Mitchell v. Industrial Com'n
Decision Date | 15 July 1992 |
Docket Number | No. 4-91-0366WC,4-91-0366WC |
Citation | 174 Ill.Dec. 71,232 Ill.App.3d 943,598 N.E.2d 268 |
Parties | , 174 Ill.Dec. 71 Frank A. MITCHELL, Appellant and Cross-Appellee, v. The INDUSTRIAL COMMISSION, et al. (Fiat-Allis, Appellee and Cross-Appellant). |
Court | United States Appellate Court of Illinois |
Katz, Friedman, Schur & Eagle, Chicago (Harold A. Katz, of counsel), for appellant and cross-appellee.
Heyl, Royster, Voelker & Allen, Karen L. Kendall, Bradley S. McMillan, Peoria, Gary L. Borah, Heyl, Royster, Voelker & Allen, Springfield, for appellee and cross-appellant.
The claimant, Frank Mitchell, appeals an order of the circuit court which reversed an Industrial Commission (Commission) decision that awarded benefits to claimant. The employer cross-appeals, arguing that this court lacks appellate jurisdiction. We hold that under the circumstances we have jurisdiction, and further, we reverse the circuit court.
Claimant notified his employer that he was injured on March 2, 1985. A hearing was held on November 16, 1987, and the parties presented evidence. On December 31, 1987, the arbitrator denied claimant's benefits on the basis that he had failed to prove that he in fact had sustained accidental injuries arising out of the course of his employment on the date alleged. On August 22, 1990, the Commission reversed the decision of the arbitrator, awarded claimant benefits, and additionally the Commission awarded attorney's fees and penalties, finding that the employer's termination of benefits to claimant was not justified. On March 1, 1991, the circuit court reversed the Commission's decision, finding it to be against the manifest weight of the evidence.
Claimant, for reasons which will be discussed later in this opinion, did not appeal this decision of the circuit court within 30 days. On April 25, 1991, however, claimant filed a petition pursuant to section 2-1401 of the Code of Civil Procedure (Code) (Ill.Rev.Stat.1989, ch. 110, par. 2-1401), requesting that the circuit court withdraw its order of March 1, 1991. The employer objected to this petition. On April 29, 1991, the circuit court entered an order granting claimant's petition, and entered a new order of judgment which was in substance the same as the March 1, 1991, order. On May 20, 1991, claimant then filed his notice of appeal, which was twice amended. On June 4, 1991, the employer filed its cross-appeal.
The pertinent facts are as follows. Claimant had been employed by the employer, Fiat-Allis, Inc., since 1948. He worked in the powerhouse, taking readings and repairing steam lines. In his work, claimant said, he was often required to use ladders. On the night of March 2, 1985, claimant testified that he was using a ladder to change filters, and he fell off the ladder from a height of about four feet while he was working in the west penthouse. Claimant said that he told the employer's guard, William Butterfield, about his accident that night, and that he saw Butterfield "write it down." Claimant had experienced problems with his knees during his employment with the employer other than those arising from the incident of March 2, 1985, and also had problems with his back during his employment with the employer.
Butterfield testified that on more than one occasion, claimant had told him about work-related injuries, although he could not recall specifically whether claimant told him about an injury incurred on March 2, 1985. Specifically, Butterfield did recall that at some point claimant fell off something while doing maintenance work, and that it happened in the west penthouse. On this occasion, Butterfield said that he recorded the matter of claimant's fall in his guard report, which he turned in, and which, according to Butterfield should "still be out there" and should have been kept by the company.
Ervin Shores, the employer's supervisor of medical services, testified that he searched the guard records and found no evidence that claimant had reported the March 2, 1985, injury. Shores was first notified of claimant's injury by claimant on March 25, 1985. The employer did not introduce the actual March 2, 1985, guard report into evidence, nor did it call either of the two individuals of the company whose job it was to secure the reports the morning after a shift. Shores interviewed Butterfield, and in the accident report that Shores took on March 25, 1985, Shores stated that claimant slipped from a ladder and "had pain in his right leg and hip." Shores was aware that claimant had experienced previous injuries, but they were not industrial injuries and had been treated under medical. Claimant did not report to the employer's hospital the morning after the injury, although he had in the past sought the services of the hospital when experienceing aches and pains on the job.
