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Rosa Rojas v. Illinois Workers' Compensation Commission et al. (Foell Packing Company

December 27, 2010

ROSA ROJAS,
APPELLANT,
v.
ILLINOIS WORKERS' COMPENSATION COMMISSION ET AL. (FOELL PACKING COMPANY, )
APPELLEE.



Appeal from the Circuit Court of Cook County. No. 09-L-50278 Honorable Lawrence O'Gara, Judge Presiding.

The opinion of the court was delivered by: Justice Stewart

NOTICE Workers' Compensation

Decision filed 12/27/10. The text of Commission Division this decision may be changed or c orrected prio r to the filing of a FILED: December 27, 2010

Peti tion for Rehearing or the disposition of the same.

JUSTICE STEWART delivered the judgment of the court, with opinion. Presiding Justice McCullough and Justices Hoffman, Hudson, and Holdridge concurred in the judgment and opinion.

Rosa Rojas (the claimant) appeals from a decision of the circuit court of Cook County which confirmed a decision of the Illinois Workers' Compensation Commission (the Commission). The Commission affirmed and adopted the decision of the Arbitrator denying the claimant's petition for reinstatement of her claim, which had been dismissed for want of prosecution. The sole issue raised on appeal by the claimant is whether the Commission abused its discretion in denying the claimant's petition to reinstate her claim. No cross-appeal was filed by the employer. We raise, sua sponte, the issue of the jurisdiction of the circuit court to hear the claimant's appeal. We hold that the circuit court lacked jurisdiction and, accordingly, we vacate the judgment of the circuit court and dismiss this appeal.

BACKGROUND

On August 17, 1999, the claimant filed an application for adjustment of claim, alleging that her left arm and shoulder were injured in a work accident. On February 6, 2003, the Arbitrator entered an order finding that "all parties received due notice, but the [claimant] failed to appear at a status call or trial date." Accordingly, the Arbitrator dismissed the case for want of prosecution. In the notice of that dismissal, the claimant was informed that, unless she filed a petition to reinstate with the Commission within 60 days of receipt of the dismissal, her case could not be reopened.

On March 12, 2003, the claimant's attorney timely filed a notice of motion to reinstate the case and requested a hearing date of March 24, 2003. The hearing was continued until April 9, 2003, but neither the claimant nor her attorney appeared for that hearing. On August 4, 2003, the claimant's new attorney filed an appearance in the case. On March 8, 2004, the claimant filed a notice of a motion for reinstatement of the case. The notice scheduled a hearing on April 12, 2004, but no motion was filed and no hearing was held. Subsequently, the claimant filed a "Petition To Return Case To Trial Call" and accompanying notice of hearing. Neither the Petition nor the notice is file-marked, but the notice schedules the petition for hearing on September 13, 2004. On September 7, 2004, the employer filed a reply and objection to the claimant's petition to reinstate, alleging in part that neither the claimant nor her attorney appeared for the hearing on April 12, 2004; that she had never proceeded on her request for reinstatement; that she had not exercised due diligence in prosecuting her claim; and that the employer no longer existed in Illinois.

The hearing on the petition was continued to September 30, 2004, and on that date the Arbitrator heard the parties' arguments on the issue of reinstating the claimant's case. On November 18, 2004, the Arbitrator denied the claimant's motion to return the case to the trial call. In that order, the Arbitrator found that she had originally dismissed the case on February 6, 2003, when the claimant and her attorney failed to appear at a trial call on a date that was "well above the red line." She noted that the claimant's first petition to reinstate was timely filed and that a hearing was set on that petition on April 9, 2003, but that the claimant and her attorney again failed to appear. As a result, the motion to reinstate the case was dismissed. The Arbitrator found that the dismissal "was clearly shown on the data base of the *** Commission." She determined that the claimant had not filed any request to reinstate the case until March 8, 2004, which was 13 months after the original dismissal.

She denied the motion to return the case to the trial call based upon "the length of delay and the absence of good cause for such a delay."

The claimant filed a petition for review of the Arbitrator's decision. On September 25, 2007, the Commission affirmed and adopted the Arbitrator's order.

The claimant appealed the Commission's order to the circuit court, and the employer filed a motion to dismiss, arguing that the claimant had failed to timely comply with the requirements of section 19(f)(1) of the Act, depriving the circuit court of subject matter jurisdiction. The employer asserted that the claimant received notice of the Commission's September 25 decision on September 27, 2007. The 20th day after September 27, 2007, was October 17, 2007. The employer alleged that the claimant had attempted to file her case on October 16, 2007, by file-stamping the certificate of mailing and summons at a no-fee drop box at a suburban district office of the circuit clerk's office. The employer alleged that the claimant had failed to file a request for summons, proof of payment of the probable cost of the record, or have summons issued within 20 days of receiving notice of the Commission's The employer asserted that the request for summons was not properly filed in the office of the circuit clerk, and summons was not issued, until December 21, 2007, well beyond the 20 days allowed after the claimant's receipt of notice of the Commission's decision. The employer alleged that the claimants' failure to pay the filing fee and obtain a case number until December 21, 2007, the 65th day after receiving notice of the Commission's decision, deprived the circuit court of subject matter jurisdiction. The employer also argued that the claimant could not have timely filed proof of payment of the probable cost of the record since the receipt for payment is dated on the 22nd day, after September 27, 2007.

The record on appeal includes a request to issue summons, a certificate of mailing, and a summons in administrative review. Each document bears a file-stamp from the Cook County Circuit Clerk's office dated October 16, 2007, which includes the letter "B" as part of the file-stamp. The certificate of mailing and summons also bear a second file-stamp, dated December 21, 2007, from the Cook County Circuit Clerk, Law Division. The certificate of mailing and summons bear the seal of the circuit clerk for the date of December 21, 2007. In the certificate, the clerk of the circuit court states that, on December 21, 2007, she mailed a copy of the summons to the Commission. Also included in the record is the original commission receipt for payment of the probable cost of the record, which is only file-marked by the clerk of the circuit court on December 21, 2007. The receipt ...


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