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Kavonius v. Industrial Commission6/6/2000
On June 11, 1999, this court issued an opinion in Kavonius v. Industrial Comm'n, 305 Ill. App. 3d 705, 713 N.E.2d 158 (1999), dismissing employer Boise Cascade's (Boise) appeal of an order of the circuit court of Du Page County confirming the Industrial Commission's (Commission) award of temporary total disability (TTD) benefits. Boise Cascade's appeal was dismissed for failure to substantially comply with the requirements of section 19(f)(1) of the Workers' Compensation Act (820 ILCS 305/19(f)(1) (West 1992)). Pursuant to its supervisory authority, our supreme court on February 28, 2000, remanded the cause to this court for further consideration in light of Jones v. Industrial Comm'n, 188 Ill. 2d 314, 721 N.E.2d 563 (1999). In accordance with the mandate of our supreme court, our prior opinion in Kavonius is hereby withdrawn and vacated, and the following opinion is issued.
Claimant, Gerald Kavonius, sought benefits pursuant to the Workers' Compensation Act (Act) (820 ILCS 305/1 et seq. (West 1994)), for injuries sustained while in the employ of Boise Cascade. Kavonius was employed as a warehouse worker and forklift operator.
On March 8, 1993, Kavonius sustained a back injury while lifting some cartons (case No. 94WC7063). On April 16, 1993, Kavonius sustained a second injury when he picked up a carton to put it on the conveyor (case No. 93WC40884). The arbitrator issued his decision on January 11, 1993. In both cases, the arbitrator found that Kavonius failed to prove that he sustained accidental injuries arising out of and in the course of employment. On March 5, 1995, the Industrial Commission (Commission) affirmed and adopted the decision of the arbitrator in both cases. Kavonius sought judicial review in case No. 93WC40884. On January 18, 1996, the circuit court of Du Page County reversed the Commission and remanded for further proceedings.
On January 17, 1997, the Commission, after an extensive review of the facts, found that Kavonius sustained an accidental injury arising out of and in the course of his employment on April 13, 1993. The Commission awarded Kavonius a total of 71½ weeks of temporary total disability (TTD) benefits and medical expenses. The Commission denied Kavonius's petition for penalties and attorney fees. Boise received the Commission's decision on January 23, 1997, and filed its request for issuance of summons on February 13, 1997. (February 12, 1997, the twentieth day following Boise's receipt of the Commission's decision, was a court holiday.) A written request for issuance of summons, with a return date of April 7, 1997, and the related documentation necessary to perfect the appeal, including the appeal bond and proof of payment of the probable cost of the record, were sent via Federal Express on February 11, 1997, and received by the circuit clerk on February 13, 1997. According to the affidavit of Sheryl Lapka, one of Boise's attorneys, she subsequently received a return envelope from the clerk's office containing a file-stamped copy of the request for summons, indicating that it was filed on February 13, 1997. The envelope also contained all of the other documentation, none of which had been filed. An attached note stated, "We only need to file the comp. everything else is presented in open court." Upon making an inquiry, Lapka was informed by an employee in the clerk's office that only the "complaint" had to be filed and everything else was to be presented in open court. She was told that was the procedure in Du Page County. No summons was issued.
On July 22, 1997, Boise filed a second request for issuance of summons. Kavonius first received notice of Boise's intent to seek judicial review on July 24, 1997. On August 1, 1997, Kavoniu
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