i also wanted to state that the standard of review on a motion to dismiss which was a two six one nine motion is to no phone the standard of review indicates that there is no deference to be given to the circuit court's finding that the judges are allowed to review the record and make a determination in their own instance and they have according to this two hundred review all well needed facts are true and all reasonable inferences there from can be april ninth two thousand and eight the sequence of events is important to your determination on april eighth of two thousand and eight the day before the agency action was filed in circuit court our office cut a check dated april eighth two thousand and eight the only worker's compensation commission in the amount of thirty five dollars the agency action or petition for administrative review was filed on april ninth two thousand and eight and a written son wins was issued on that date on the same day a letter was transmitted to all of the parties or record including the industrial commission or they own a worker's compensation excellent question your honor we know the answer to that question and answer was the question was the answer to barry versus the industrial commission the illinois supreme court said the purpose at that time of for acquiring proof of payment of the record by rece to coerce the payment or to ensure that the payment of the record was made in this case we know that the payment of the record was made within the twenty day period we also know that the appeal was commenced in a timely fashion within court received their record on may sixteenth of two thousand and eight so not only do we know that the check was sent in included in their record is a copy of the letter that was said to the commission i won with the notation at the bottom that they were told a check twenty well i think you know this that's a question that's why we're up here to talk about what jones says does joan say the check had to be received actually one thousand and one was amended and when it was amended it changed the requirement from proof of receipt of the check from the commission to allow any attorney to file an affidavit to state that the payment had been made and so actually after the amendment under nineteen zero one the attorney can file an a affidavit was filed within the twenty fieri again stating that a payment had been made we know here a payment was made in twenty days i think the core holding in jones is that substantial compliance applies to the requirements of nineteen  think the case is more like barry it is jones if you're going to take the most narrow interpretation of jones if you're going to say that the affidavit had to be filed within the twenty day period everyone agrees the matter was kindly commence within the twenty day period if you're going to say the factors that the jones court identified don't manner if you're going to say that substantial compliance with one thousand now why does it matter if you're going to say joe stands for this proposition that it's strict compliance everything has to be twenty done in twenty days my response is to say that the circuit court still retains jurisdiction over this matter because the sun which is part of the record uses the notation by the deputy clerk of the word affidavit and this is where we get back to all reasonable inferences that i'm entitle to receive argument is that when the summons was issued nine requests for summons jones held it was an oversight that was most teacher prejudiced and therefore that was overlooked in their particular case however in that case the check is proof of payment within the twenty bids that's not well that's what we're here to talk about i think already inference is reasonably drawn for the plaintiff according to the standard review mean that the deputy clerk of court was satisfied that the payment had been made which is why the issue of the summons not unlike the situation in barry where there was a priest's apostasy which was the precursor to the summons the clerk of court contacted the commission verified that the commission had received the payment and then issued the summons and the only spring course it in barrie that th did this to somebody to testify to do there i could only tell you after reading buried it was in the record your honor that it was very clear that the plate just attorney had made statements to the deputy clerk about the payment being sent and that then the deputy clerk contacted the commission and verified receipt of the payment before issuing the some police and there was evidence that the commission received the money within the twenty third in this case there is no idea that they were to be satisfied that the payment had been made before they issued the summons then why would they write the word affidavit on the summons itself if they were aware that an affidavit or proof of payment had to be made before issuing the sign and then the notation of the word affidavit means something in this case it particularly means something in this case because the check for the thirty five dollars had been typed the day before april eighth and was likely visible for the clerk or the deputy clerk to see before payment that we had made to the workers compensation commission to get a copy of the letter that we sent to the commission which transmittal the check we believe based on the opinions in berrien jones that was not necessary to do more than they had and i d honor that there weren't affidavit is significant in this particular case and it should not be read out of the record it should not be read to be a mystery or that we can draw any meaning from it because i think again  inferences to be drawn from what that word means in light of the circumstances that the pill was commenced on time that the check had been cut the day before that the clerk of court was in fact satisfied that the payment had been made and you know true how is this case different from barry so why did you never do more group or i could answer their question by saying your honor that when the issue was brought to our attention as an officer of cornered i appeared at the circuit court by the time we the basis of this whole case here revolves around their prior ments of one thousand one that set forth the statutory requirements which are needed to be filled in order to her fact a review i think we workers compensation act covering