WCLA MCLE Dismissal & Reinstatement: Form, Proof & Defense Wednesday May 12, 2010 Michael J. Brennan; Kane, Doy & Harrington Presenter James R. Thompson Center Auditorium Chicago, IL 1 hour general MCLE credit

Issue What is the proper procedure for reinstating a case that has been dismissed for want of prosecution? What are the standards that the Commission applies to reinstate a case? How do reviewing courts look at these issues? NOT COVERED: Dismissal of case for substantive reasons, like coverage of the WCA (Hagemann v. IWCC, No WC, filed January 22, 2010)

Rule IL.ADMIN.CODE, Chapter II, Section Section Petitions to Reinstate a) Where a cause has been dismissed from the arbitration call for want of prosecution, the parties shall have 60 days from receipt of the dismissal order to file a petition for reinstatement of the cause onto the arbitration call. Notices of dismissal shall be sent to the parties. b) Petitions to Reinstate must be in writing. The petition shall set forth the reason the cause was dismissed and the grounds relied upon for reinstatement. The petition must also set forth the date on which Petitioner will appear before the Arbitrator to present his petition. A copy of the petition must be served on the other side at the time of filing with the Commission in accordance with the requirements of Section c) Petitions to Reinstate shall be docketed, and assigned to and heard by the same Arbitrator to whom the cause was originally assigned. Both parties must appear at the time and place set for hearing. Parties will be permitted to present evidence in support of, or in opposition to, the petition. The Arbitrator shall apply standards of fairness and equity in ruling on the Petition to Reinstate and shall consider the grounds relied on by Petitioner, the objections of Respondent and the precedents set forth in Commission decisions. d) A cause shall be reinstated upon stipulation of the parties filed with the Commission, which will docket the stipulation. (Source: Amended at 6 Ill. Reg , effective September 20, 1982)

Appellate & Supreme Court Cases Hester v. Diaz, 346 Ill. App. 3d 550 (2004): failure to reinstate case may constitute legal malpractice Zimmerman v. IIC, 50 Ill.2d 346 (1972): DISMISSED; burden is on the Petitioner; no abuse of discretion Shiffer v. IIC, 53 Ill.2d 519 (1973): DISMISSED; prior dismissals relevant in considerations; burden on Petitioner; no abuse of discretion Cranfield v. IIC, 78 Ill.2d 251 (1980): DISMISSED; Petitioner filed “Petition for Review” which was interpreted as Petition to Reinsate; still denied

Appellate & Supreme Court Cases Roberts v. IIC, 96 Ill.2d 475 (1983): DISMISSED; 19(h) Petition; Petitioner alleged no notice of dismissal received; dismissal order said “due notice given” Bromberg v. IIC, 97 Ill.2d 395 (1983): DISMISSED; Hearing on Review continued on multiple dates; no abuse of discretion; not reasonable to “assume” case would be continued in absence Notman v. IIC, 219 Ill.App.3d 203 (1991): DISMISSED; case dismissed “with prejudice” for failure to produce tax returns; timely Petition to Reinstate filed; no timely Petition for Review filed

Appellate & Supreme Court Cases Conley v. IIC, 229 Ill.App.3d 925 (1992): DISMISSED; no abuse of discretion despite Petitioner’s alleged lack of notice; duty of Petitioner to prove lack of notice; notice of dismissal not required to be served personally or by certified mail Banks v. IIC, 345 Ill.App.3d 1138 (2004): DISMISSED; first Petition to Reinstate timely filed but never heard; second Petition heard but denied; no abuse of discretion; Rule does not require Petition to be heard within a certain period of time but does require Petitioner to “notice the Petition for a hearing” Nestle USA v. IIC, 365 Ill. App. 3d 727 (2006): Respondent’s declaratory judgment and injunction action dismissed