Claimant contacted his orthopedic surgeon, Dr. David Mack, who had performed arthroscopic surgery upon claimant's knee in 1983, and due to claimant's previous knee problems, surgery in the future was a possibility. Mack had also treated claimant for his back problems. With respect to the injury of March 2, 1985, Mack saw claimant on March 26, 1985. Claimant reported his work accident to Mack, and Mack wrote plaintiff's report of the March 2, 1985, accident down. Claimant further told Mack that "catching" in his right knee began after the accident. Though Mack could not specify to what degree, he testified that the accident in March of 1985 aggravated the arthritis in claimant's knee, that the condition of the knee was worse after the accident and that the accident caused the catching in claimant's knee, although Mack conceded that catching could have occurred with the absence of trauma to the knee. Claimant did not complain of back problems in March of 1985, and he never claimed to Mack that the March 2, 1985, fall aggravated the condition of his back.
Claimant continued to work after the accident until May 9, 1985, at which point Dr. Mack performed arthroscopic surgery on claimant. During this time, however, he could not climb well, and fellow employees did most of the climbing. Claimant experienced quite a bit of pain during the period leading to the surgery.
Claimant was off work from the date of the arthroscopy until January 14, 1986, when Dr. Mack released him to return to work. During the time between his surgery and his return to work, claimant was prescribed therapy in the form of some light weight lifting to strengthen his knee. This hurt his knee quite a bit, and hurt his back somewhat as well. During this period, claimant had both his knee and back treated for this soreness.
THE EMPLOYER'S CROSS-APPEAL:
APPELLATE JURISDICTION
The first issue we address relates to whether we have jurisdiction to decide claimant's appeal. Illinois Supreme Court Rule 303 (134 Ill.2d R. 303) establishes the requirements for our jurisdiction. Rule 303(a)(1) provides:
"[N]otice of appeal must be filed with the clerk of the circuit court within 30 days after the entry of the final judgment appealed from, or, if a timely post-trial motion directed against the judgment is filed, whether in a jury or a nonjury case, within 30 days after the entry of the order disposing of the last pending post-trial motion." (134 Ill.2d R. 303(a)(1).)
However, if the time requirements of Rule 303(a) are not met, appellate jurisdiction may obtain under Rule 303(e), which provides in pertinent part:
"On motion supported by a showing of reasonable excuse for failure to file a notice of appeal on time, * * * filed in the reviewing court within 30 days after expiration of the time for filing a notice of appeal, the reviewing court may grant leave to appeal * * *." 134 Ill.2d R. 303(e).
Sub judice, though, claimant neither appealed the March 1, 1991, order disposing of the controversy at the circuit level, nor did claimant file a motion under Rule 303(e) within 30 days of the expiration of the time for appeal. Rather, within the time allowed for under Rule 303(e), claimant filed a motion pursuant to section 2-1401 of the Code.
The reason for this action is as follows. In his verified section 2-1401 petition, claimant's counsel related that he did not receive a copy of the court's judgment, (although a file-stamped copy of the original judgment order indicates that it was sent to counsel), at any time after March 1, 1991. It was not, according to the verified petition, until April 25, 1991, that counsel learned that the order had been entered. On that day, he searched the court file, and the order was not in the court file (although the order's existence is indicated on the docket sheet entry of March 1, 1991). The verified petition further related that he was informed by the circuit judge of the entry of the order on April 25, 1991. Claimant's counsel asserted at oral argument both that the circuit judge "directed" him to file a section 2-1401 petition, and that the circuit judge "suggested" that he file such a petition. While the verified petition is silent as to the circuit judge's direction or suggestion, the docket sheet entry of April 25, 1991 does state: "[Claimant's counsel] directed to file written motion to vacate * * *." Neither party on appeal has explained just how the "missing" original order of March 1, 1991, appears in the record, when the order was not in the court file initially.
In Kalan v. Palast (1991), 220 Ill.App.3d 805, 809-10, 163 Ill.Dec. 224, 581 N.E.2d 175, the court observed:
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Marriage of Schauberger, In re
...Procedure (Ill.Rev.Stat.1989, ch. 110, par. 2-1301 (now 735 ILCS 5/2-1301 (West 1992))). See also Mitchell v. Industrial Comm'n (1992), 232 Ill.App.3d 943, 949, 174 Ill.Dec. 71, 598 N.E.2d 268 (motion for which all relevant facts appear of record is not properly brought pursuant to section ......
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Mitchell v. Fiat-Allis, Inc.
...jurisdiction. Reaching the merits, the appellate court held that the trial court erred in reversing the Commission. (232 Ill.App.3d 943, 174 Ill.Dec. 71, 598 N.E.2d 268.) Thereafter, Fiat-Allis filed its petition for leave to appeal in this court, which we granted (134 Ill.2d R. Fiat-Allis ......
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