specially concurring:
On September 30, 1997, the arbitrator’s order denying the claimant’s application for benefits was filed. The Commission gave notice of the decision to all the parties. The notice also notified all of the parties that any request for review must be filed within 30 days, together with certification that payment for cost of the transcript in the amount of $50 has been made. The claimant sought review before the Commission. With his petition for review, filed October 2, 1997, he attached an affidavit requesting waiver of costs. On one of these documents is written “Instructed to treat this as a § 1/20.” The record does not show any payment of the $50 cost set by the Commission or any objection by Amway that payment had not been made. However, the record does show the transcript was filed with the Commission on November 4, 1997. The Commission affirmed the arbitrator’s order on February 27, 1998.
On March 11, 1998, the claimant filed a request for summons and application to sue as a poor person. The request stated that claimant had been granted a waiver of costs and bond pursuant to section 20. It also listed the parties to be served, naming claimant, the secretary of the Industrial Commission, the chairman of the Industrial Commission, attorney John E. Childress for Amway, and Caroll David, attorney for Amway. A bill for costs in the amount of $88, dated March 12, 1998, is shown in the record. An entry dated March 20, 1998, shows the application to sue was denied by the trial court.
Amway, by its attorney, entered a general appearance on March 25, 1998. On March 31, 1998, Amway filed a motion requesting a scheduling order for submitting briefs and a date for oral argument. No pleading seeking to dismiss for failure to pay costs was filed. On that date, March 31, 1998, Amway also filed a notice of hearing for April 20, 1998, at 1:30 p.m., showing service by mail to claimant. An amended notice of hearing with proof of service was filed that same day, setting the scheduling hearing at 9:45 a.m. on April 20, 1998. The amended notice set forth that the time of hearing had been changed.
On April 15, 1998, Amway filed a motion to strike only with respect to a document filed by claimant on April 10, 1998, a medical certification of disability. The motion to strike did not suggest claimant’s petition for review should be stricken for failing to pay costs. Amway, on April 15, 1998, also gave notice to claimant that the motion to strike would be heard on April 20, 1998, at 9:45 a.m. On April 20, 1998, the docket sheet shows “Present attorney Childress. Motion to strike allowed. Attorney Childress to prepare written order. Cause stricken.”
I do not agree with the majority in its recitation that the trial court, on April 20, 1998, dismissed the review proceeding because claimant failed to present proof of payment of costs. Although the docket entry shows the cause was stricken, there is nothing in the record to suggest anything other than Amway’s motion to strike the pleading filed by claimant on April 10 was heard by the trial court. On April 22, 1998, claimant filed a “notice of cost and bond waiver.” Attached was a Commission receipt showing claimant’s section 20 status, dated March 13, 1998. The claimant certified that a copy of this notice was sent to Amway’s attorney on April 20, 1998.
On April 27, 1998, Amway’s attorney wrote to the trial court, forwarding a proposed order. On April 28, 1998, the trial court entered the proposed order. The order, as prepared and submitted, was entered without modification. This order goes far beyond the docket entry of April 20, 1998, directing Amway’s attorney to prepare an order granting the motion to strike claimant’s April 15, 1998, filing. The April 28 order found claimant failed to exhibit proof of payment to the Industrial Commission for the cost of the record. Without explanation, the order finds summons never issued to Amway. This finding is not correct. The record shows Amway was served by the circuit clerk. In addition, it is noted Amway made a general entry of appearance on March 25, 1998.
The question of whether the petition for review should be dismissed for failure to pay costs was never before the trial court. Amway never filed a motion, and the record does not show the trial court conducted any hearing, on the asserted failure to pay costs. Because of this, and because the record now shows a March 13, 1998, section 20 receipt, the trial court’s order should be reversed. Here, it appears even the Commission’s review proceedings’ costs were waived, and Amway should be charged with knowledge of the same. I agree that section 20 is an exception to the proof of payment requirement of section 19(f)(1). The question of whether a party has timely section 20 status is easily addressed by an opponent’s motion.