Frank v. Industrial Commission

PRESIDING JUSTICE McCULLOUGH

delivered the opinion of the court:

Claimant, Vicki Frank, sought benefits pursuant to section 19(b — 1) of the Workers’ Compensation Act (Act) (Ill. Rev. Stat. 1989, ch. 48, par. 138.19(b — 1)) for injuries she sustained while in the employ of Pass Pets, Ltd. (Pass Pets). While taking down Easter decorations, Frank lost her balance and jumped or fell from the stepladder on which she was standing. She felt a "jarring” sensation in her lower back and upper right leg. Ultimately, Frank had two surgeries on her lower back.

The arbitrator awarded temporary total disability benefits (TTD), plus additional medical expenses of $33,350.70, a sum in addition to previous medical expenses paid by Pass Pets for treatment rendered Frank by two previous medical providers. On March 16, 1993, the Industrial Commission (Commission) reversed the award for medical expenses, finding the $33,350.70 related to expenses incurred beyond the chain of referral of Frank’s two chosen medical providers. The Commission confirmed the award in all other respects.

On April 16, 1993, claimant filed a petition for administrative review in the circuit court and Pass Pets filed a motion to dismiss that appeal based on the untimeliness of claimant’s request for sum-mans. The circuit court denied the motion to dismiss and reversed the Commission’s denial of the medical award, finding the first provider was of Pass Pet’s choosing and not one chosen by Frank. Pass Pets appeals. Because we find the circuit court was without jurisdiction due to Frank’s failure to timely comply with the requirements of section 19(f)(1) of the Act (820 ILCS 305/19(f)(1) (West 1992)), we vacate the circuit court’s order and reinstate the Commission’s decision.

Section 19(f)(1) of the Act requires that "[a] proceeding for review shall be commenced within 20 days of the receipt of notice of the decision of the Commission.” (820 ILCS 305/19(f)(1) (West 1992).) The application for adjustment of claim with respect to claimant’s attorney shows:

"Thomas R. Kelso Attorney
Beckett & Crewell Firm Name
313 N. Mattis, #214, P.O. Box 6479 Champaign, IL 61821”

According to the documents of record, the Commission mailed a copy of its decision to Frank’s counsel, Thomas Kelso, to a post office box number and/or address at 313 N. Mattis, Champaign, Illinois, where it was signed for on March 20, 1993, by Dixie Phillips, office administrator of a law firm with which attorney Kelso had not been affiliated since December 31, 1992. Phillips apparently forwarded the decision to Kelso at his new law firm, which he claims to have received on March 27, 1993. Kelso then filed a request for review in the circuit court on April 16, 1993, more than 20 days after the Commission’s decision was received and signed for by Phillips, but exactly 20 days after Kelso claims to have received the decision forwarded by her. Attorney Kelso filed an affidavit and reply to the motion to dismiss averring that "upon the formation” of his new law firm he:

"instructed the support staff of Kelso & Crewell [the new firm], which did not include Ms. Dixie Phillips, to send notices of his new address to all parties, courts, the Illinois Industrial Commission, and attorneys of record involved in all pending cases, including this matter; and that to the best of his knowledge and belief said parties, courts, the Industrial Commission and attorneys received said notices, signed by Thomas R. Kelso.”

Section 19(i) of the Act provides:

"Each party, upon taking any proceedings or steps whatsoever before any Arbitrator, Commission or court, shall file with the Commission his address, or the name and address of any agent upon whom all notices to be given to such party shall be served, either personally or by registered mail, addressed to such party or agent at the last address so filed with the Commission.” 820 ILCS 305/19© (West 1992).

While Kelso claims to have instructed his staff to notify the Commission and the attorney for Pass Pets of his new address, he does not indicate the time frame when he did so nor produce any correspondence or other evidence showing notice of his change of address was given to the Commission prior to March 16, 1993. His affidavit states only a conclusion that "to the best of his knowledge and belief said parties, courts, Industrial Commission and attorneys received said notices.” He relies solely on his conclusional assertion that he believes the Commission received such notice. The first instance that any document appears of record bearing the new address of attorney Kelso is a letter to the Commission on the letterhead of his new firm dated April 2, 1993, in which he forwarded the fee for preparation of the record. The attorney for Pass Pets filed an affidavit stating he had never received notice of the dissolution of attorney Kelso’s old law firm or any change of address prior to April 23, 1993. A letter dated April 23, 1993, and addressed to counsel for Pass Pets from Kelso’s old firm, advised that Kelso was no longer affiliated with that firm and listed his new address. We must assume, therefore, that the address to which the Commission directed its decision is the address for service of notice on attorney Kelso which it carried in its records pursuant to section 19(i) of the Act.

Our decision in no way relies on any theory of agency between Phillips and Kelso. To the extent an agency relationship is relevant, it is only that existing between Kelso and claimant. Since there is no evidence attorney Kelso supplied the Commission with his current address, the time for filing an appeal began to run whenever anyone at the address the Commission carried on its records evidenced receipt of the Commission’s decision. "While Kelso made some filing with the Commission bearing his correct address, the Commission is not required to compare the address on every new filing it receives with the address carried in its records. The statute suggests that a specific notice of change of address is required, which Kelso did not show.

The jurisdiction of the circuit court is statutory only, and compliance with the statutory prerequisites is necessary for the circuit court to obtain subject-matter jurisdiction. (Boalbey v. Industrial Comm’n (1977), 66 Ill. 2d 217, 218, 362 N.E.2d 286, 287.) The circuit court does not have jurisdiction if a party fails to comply with the 20-day time limit for administrative review under section 19(f)(1) (Boat-bey, 66 Ill. 2d at 220, 362 N.E.2d at 287). Under the circumstances of this case, the 20-day period began to run when Phillips signed the return receipt on March 20, 1993, and was tolled no later than April 10, 1993. Therefore, Frank’s petition for summons for administrative review filed April 16, 1993, was untimely and the circuit court lacked subject-matter jurisdiction.

Had we considered the merits, we find nothing of record indicating the decision of the Commission was against the manifest weight of the evidence.

The order of the circuit court is vacated and the decision of the Commission reinstated.

Vacated; Commission’s decision reinstated.

RAKOWSKI, COLWELL, and HOLDRIDGE, JJ., concur.