Like middle children, Reinstatement Motions don’t get enough attention. The general consensus is that Reinstatement Motions almost always get granted, and any fight is an exercise in futility. Cases are routinely reinstated without objection, and often get granted without a formal record.
There is often good justification for a reinstatement of claim to be denied, and the crux of Respondent’s argument should rest on the lack of due diligence on behalf of Petitioner’s attorney to prosecute the claim. The burden is on Petitioner to prove the facts justifying reinstatement.
Pursuant to Commission Rule 9020.90, each party is permitted to present evidence in support of, or in opposition to, the Petition to Reinstate. 50 Ill. Adm. Code 9020.90 (c). On the date of the reinstatement hearing, a Petitioner’s Attorney should be ready to provide documentation to support ongoing prosecution of the claim. Respondent’s attorney should highlight Petitioner’s failure to appear at prior hearing dates, failure to communicate, and failure to take steps to bring the claim to disposition. Finally, if Petitioner’s attorney was not prepared to proceed to trial on the date of dismissal, defense should demand that the case be heard on the merits on the date of reinstatement.
The Commission has been persuaded that Reinstatement is not appropriate pursuant to this Rule. The seminal case that addressed reinstatement denial was Bromberg v. Industrial Commission, 97 Ill. 2d 395 (1983). In Bromberg, both Petitioner and his attorney failed to appear on multiple hearing dates. On the date of dismissal, petitioner’s attorney arrived at the Commission after 11am, arguing that he was tied up at the Circuit Court, and that the elevator was delayed. A Petition to Reinstate was filed the day after dismissal. The Court upheld the denial of the reinstatement, due to Petitioner’s general lack of due diligence in prosecuting the claim. The Court also found it to be significant that Petitioner was not prepared to proceed to trial on the date of dismissal.
Petitioner’s allegation that a Notice of Dismissal was not received in the 60-day reinstatement period does not serve to erase the requirement of due diligence. In Todd Van Pouke v. Dominick’s Finer Foods (09 IWCC 0254), the Petitioner’s attorney alleged that he never received the notice of dismissal due to an address change. The Commission found that the Petitioner lacked due diligence in prosecuting his claim, including non-appearance at hearing dates, failure to respond to Respondent’s settlement offer, failure to provide medical documentation to Respondent’s attorney, and failure to schedule depositions.
The relevant Rule and precedent case law afford Respondents the opportunity to use Motions to Reinstate to either move a claim quickly to resolution through settlement, obtain a dismissal on the record, or proceed with trial. Even if it seems unlikely that a claim will be dismissed, Respondents should request that the Motion be heard on the record, thereby creating a transcript that illustrates a Petitioner’s or Petitioner’s Attorney’s failure to diligently prosecute the claim. This, in turn, may lead to a faster resolution through settlement, eventual dismissal, or trial.
Given the right set of circumstances and defenses, the middle child Motion to Reinstate can be the classic overachiever that no one anticipated.