dissenting:
The majority opinion holds that a party or his attorney has a duty to exercise due diligence to insure that the transcript is prepared in a reasonable time even though the obligation to prepare and furnish the transcript rests with the Commission. The opinion does not specify exactly what the employer should have done, only that whatever it did do was insufficient. Presumably, the employer should have made phone calls and/or sent letters to the Commission and the court reporter. The opinion also relies on the testimony of Jeanmarie Calcagno, an attorney specializing in workers’ compensation law, who testified that she had a professional relationship and contact with Mary Ellen Nelson prior to and contemporaneous with the events of the instant case. She testified that she had obtained Mary Ellen Nelson’s address through the official reporter’s office. She then contacted Nelson and was able to obtain a transcript within 60 days. Presumably, the majority opinion requires that employer’s counsel should have done the same. I respectfully disagree.
The standard “Petition For Review of Decision of Arbitrator and Order For Transcript” requests the Commission to furnish an original copy of proceedings on arbitration. By signing the petition, the party or attorney also guarantees payment for the cost of the preparation of the transcript. Also, in accordance with section 19(b) the petition requests that the Commission enter an order extending the time for the filing of this transcript for 30 days in addition to the 35 days allowed by statute and the stipulation of the parties. See 820 ILCS 305/ 19(b) (West 1996). As such, the requirement for the filing of a transcript is 65 days. In this case, and in many cases, however, the parties entered into a stipulation waiving the time requirement.
The law is clear that the responsibility to furnish a transcript lies solely with the Industrial Commission. Section 16 states:
“The Commission at its expense shall provide an official court reporter to take the testimony and record of proceedings at the hearings before an Arbitrator or the Commission, who shall furnish a transcript of such testimony or proceedings to either party requesting it, upon payment therefor at the rate of $1.00 per page for the original and 35 cents per page for each copy of such transcript. Payment for photostatic copies of exhibits shall be extra.” 820 ILCS 305/16 (West 1996).
Section 7040.10 of the Administrative Code provides in part:
“b. Order of Arbitration Transcript
1) Stenographic reports of proceedings before the Industrial Commission shall be furnished the parties only upon written order filed with the Commission.
2) For purposes of perfecting a review, an arbitration transcript must be ordered within the time fixed by statute. The estimated cost of the transcript of proceedings may be obtained from the Industrial Commission, and the party requesting such transcript shall deposit a sum of money covering the estimated cost before the reporter shall be required to complete the transcript. An order entered pursuant to Section 20 of the Workers’ Compensation Act (the Act) (Ill. Rev. Stat. 1989, ch. 48, par. 138.20) may be submitted for said monetary deposits.” (Emphasis added.) 50 Ill. Adm. Code § 7040.10 (eff. August 1, 1990).
In accordance with the above, any request for transcript must be initiated by filing a request with the Industrial Commission. It is also clear that the responsibility for furnishing a transcript lies solely with the Commission.
In the instant case, rather than being an abuse of discretion, the Commission’s decision is perfectly reasonable. The decision states that any delay in the completion of the transcript was its responsibility, that it was aware of the problem occasioned by the out-of-state move of the former court reporter, and that it was further advised of this fact by the respondent. The decision goes on to state that because of a lack of control over the former employee, it was unable to secure the transcript until October of 1995. The order concludes that respondent did not demonstrate a lack of diligence and there is no credible evidence of intentional delay by the respondent.
Although it is true that attorney Calcagno was able to secure a transcript by Mary Ellen Nelson in a much shorter time than the employer’s counsel in the instant case, in no way should this be the standard that all parties and attorneys are required to follow. More importantly, somebody has to be first and somebody has to be last. Possibly if the transcript requests from Calcagno and other regular workers’ compensation attorneys were not put ahead of the instant employer’s request, the transcript would have been finished earlier. Many claimants before the Commission are pro se. Many are represented by counsel who only handle a few workers’ compensation cases in a year. Unlike attorney Calcagno, who specializes in workers’ compensation law, these people do not have a working professional relationship with the 26 court reporters employed by the Industrial Commission.
I see no reason to impose a heretofore unknown burden on counsel. No Illinois case has ever held that a party has an obligation to exercise due diligence to ensure a prompt transcript. The reason of course is axiomatic: the obligation to furnish the transcript rests solely with the Commission. Moreover, the ability to spur a recalcitrant court reporter is better handled by the employer (or ex-employer in this case) as opposed to a party or party’s attorney.
The only case cited by the majority, Bromberg v. Industrial Comm’n, 97 Ill. 2d 395, 454 N.E.2d 661 (1983), is inapposite. There the Commission dismissed' claimant’s petition for review following his continuous failure to appear on four occasions. Unlike the instant case, the obligation for Bromberg to appear was his own obligation. Here the obligation to produce a transcript belongs to the Commission.
I respectfully suggest that the Commission’s decision in the instant case makes sense. In accordance with section 16, the Commission admits that the transcript is its obligation and that a party’s right to review an arbitrator’s decision will not be cut off because the Commission is temporarily unable to furnish a transcript. Rather, in accordance with the parties’ jurisdictional stipulation, the Commission will preserve the parties’ right to review until a transcript can be obtained. In the event that it is determined that a transcript cannot be obtained “the Commission may, in its discretion, order a trial de novo before the Commission in such case upon application of either party.” 820 ILCS 305/19(e) (West 1996).
Although the majority holds that it was an abuse of discretion to deny Contreras’ motion for de novo review, I respectfully disagree. I suggest that a de novo hearing before the Commission should only be held in those instances where a transcript cannot be obtained. In this case, apparently the Commission thought it would be able to secure a transcript and eventually it did.
For all these reasons, I would affirm the judgment of the circuit court.
McCULLOUGH, EJ., joins in this dissent.