May 5, 1998
APPELLATE COURT OF ILLINOIS
INDUSTRIAL COMMISSION DIVISION
JETSON MIDWEST MAINTENANCE, ) Appeal from the Circuit
) Court of Cook County,
Appellant, ) Illinois
v. ) No. 95 L 50781
THE INDUSTRIAL COMMISSION, ) Honorable
et al., (Rudy Huber, ) Alexander P. White
Appellee.) ) Judge, Presiding
JUSTICE HOLDRIDGE DELIVERED THE OPINION OF THE COURT:
Rudy Huber (the claimant), filed an application for adjustment
of claim pursuant to the Workers' Compensation Act (the Act) (Ill.
Rev. Stat. 1983, ch. 48, par. 138.1 et seq. now 820 ILCS 305/1 et
seq.(Michie 1995)) alleging that while working for Jetson Midwest
Maintenance (employer) he suffered injuries to his left knee as a
result of an accident on November 16, 1991.
Immediately prior to the start of a section 19(b) hearing, a
stipulation sheet was completed by the parties, marked and offered
as Arbitrator's Exhibit No. 1. At paragraph 5, an average weekly
wage (AWW) figure of $304.50 is crossed out and replaced with the
hand-written figure of $231.51 per week. There are no initials or
date next to the changes. Claimant testified at hearing that he
normally worked 10 hours per day during the week. He also
testified that Saturdays were "like working a regular working day"
during which he worked 8 to 10 hours.
After the close of proofs, the Arbitrator issued a decision
awarding compensation in which he recited an AWW of $304.50 per
week. Employer filed a timely petition for review of the
arbitrator's decision with the Commission. In the request for
review form, employer did not raise the arbitrator's calculation of
the AWW as error. Employer's statement of exceptions and
supporting brief was due to be filed with the Commission on June 9,
1995. Employer's exceptions and brief, in which employer raised
the issue of AWW, were not filed until July 31, 1995, three days
prior to the oral arguments before the Commission.
The Commission denied oral argument based upon the untimely
submission of the statement of exceptions, and did not consider
employer's statement of exception when it ruled that the issue of
AWW was waived. The Commission issued a decision adopting the
Arbitrator's decision and finding that employer had waived the
issue of AWW by failing to raise it in the petition for review or
in a timely statement of exceptions. (Commission Rule 7040.20(d)).
Employer filed a petition for judicial review with the Circuit
Court of Cook County. Judge Alexander P. White held that the
finding of the Commission that respondent had waived the issue of
AWW was neither contrary to law nor against the manifest weight of
the evidence. The employer appealed.
The employer contends that the Commission's decision adopting
the arbitrator's finding that the claimant's AWW was $304.50 was
contrary to law and against the manifest weight of the evidence
where there was no evidence in the record supporting a finding of
$304.50 as the AWW, and the parties had stipulated prior to hearing
that the AWW was $231.51.
The employer acknowledges that failure to present an issue to
the Commission waives that issue before the Circuit Court and the
Appellate Court. Service Adhesive Co. v. Industrial Comm'n, 226
Ill. App. 3d 356, 370 (1992). Employer further acknowledges that
Commission Rules require that statements of exceptions and
supporting briefs shall be filed not later than 30 days after
transmittal of the transcript on review. Likewise, Section
7040.70(d) of the Commission Rules states:
"The Commission will only consider, and oral
arguments will be limited to, the issues raised
in both the Review proceedings stipulation form
*** and in the party's statement of exception(s)
and/or addition(s) and supporting brief, and to
those in any complying response thereto. Failure
of any appellant or petitioning party to file
timely any statement of exception(s) and/or
additions(s) and supporting brief as required by
this Section, *** shall constitute waiver of the
right to oral argument by that party and an
election not to advise the Commission of any
reason to change the Arbitrator's decision or to
grant the petition ***."
Employer claims, however, that it did properly present the
issue of AWW to the Commission in its, albeit untimely filed,
statement of exceptions and brief. Employer also notes that the
Commission only remarked on its failure to check off "wages" as
an issue on the Petition for Review form as support for the
finding that AWW was not raised as an issue. Employer notes that
the Petition form specifically states that additional issues may
be considered by the Commission, and this statement is
inconsistent with the "unduly harsh" decision of the Commission
to follow Rule 7040.70(d).
It is well-settled that failure to present an issue before
the Commission waives the issue. Service Adhesive Co.. Absent
an abuse of discretion, a reviewing court should not overturn an
administrative decision of the Commission regarding its own
procedural rules. After carefully reviewing the record in this
matter, we see no abuse of discretion by the Commission.
Based upon the foregoing, the decision of the circuit court
of Cook County is affirmed.
McCULLOUGH, P.J., and RAKOWSKI, COLWELL, and RARICK, JJ.,