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Creel v. Industrial Com.

OPINION FILED JUNE 4, 1973.

ALVIS CREEL, APPELLANT,

v.

THE INDUSTRIAL COMMISSION ET AL. — (LIPSETT STEEL CO., APPELLEE.)



APPEAL from the Circuit Court of Peoria County; the Hon. EDWARD E. HAUGENS, Judge, presiding.

MR. JUSTICE GOLDENHERSH DELIVERED THE OPINION OF THE COURT:

Rehearing denied September 27, 1973.

Petitioner, Alvis Creel, appeals from the judgment of the circuit court of Peoria County confirming the decision of the Industrial Commission which had affirmed the decision of the arbitrator dismissing petitioner's application for adjustment of claim for the reason that it was not filed within one year of the date of the accident out of which his claim arose.

The record shows that on January 14, 1964, while petitioner was employed by respondent, Lipsett Steel Company, a piece of steel fell from a crane and struck him on the head. He was rendered unconscious, and was taken to a hospital where a wound on his head was sutured, and he was released. Approximately six months later he "blacked out" and continued to have intermittent "blackouts" until he was hospitalized on December 7, 1967. He had continued to work for respondent until October 1967, was off until July 1968, when he worked for three weeks, and has not worked since. During the period from 1964 to 1968 he had seen various physicians and at the time of the hearing was still suffering the symptoms described in his testimony.

When petitioner received a bill from the hospital where he was confined in December 1967, he took it to respondent's plant superintendent and was told that if he would "pay up" his half of the premium due under a group insurance policy which covered respondent's employees, the superintendent would attempt to have the insurance company pay the hospital bill. The premiums for the group insurance were paid one half by respondent and one half by the individual employees. The hospital bill was paid by the insurance carrier on January 30, 1968.

It is the petitioner's contention that under the provisions of section 8(j) of the Workmen's Compensation Act (Ill. Rev. Stat. 1967, ch. 48, par. 138.1 et seq.), the time for the filing of an application of adjustment of claim was extended to one year from the date of the payment of the hospital bill and that his application was timely filed.

At all times pertinent to this case section 6(c) of the Workmen's Compensation Act provided:

"In any case, other than one where the injury was caused by exposure to radiological materials or equipment 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. 1967, ch. 48, par. 138.6(c).

At all pertinent times section 8(j) provided:

"(j) 1. In the event the injured employee shall receive benefits, including medical, surgical or hospital benefits under any group plan covering non-occupational disabilities contributed to wholly or partially by the employer, which benefits should not have been payable if any rights of recovery existed under this Act, then such amounts so paid to said employee from any such group plan as shall be consistent with, and limited to, the provisions of Paragraph 2 hereof, shall be credited to or against any compensation payment for temporary total incapacity for work or any medical, surgical or hospital benefits made or to be made under this Act. In such event, the period of time for giving notice of accidental injury and filing application for adjustment of claim shall not commence to run until the termination of such payments. This paragraph shall not apply to payments made under any group plan which would have been payable irrespective of an accidental injury under this Act. Any employer receiving such credit shall keep such employee safe and harmless from any and all claims or liabilities that may be made against him by reason of having received such payments only to the extent of such credit." Ill. Rev. Stat. 1967, ch. 48, par. 138.8(j).

The parties are in agreement that the group insurance program under which petitioner's hospital bill was paid was a benefit which "should not have been payable if any rights of recovery existed" under the Workmen's Compensation Act, and there is no question that petitioner's application for adjustment of claim was filed within one year of the date of payment of the hospital bill.

In support of his contention petitioner cites Caterpillar Tractor Co. v. Industrial Com., 33 Ill.2d 78. In Caterpillar the employee was injured on September 23, 1957, and lost no time from work until four years later, when he developed difficulties. At that time he was off work for approximately four months and "during that time received payments under a group insurance plan covering nonoccupational disabilities." (33 Ill.2d 78, 80.) He filed an application for adjustment of claim, the Industrial Commission awarded compensation, and the circuit court confirmed the decision of the Commission.

In rejecting the employer's contention that section 8(j) was not intended to revive claims which had been barred by section 6(c) prior to the payment of benefits, the court in Caterpillar said: "Despite the plausibility of the company's argument we find no warrant for its position in the language of the statute. It is true that the presumed policy or purpose of the legislature may well be to restrict the operation of the provision to cases where the one-year period has not yet expired when the payments are begun. But the statute does not say so. Its language is plain that the period for filing claims `shall not commence to run until the termination of such payments.' This all-inclusive language is similar to that in section 6, which says a claim may be made `within 1 year after the date of the last payment of compensation, where any has been paid.' * * * The legislative language is clear and unequivocal, and in such cases the intent must be ascertained from the language itself. There is no room to read into it a qualification or proviso that payments of non-occupational benefits be started within the one-year period prescribed by section 6." 33 Ill.2d 78, 81-82.

Respondent contends that this case is distinguishable from Caterpillar because in that case the group benefits which the employee received included weekly indemnity benefits. Assuming, arguendo, that the employee in Caterpillar did receive weekly benefits, it is clear from the statute that "benefits" included payment of ...


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