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Banks v. Industrial Commission

January 28, 2004

JOHNNIE D. BANKS, JR., APPELLANT,
v.
THE INDUSTRIAL COMMISSION ET AL. (MARIAH BOATS, APPELLEE).



Appeal from the Circuit Court of Franklin County. No. 02-MR-19 Honorable Loren P. Lewis, Judge, Presiding.

Justices: Honorable Thomas E. Callum, J. Honorable John T. McCullough, P.J., Honorable Thomas E. Hoffman, J., Honorable William E. Holdridge, J., and Honorable Richard P. Goldenhersh, J., Concur

The opinion of the court was delivered by: Justice Callum

UNPUBLISHED

I. INTRODUCTION

On November 2, 1995, claimant, Johnnie D. Banks, Jr., filed an application for adjustment of his claim under the Workers' Compensation Act (Act) (820 ILCS 305/1 et seq. (West 1994)). On April 21, 1999, an arbitrator dismissed his claim for want of prosecution. On June 28, 1999, claimant's counsel petitioned to reinstate the claim but did not set a hearing on the petition. Claimant obtained new counsel who, on February 28, 2001, filed a second petition to reinstate. An arbitrator denied reinstatement. Claimant sought review before the Industrial Commission (Commission), which upheld the denial. Claimant sought judicial review, and the trial court confirmed the Commission's decision. On appeal, claimant argues that the Commission abused its discretion in denying claimant's petition to reinstate his claim after the dismissal for want of prosecution. We affirm.

II. BACKGROUND

Claimant filed his application for adjustment of claim on November 2, 1995. The application alleged that, while working for employer, Mariah Boats, on June 29, 1995, claimant was injured when a co-worker struck him with a pipe. No action was taken on the claim until April 21, 1999, when the claim came up on the arbitrator's monthly status call. The arbitrator entered an order stating that "[t]his cause being called for arbitration, *** and all parties hereto having received due notice, *** and [claimant] having failed to appear, it is ordered that such cause *** is hereby dismissed for want of prosecution."

On June 28, 1999, claimant petitioned to vacate the dismissal and reinstate the claim. The petition alleged that claimant's attorney received notice of the dismissal on May 12, 1999. Claimant's attorney was unaware that the matter had been set on the regular docket call and on April 21, 1999, was in court on several criminal matters. The petition did not notice a hearing date, and no action was taken on it.

Claimant obtained new counsel who, on February 28, 2001, filed a second petition to reinstate alleging that the first petition was never ruled on and, because claimant had a meritorious claim, the standards of equity and fairness mandated reinstatement. The arbitrator denied the motion, and claimant timely sought review before the Commission.

The Commission upheld the arbitrator's decision and reasoned as follows:

"The Commission finds that [claimant's] case was dismissed for want of prosecution three years and four months after the Application for Adjustment of Claim had been filed, that [claimant's] attorney of record had an obligation to keep track of this claim and that [claimant's] attorney *** filed a timely motion to reinstate this matter but failed to comply with Commission rule 7020.90(b). The Commission finds no evidence the Arbitrator abused his discretion in dismissing this claim. The Commission has done its own review of the record and finds no reason to reinstate the claim."

Claimant sought judicial review, and the trial court confirmed the Commission's decision. Claimant timely appealed.

III. DISCUSSION

On appeal, claimant argues that the Commission erred in refusing to reinstate his claim. On a petition to reinstate before the Commission, the burden is on the claimant to allege and prove facts justifying the relief sought. Bromberg v. Industrial Comm'n, 97 Ill. 2d 395, 401 (1983). Whether to grant or deny a petition to reinstate rests within the sound ...


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