Commission Decisions Diaz v. Marriott, 06IWCC0762: DISMISSED; over 1 year delay between filing of and hearing on Petition to Reinstate, citing Banks Van Poucke v. Dominicks, 09IWCC0254 : DISMISSED; Commission vacates Arbitrator’s granting of Petition to Reinstate; “extreme delay” of over a year before filing Petition; Arbitrator relied on Petitioner’s lawyer’s representation as officer of court that no notice was received Harris-Hart v. American Legion Post, 09IWCC0377: REINSTATED; hearing on Amended Petition to Reinstate 4 years after original Petition filed; equities work in favor of Petitioner after multiple changes of attorney

Commission Decisions Austin v. ABF, 09IWCC0438: DISMISSED; Petitioner did not appear on scheduled hearing date Garza v. Duraco, 09IWCC0493: VACATED; dismissal of pro se vacated because Arbitrator did not conduct hearing Valenti v. Rochelle Foods, 09IWCC0787: DISMISSED; case had been previously dismissed and reinstated for identical reasons; “not credible” second time around Richter v. ADM, 09IWCC1128: DISMISSED; Petitioner being incarcerated not good enough for 8 year old case Golemis v. Aramark, 09IWCC1222: DISMISSED; substituting attorney should have followed case and known it was above the line

Commission Decisions Hampton v. Kenney, 09IWCC1246: Denial of Reinstatement VACATED; Arbitrator did not conduct hearing St. Vincent v. Daimler Chrysler, 09IWCC1247: Denial of Reinstatement VACATED; Arbitrator did not conduct hearing Casteneda v. City of Chicago, 09IWCC1313: DISMISSED; Petition filed but not heard until 4 years later; no news is not good news Rodriguez v. SOI, 09IWCC1347 : REINSTATED; Petition to Reinstate continued from time to time, but appealable order entered without knowledge of parties; settlement negotiations on-going and parties agree

Commission Decisions Eruteya v. City of Chicago, 10IWCC0058: REINSTATED; ARBITRATOR’S DENIAL REVERSED; pro se Petitioner did not get notice of dismissal; letter from Respondent’s lawyer not equivalent of Notice of Dismissal Zdunczyk v. Cardinal, 10IWCC0193: OK to dismiss duplicative filing after hearing Figueroa v. SOI,10IWCC0194: REINSTATED; ARBITRATOR’S DENIAL REVERSED; no appearance at hearing on Petition because of prior communication to Arbitrator as to payment of benefits and consolidation and stipulation of parties Sanchez v. Pheasant Run, 10IWCC0258: REINSTATED; ARBITRATOR’S DENIAL REVERSED; missed only one hearing; dismissal is too harsh a sanction

TTC Illinois v. IWCC ___Ill.App.3d___, 918 N.E.2d 570, 335 Ill.Dec.225 (2009) 08IWCC0645/0646; 00WC50293/50294 Cases dismissed (Notice dated ) Petitions to Reinstate filed Petitions “did not set forth a date on which claimant would appear before Arbitrator and present his Petitions” No notice of motion filed with original Petitions; No Form 23 Respondent agreed in writing to reinstatement; rescinded Notice of Motion dated Hearing continued to ; Arbitrator Dibble reinstates Cases tried July 2007 (25% MAW & PTD) Respondent’s Petition for Review (Reinstatement not listed?); addressed in SOE & Response Cir. Ct. Judge Bleyer (Marion): waiver of strict compliance with Rule is manifest weight, but even question of law is OK

TTC Illinois v. IWCC ___Ill.App.3d___, 918 N.E.2d 570, 335 Ill.Dec.225 (2009) 08IWCC0645/0646; 00WC50293/50294 “Although the 60-day limit for filing a petition to reinstate after it has been dismissed by an arbitrator for want of prosecution is jurisdictional in nature, we do not believe that the same is true of the contents requirements of such a petition as contained in section (b)…As the Employer’s only criticism of the claimant’s petitions to reinstate is their failure to set forth the date upon which they would be heard as required in section (b), we reject the argument that the Commission erred as a matter of law in reinstating the claimant’s cases.” No abuse of discretion because there is evidence that the parties previously agreed to reinstatement; employer “acquiesced in deficient petitions”; delay due to agreement