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Alexander v. Industrial Commission

July 20, 1999

FRANK ALEXANDER, APPELLANT,
v.
THE INDUSTRIAL COMMISSION ET AL. (WIL-FRED'S CONSTRUCTION COMPANY, APPELLEE).



The opinion of the court was delivered by: Justice Rakowski

Appeal from the Circuit Court of Cook County.

Honorable Alexander P. White, Judge Presiding.

Regarding oral argument before the Illinois Industrial Commission (the Commission), section 19(e) of the Workers' Compensation Act provides in pertinent part: "In the event either party requests oral argument, such argument shall be had before a panel of 3 members of the Commission ***. *** A decision of the Commission shall be approved by a majority of Commissioners present at such hearing." 820 ILCS 305/19(e) (West 1996). In this case, oral argument was requested and had before a panel of three commissioners. However, at the time the Commission's decision was issued, the term of one of the commissioners had expired. The two remaining commissioners were unable to agree on a result and wrote separate decisions. A replacement commissioner, who was not present at oral argument, concurred in one of the decisions and signed the majority decision pursuant to Zeigler v. Industrial Comm'n, 51 Ill. 2d 137 (1972). Is the Commission's decision valid? We conclude that, under the appropriate circumstances, it is. Where there is sufficient reliable evidence in the record to conclusively establish the departing commissioner(s)' decision in the case, the replacement commissioner(s) may sign the written decision pursuant to Zeigler. In the instant case, however, there is insufficient evidence in the record to establish how the departing commissioner decided the matter. We therefore remand to the circuit court for the limited purpose of taking evidence concerning the departing commissioner's vote.

BACKGROUND

Claimant, a cement mason, filed an application for adjustment of claim for an injury to his low back that occurred on December 2, 1991, while he was lifting 30-pound sheets of plywood for employer. After conservative treatment, which did not improve his condition, claimant underwent a laminectomy and disectomy. As a result, he was only able to function at light to medium capacity and could not return to his former occupation. The arbitrator concluded that claimant was permanently partially disabled to the extent of 50%. Claimant requested oral argument, and his petition for review was heard before Commissioners Ketter and Tansor and Acting Commissioner Hagan on October 23, 1996. Acting Commissioner Hagan's six-month term expired on December 16, 1996. The Commission issued its decision on January 21, 1997. Commissioner Ketter wrote a majority opinion, adopting and affirming the arbitrator's decision. Commissioner Tansor filed a lengthy Dissent, stating he would find that claimant was permanently and totally disabled. Acting Commissioner Kane, who was appointed to fill Hagan's vacancy, issued a specially Concurring opinion, stating that he had not participated in oral argument or the decision, but that a majority of the panel had reached a decision prior to Acting Commissioner Hagan's departure and he was signing the decision pursuant to Zeigler so the decision could issue.

Claimant sought review to the circuit court, alleging that the Commission's decision was void because it did not comply with section 19(e). Claimant alternatively argued that the Commission's decision finding that he was not totally and permanently disabled was against the manifest weight of the evidence. The circuit court disagreed with both contentions. It concluded that the Commission's decision was proper in light of Zeigler, which it found controlling, and then found that the Commission's decision denying permanent total disability was not against the manifest weight of the evidence.

ANALYSIS

In Zeigler v. Industrial Comm'n, 51 Ill. 2d 137 (1972), claimant's petition was heard before five commissioners, a majority of the Commission, on December 20, 1968. Three of the five commissioners' terms expired on February 17, 1969, and they were replaced by three new commissioners. The Commission, including the three new commissioners, issued its decision on April 11, 1969. The three new commissioners signed the written order. On review in the circuit court, claimant argued that the Commission's decision was invalid because it was not signed by the commissioners who heard oral argument. In support of the validity of the Commission's decision, employer submitted an affidavit from Lewis Gaines, one of the departing commissioners, stating that, prior to the departures, the Commission had reached a decision. That decision was then entered on the file jacket. The affidavit stated that it was customary for the commissioners to reach a decision, write it on the file jacket, and then have the court reporter type the decision so a copy could be sent to the parties. The supreme court concluded that the Commission's decision was proper, finding:

"The affidavit and file jacket show that the decision of the Industrial Commission was made by the same Commissioners who heard the oral argument and considered the evidence. The fact that the written document formalizing the decision was prepared after three of the Commissioners who rendered the decision left the office is not fatal to the decision. Neither is the fact that the written document was signed by three new Commissioners who had not heard oral argument." Zeigler, 51 Ill. 2d at 142.

According to the court:

"The Act requires that after the hearing on review 'the Commission shall file in its office its decision thereon, and shall immediately send to each party or his attorney a copy of such decision and a notification of the time when it was filed.' [Citation.] These requirements of the Act relate to the performance of ministerial functions which may be performed by the members of the Commission who may not have been members who made the decision. The making of the decision is an act of the Commission. The formalizing of the decision by preparing the written document, filing it in the Commission's office and sending copies thereof to the parties as required by the Act are likewise acts of the Commission independent of the act of making the decision. The Commission being a continuing administrative body [citations], there is no reason why these acts must be performed by a Commission composed of the same members." Zeigler, 51 Ill. 2d at 142-43.

At the time of Zeigler, section 19(e) provided, in pertinent part: "After such hearing upon review, the Commission shall file in its office its decision thereon, and shall immediately send to each party or his attorney a copy of such decision and a notification of the time when it was filed." Ill. Rev. Stat. 1971, ch. 48, par. 138.19(e). However, in 1984, section 19(e) was amended. It now provides, in pertinent part:

"In the event either party requests oral argument, such argument shall be had before a panel of 3 members of the Commission ***. *** A decision of the Commission shall be approved by a majority of Commissioners present at such hearing." (Emphasis added.) 820 ILCS 305/19(e) (West 1996).

Since the 1984 amendment, two appellate court cases have discussed the application of Zeigler to section 19(e) as amended. In Jarrett v. Industrial Comm'n, 156 Ill. App. 3d 898 (1987), the court merely cited to Zeigler, stating that signing by a new commissioner is proper. In Hoegger v. Industrial Comm'n, 158 Ill. App. 3d 1025 (1987), the court quoted the amended statute and found that allowing a new commissioner to sign is proper. Both cases apply the Zeigler reasoning to the new statute. The ...


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