process for seeking judicial review by filing both the request for summons with the circuit court and proof a payment of probable cost from hearing the records within the twenty days after receipt of notice of the system even though the proof and filed the proof of the payment the request for the summons was issued prior to the running of a twenty day period as in jones however in jones that attorney realized that they had accidentally left out a piece of add the ability that file an affidavit which happened long before the filing of this review an affidavit could have been piled on the case was stretches some of one thousand asked to fit into whether in as in barry they filed with the clerk of the court a copy of the letter and the check being sent to the commission and the clerk physically verified the check the street received before the twenty days that was found to be sufficient but still among all  e case law the twenty day period has been found to be ultimate a premium to be managed the presumption of subject matter jurisdiction is not available in the review compensation cases where the circuit courts exercising a specific statutory jurisdiction nine hundred one specifically lays out all elements that must be provided in order to back the review in and  to prove that it was received by the commission within twenty days so they lose the right to appeal to make the argument that we were not in the very technical legal ground we were deprived of or be in court because of very technical grounds in terms of barry so you know you shouldn't really do that where there was a technical oversight and your best argument against that is was that even in jones and barry were there distinguishing a technical oversight they still limit it to the twenty day time period and all the case law states that there must be physical actual proof in the record that that payment was made and i think the distinction here is the one that was made by your honour's in counsel's earlier arguments there's a distinction i believe between payment being issued and payment being made just because the check was dated april eighth two thousand and eight we have no way of knowing at this point in time based on the record at hand that the check was that the proverbial line in the sand has to be drawn in here it has to be drawn even to jones we don't have any proof of payment within twenty days correct that is why this work has to be drawn there has to be a definitive finite point beyond which you cannot go correct and i believe it works both ways on the respondent cycling to review the distinctions that have made in all the case law about what is required of a mind whose signature is sufficient isn't if it's not on that could lead to a reasonable inference that i am not aware of anything dated within the record that was presented that shows that the receipt of the check and or letter or other materials that were forwarded by mr escott all to the commission were the shows were received prior to the running the twenty days within the record not that i'm aware of the supreme court in their opinion states most significantly there has been no allegation of showing any prejudice to respond in or return date i do not know their attorney right offhand but i believe it was within the period and that's the purpose of this statute to make sure that the records file before the return date commission gets  that everything the state chief was designed to do was accomplished yes but still the case live among all of on easily fast jones all state that the record does have to demonstrate that the material provisions of the statute were all complied with within the time  that is missing here there is been broadened all over the the realm of all the case law and even in the act itself like i said with the the addition of affidavit however the twenty day time period has remained firm and on both sides  would cross the same same boundaries and the council made significant reference to the word affidavit being written on the summons that word was not written on the summons that was forwarded to respondent the first time that was seen was in view of the court records when we were looking for a proof of a receipt or an affidavit or anything else that statement is not initialed it's not dated we don't know that was but again an eventual document was made on only one of the documents not all of them and it's not an additional document being filed it's an amendment to a document and without an initial signature a date there's no reasonable inference as to that could be made as to when or where or who made that  approved have and i have known to include at the david in the act itself and the case law has brought in some order in which things can be obtained or what would surprise the twenty day limitation has not  been allowed to use to be to expire before those documents are received this was not met here with certainty there is no record there is no evidence in the record that shows distinguish the prior cases by saying that on why this case we're not only was applying the twenty day period but evidence to bring me to the commission was exhibited within the same twenty day period and my response would be two things number one they had the purpose of the act is to course payment in a timely fashion in your hypothetical the payment was made after the twenty days in this case let's be clear the payment was actually actually made no it of itself it doesn't we know that the record was received we know there was no prejudice we know all the material provisions of the act have been satisfied just this whole bridge mention that there is no remedy in one thousand nine hundred ninety one itself doesn't indicate what should happen if there isn't strict compliance with the act and one of your colleagues had indicated in both theory and jones where the supreme court's sad unless there's a clear statement by the legislature since the appellant or since if your worker has been given the right to appeal we're not going to take their right of appeal away on a technicality here a tie only appeal a check was sent the record was respondent know that we had mailed the check on april nineteenth included a copy of the wire that we sent to the commission along with everything that the commissioner received which included the check itself and a notation on the letter that the check was set and that letter is dated april