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George Young & Sons, Inc. v. Ind. Com.

OPINION FILED APRIL 5, 1977.

GEORGE YOUNG & SONS, INC., ET AL., APPELLEES,

v.

THE INDUSTRIAL COMMISSION ET AL. — (RAYMOND E. MILLER, APPELLANT.)



Appeal from the Circuit Court of Peoria County; the Hon. Charles Iben, Judge, presiding.

MR. JUSTICE DOOLEY DELIVERED THE OPINION OF THE COURT:

Here the issue is whether a misrepresentation made by a claim agent will estop the assertion of the defense of the statute of limitations provided by section 6(c)(3) of the Workmen's Compensation Act (Ill. Rev. Stat. 1969, ch. 48, par. 138.6(c)(3)).

In a proceeding under the Act, claimant, Raymond E. Miller, received an award for an injury occurring on January 12, 1970, when, working as a painter, he fell from a ladder and suffered a comminuted fracture in the heel bone of each foot. The treating doctor made reports to Travelers Insurance Company, his employer's insurance company, throughout the year 1970, in which he discussed the claimant's injury as "severe heel fractures" and observed that the condition should result in "more disability." The insurer also had a copy of claimant's hospital records, which described his condition, as well as treatment. Claimant continued to receive independent medical attention until March 1973. Then the prognosis, according to the medical evidence, was not good, and claimant would eventually require a fusion of one or both ankle joints with subsequent disability of four to six months.

On January 29, 1971, claimant discussed his injury with a representative of Travelers Insurance Company. The claim agent consulted a small booklet, and after looking at it, incorrectly advised claimant that $3,309.24 was the maximum figure for his disability. Claimant accepted this representation as true and signed a receipt. The settlement was not approved by the Industrial Commission. There were no later payments. Claimant did not file his application for adjustment of claim until November 1, 1972, more than one year later. He had retained an attorney at the suggestion of a treating doctor.

The employer and Travelers filed a motion to dismiss, raising the limitations defense. The arbitrator did not expressly rule on the motion, but implicitly denied it by proceeding to a hearing and decision on the merits of the claim. The employer and Travelers did not present any evidence at the hearing, but stood on their motion to dismiss. Accordingly, claimant's evidence stood uncontradicted. Claimant's contention is that respondents are estopped to raise the limitations defense because of his conversation with a claim agent for Travelers in January 1971.

In a letter to claimant's attorney, the insurance company stated that the $3,309.24 paid claimant was based on assumed 17 1/2% loss of use of the left foot and of the right foot. The arbitrator, on the other hand, found that the permanent loss of use of the left foot was 40% and that of the right foot 30%. The arbitrator also found that claimant was entitled to receive an additional sum of $5,674.50 over and above the amount already received. The Industrial Commission affirmed the arbitrator's award, but the circuit court reversed the award on the basis of the statute of limitations.

Incisively in point is Kaskaskia Constructors v. Industrial Com. (1975), 61 Ill.2d 532, wherein this court stated in a similar situation:

"Petitioner's uncontroverted testimony shows that the representatives of respondent's insurance carrier discussed his claim with him and did not advise him that the limitations period was about to run. The fact that petitioner withheld filing an application for adjustment of claim until receipt of the letter denying liability would support a finding that petitioner relied upon the conduct of the insurance carrier's representatives. Implicit in the decision of the Industrial Commission is the finding that by this conduct respondent was estopped to assert the defense of limitations and we cannot say that the finding is against the manifest weight of the evidence." (61 Ill.2d 532, 535.)

Here we agree that the award of the Industrial Commission is not contrary to the manifest weight of the evidence.

Again, in Pope v. Industrial Com. (1973), 53 Ill.2d 560, claimant was injured on November 17, 1960. She received temporary, total disability payments until January 6, 1962. She did not file an application for adjustment of claim until March 6, 1963, although section 6(c) of the Workmen's Compensation Act (Ill. Rev. Stat. 1959, ch. 48, par. 138.6(c)) required the filing of such application within one year from the date of the last payment of compensation.

The Act further provides that the furnishing of medical services is not the payment of compensation (Ill. Rev. Stat. 1975, ch. 48, par. 138.8(a)). In Pope, the Industrial Commission made these 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 ...


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