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Pope v. Industrial Com.

OPINION FILED JANUARY 26, 1973.

ALICE POPE, APPELLANT,

v.

THE INDUSTRIAL COMMISSION ET AL. — (BAILEYVILLE GRADE SCHOOL DISTRICT NO. 46, APPELLEE.)



APPEAL from the Circuit Court of Ogle County; the Hon. JOHN DIXON, Judge, presiding. MR. JUSTICE SCHAEFER DELIVERED THE OPINION OF THE COURT:

Rehearing denied March 27, 1973.

This workmen's compensation case is before the court for the second time. In Pope v. Industrial Com. (1970), 45 Ill.2d 48, we remanded it to the Industrial Commission for clarification of its decision which had reversed the arbitrator's award and denied compensation to the claimant, Mrs. Alice Pope, on the stated ground that the accidental injury did not result in any permanent disability. On remand the Commission heard additional oral argument, made additional findings of fact, and again denied compensation, this time stating that it was "without jurisdiction because the Application for Adjustment of Claim was not filed within the time provided under section 6(c) of the Illinois Workmen's Compensation Act." (Ill. Rev. Stat. 1961, ch. 48, par. 138.6(c).) The circuit court of Ogle County affirmed, and the claimant has appealed.

On November 17, 1960, the claimant, a school teacher employed by the respondent, Baileyville Grade School District No. 46, slipped and fell while descending the stairs leading from the gymnasium of the school. Her lower spine struck a metal grating and she sustained serious injuries. During the seven years following the accident she was hospitalized on several occasions and underwent surgery on her back. She has been unable to work. There was medical testimony, uncontradicted, that she suffers from the residual effects of a ruptured lumbo sacral intervertebral spinal disc and bilateral nerve involvement and a severe case of traumatic neurosis, all caused by her fall on November 17, 1960, and that she is totally and permanently disabled from performing any type of remunerative work. The only question in the case is whether her claim for compensation is barred by section 6(c) of the Workmen's Compensation Act, which provides:

"In any case, unless application for compensation is filed with the Commission within 1 year after the date of the accident, where no compensation has been paid, or within 1 year after the date of the last payment of compensation, where any has been paid, the right to file such application shall be barred." Ill. Rev. Stat. 1961, ch. 48, par. 138.6(c).

Section 8(a) of the Act provides:

"The furnishing of any such [medical] services or appliances by the employer shall not be construed as the payment of compensation." Ill. Rev. Stat. 1961, ch. 48, par. 138.8(a).

The claimant received temporary total disability payments from the respondent's insurance carrier until January 6, 1962. Her application for compensation was not filed until March 6, 1963. The contention that the claim was not filed within the time prescribed has not been waived, and the question is whether the respondent is precluded by its conduct from relying upon the bar of the statute.

The Industrial Commission, on remand, made the following pertinent findings:

6. That the last payment of temporary compensation by the respondent was made by check issued January 8, 1962.

7. That in response to petitioner's written request, the respondent issued a draft in the amount of $96.94 to the petitioner for reimbursement of medical expenses; this draft did not constitute payment of temporary compensation benefits.

8. That subsequently, petitioner's attorney inquired of a representative of the respondent if this (the draft for $96.94) was the last compensation payment that she received and he said, `yes'.

9. That petitioner's attorney never saw nor attempted to see any drafts issued to the petitioner but relied on the conversation with the respondent's representative in filing the claim.

10. That an Application of Adjustment of Claim was filed in this cause on March 6, 1963, more than one year from the date of the last payment of temporary compensation.

11. That the respondent raised the defense of the statute of limitations at the initial hearing on arbitration in September of 1963 and ...


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