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Court Affirms Award Rendered After Ex Parte Hearing on Red Line Case

By John F. Kamin

In unpublished Decision rendered in Union Roofing v. IWCC, (10 I.W.C.C. 0102 (2010)) the Appellate Court affirmed an Arbitrator’s award after an ex parte hearing. The claim was above the red line, that is it had been on file for more than three (3) years. Neither the petitioner’s attorney nor the respondent’s attorney had filed a Request for Hearing form or served a Notice of Motion and Order on the other party indicating their intent to proceed with arbitration. At the status call, the Arbitrator noted that neither party had requested the case be continued and the Arbitrator set the matter for trial. The petitioner’s attorney then appeared at the trial setting. An ex parte hearing took place and an award was rendered. The respondent objected, noting that it did not receive notice of the trial setting. The Court affirmed the award based upon the ex parte hearing noting that it was not necessary for the parties to notice the case for trial on a red line case as the Commission Rules provide representatives of both the employer and the petitioner should be present at the call.

Obviously, this is a troubling Decision. Prior to the call, both parties had consulted and they did not intend to proceed with arbitration. The Arbitrator did not accept that stipulation and forced the case to trial. The significant lesson is that if an employer does not have an attorney of record once it reaches the red line, there is the possibility that petitioner’s attorney will be forced to go to trial by an Arbitrator on an ex parte basis.

We recommend that claims be referred to defense counsel even if it is solely an “appearance only” basis so the cases can be monitored on the call to prevent a similar circumstance as was presented in the Union Roofing case.

Originally published in the Summer 2012 edition of Quinn Quarterly.