Celeste v. Industrial Com'n

• Citation: 562 N.E.2d 1148,205 Ill.App.3d 423,150 Ill.Dec. 345
• Decision Date: 19 October 1990
• Docket Number: No. 1-90-0468,1-90-0468
• Parties: , 150 Ill.Dec. 345 Lawrence CELESTE, Jr., Appellant, v. The INDUSTRIAL COMMISSION, et al. (Coca Cola Bottling Company, Appellee). WC.
• Court: United States Appellate Court of Illinois

Page 1148

562 N.E.2d 1148

205 Ill.App.3d 423, 150 Ill.Dec. 345

Lawrence CELESTE, Jr., Appellant, v. The INDUSTRIAL COMMISSION, et al. (Coca Cola Bottling Company, Appellee).

No. 1-90-0468 WC.

Appellate Court of Illinois,

First District,

Industrial Commission Division.

Oct. 19, 1990.

Gary B. Friedman, Ltd., Chicago, for appellant.

Wiedner & McAuliffe, Ltd., Chicago, for appellee.

Justice McCULLOUGH delivered the opinion of the court:

The issue before us is whether an employee who seeks review of an Industrial Commission (Commission) decision must file a bond to confer subject-matter jurisdiction upon the circuit court. We hold there is no such statutory requirement.

This dispute arose as the result of proceedings which occurred after this court remanded the case to the Commission following a prior appeal. (Celeste v. Industrial Comm'n (1988), 165 Ill.App.3d 1156, 129 Ill.Dec. 966, 536 N.E.2d 1016 (unpublished order under Supreme Court Rule 23).) Upon remand, claimant filed a motion for interest which was not heard prior to the time respondent paid the award. Included in the sum tendered and accepted was an amount specifically designated to cover interest. Nevertheless, the Commission later ruled that claimant was not entitled to interest. Claimant sought review in the circuit court but did not file a bond. On respondent's motion, summons was quashed because of the failure to file a bond.

Section 19(f)(2) of the Workers' Compensation Act states in pertinent part:

"No such summons shall issue unless the one against whom the Commission shall have rendered an award for the payment of money shall upon the filing of his written request for such summons file with the clerk of the court a bond conditioned that if he shall not successfully prosecute the review, he will pay the award and the costs of the proceedings in the courts. * * * Every county, city, town, township, incorporated village, school district, body politic or municipal corporation against whom the Commission shall have rendered an award for the payment of money shall not be required to file a bond to secure the payment of the award and the costs of the proceedings in the court to authorize the court to issue such summons." (Emphasis added.) Ill.Rev.Stat.1989, ch. 48, par. 138.19(f)(2).

Claimant argues that he is not one "against whom the Commission shall have rendered an award for the payment of money." In consequence, under the express terms of the statute, he argues an employee is not required to file a bond. Respondent counters that everyone who seeks review of a Commission order must file a bond; especially where, as here, respondent has paid monies to claimant in excess of its liability and would have a right to reimbursement.

Respondent relies on Firestone Tire & Rubber Co. v. Industrial Comm'n (1979), 74 Ill.2d 269, 24 Ill.Dec. 171, 384 N.E.2d 1329. In that case, judgment was entered against an employer ; but the Commission order did not set an amount for the bond. Firestone attempted to petition for review but did not file a bond. The respondent did not argue that a bond should not attach. Rather, because the order entered contained no provision for a bond, the employer argued the Commission had, in effect, set the bond at zero. The supreme court disagreed stating that a bond had to be filed and described the procedure by which the employer could petition the Commission to set a bond so as to enable it to perfect review.

Respondent argues the only difference between this case and Firestone is that the positions of the parties are reversed. That fact, however, is precisely why Firestone is inapplicable.

Although no cases have been cited, the issue has been considered in prior cases and commentary. To the point is a former treatise on Illinois compensation law which states the following:

"In case judicial review by the circuit court is sought by a claimant [emphasis added] for compensation, no bond is needed as the bond is required only by one against whom has been 'rendered an award for the payment of money,' hence the legislature has not required that bond be filed by every person seeking review of the action of the Industrial Commission." (Emphasis in original unless otherwise noted.) (3 T. Angerstein, Illinois Workmen's Compensation § 2126, at 19 (1952).)

(See also 3 T. Angerstein, Illinois Workmen's Compensation § 2127, at 19-20 (1952).) In support of this conclusion the treatise quotes the supreme court in Nierman v. Industrial Comm'n (1928), 329 Ill. 623, 626, 161 N.E. 115, 116-17, for the following proposition:

" 'The bond which the employer is required to give before he is permitted to prosecute a writ of certiorari from the circuit court to review an award makes unnecessary the rendition by the circuit court of a judgment for the payment of money in case the decision of the Industrial Commission is confirmed. (Otis Elevator Co. v. Industrial Com., 288 Ill. 396, 123 N.E. 600.) If every award of compensation confirmed by the circuit court upon review...