. Unfortunately, we cannot reach this issue, however, because we find that the circuit court did not have subject matter jurisdiction. Taken with the case was Kavonius's motion to dismiss Boise's appeal for want of subject matter jurisdiction. Kavonius argues that the burden is on Boise to demonstrate that it has complied with the requirements of section 19(f) and that the record does not show that Boise has met that burden. Section 19(f)(1) of the Act provides in pertinent part:

"A proceeding for review shall be commenced within 20 days of the receipt of notice of the decision of the Commission. The summons shall be issued by the clerk of such court upon written request returnable on a designated return day, not less than 10 or more than 60 days from the date of issuance thereof, and the written request shall contain the last known address of other parties in interest and their attorneys of record who are to be served by summons. ***

In its decision on review the Commission shall determine in each particular case the amount of the probable cost of the record to be filed as a part of the summons in that case and no request for a summons may be filed and no summons shall issue unless the party seeking to review the decision of the Commission shall exhibit to the clerk of the Circuit Court proof of payment by filing a receipt showing payment or an affidavit of the attorney setting forth that payment has been made of the sums so determined to the Secretary or Assistant Secretary of the Commission." 820 ILCS 305/19(f)(1) (West 1992).

Section (f)(2) provides:

"No such summons shall issue unless the one against whom the Commission shall have rendered an award for the payment of money shall upon the filing of his written request for such summons file with the clerk of the court a bond conditioned that if he shall not successfully prosecute the review, he will pay the award and the costs of the proceedings in the courts. The amount of the bond shall be fixed by any member of the Commission and the surety or sureties of the bond shall be approved by the clerk of the court. The acceptance of the bond by the clerk of the court shall constitute evidence of his approval of the bond." 820 ILCS 305/19(f)(2) (West 1992).

While circuit courts are courts of general jurisdiction and enjoy a presumption of subject matter jurisdiction, such presumption is not available in workers' compensation proceedings, where the court exercises special statutory jurisdiction, and strict compliance with the statute is required to vest the court with subject matter jurisdiction. Arrington v. Industrial Comm'n, 96 Ill. 2d 505, 451 N.E.2d 866 (1983). One of the statutory requirements that must be satisfied in order to vest the circuit court with subject matter jurisdiction is that a party seeking circuit court review must, within 20 days of receiving the Commission's decision, exhibit to the clerk of the court proof of payment of the probable cost of the record by filing a receipt showing payment or an affidavit of the attorney setting forth that payment has been made. Bess v. Industrial Comm'n, 264 Ill. App. 3d 225, 636 N.E.2d 1021 (1994); Beasley v. Industrial Comm'n, 198 Ill. App. 3d 460, 555 N.E. 2d 1172 (1990). Another requirement is that an appeal bond must be filed along with the written request for summons. Strict compliance with this requirement is likewise necessary to vest the circuit court with subject matter jurisdiction. Deichmueller Construction Co. v. Industrial Comm'n, 151 Ill. 2d 413, 603 N.E.2d 516 (1992); Berryman Equipment v. Industrial Comm'n, 276 Ill. App. 3d 76, 657 N.E.2d 1039 (1995); Illinois Armored Car Corp. v. Industrial Comm'n, 205 Ill. Ap. 3d 993, 563 N.E.2d 951 (1990).

In the present case, the record does not demonstrate that Boise complied with the requirements of the statute. Indeed, Boise cannot be said even to have substantially complied with the requirements of section 19(f). According to the affidavit of attorney Lapka, shortly after February 13, 1997, she learned that the proof of payment of the probable cost of the record and the appeal bond had not yet been filed. Nevertheless, Boise did nothing for five months. On July 22, 1997, Boise filed a second request for summons, but again neither proof of payment of the probable cost of the record nor an appeal bond was filed. Such documentation was not filed until September 26, 1997, over seven months late. While we are sympathetic to Boise's plight, at least with respect to the initial failure to file the appropriate documentation within the 20-day time frame, we are bound by the clear requirements of the statute and of the case law interpreting it. Boise failed to comply with section 19(f), and the circuit court was therefore without jurisdiction to grant Boise's petition for judicial review.

For the foregoing reasons, the motion to dismiss is hereby granted and the cause dismissed for lack of subject matter jurisdiction.

Appeal dismissed.

McCULLOUGH, P.J., and RAKOWSKI, COLWELL, and HOLDRIDGE, JJ., concur.

19990611


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