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06/16/94 WELDON GALIHER v. INDUSTRIAL COMMISSION ET

June 16, 1994

WELDON GALIHER, APPELLEE,
v.
THE INDUSTRIAL COMMISSION ET AL. (WAYNE-WHITE COUNTIES ELECTRIC CO-OP, APPELLANT).



Appeal from the Circuit Court of Wayne County. No. 92 MR 15. The Honorable Donald E. Garrison, Judge Presiding.

Rakowski, McCULLOUGH, Woodward, Slater

The opinion of the court was delivered by: Rakowski

JUSTICE RAKOWSKI delivered the opinion of the court:

The employee, Weldon Galiher (claimant), filed an application for adjustment of claim pursuant to the Workers' Compensation Act (Act) (Ill. Rev. Stat. 1985, ch. 48, par. 138.1 et seq.) alleging that he sustained accidental injuries on February 10, 1983, arising out of and in the course of his employment with Wayne-White Counties Electric Co-Op (employer). The arbitrator denied compensation finding that claimant's application for adjustment of claim was barred by the statute of limitations. (Ill. Rev. Stat. 1985, ch. 48, par. 172(c).) The arbitrator's finding was affirmed by the Industrial Commission (Commission), and claimant appealed the decision of the Commission to the circuit court of Wayne County. The circuit court subsequently issued an order finding that the decision of the Commission was against the manifest weight of the evidence and that the employer was estopped from asserting the statute of limitations as a defense to claimant's application for adjustment of claim.

The issue on appeal is whether the circuit court erred in ruling that the employer was estopped from asserting the statute of limitations. We reverse.

The claimant worked for the employer as a lineman. On February 10, 1983, he injured his left arm, right shoulder, and hip while reaching to place wires on the top of a new pole. Following treatment of his injuries, claimant returned to work on July 11, 1983. During the time the claimant was off work and receiving treatment, the employer paid temporary total disability benefits and medical expenses. On September 6, 1984, the claimant met with a representative ofthe employer's workers' compensation insurance carrier. At this first meeting they discussed the condition of the claimant's arm and his need to return to his doctor for further treatment or evaluation. No settlement offers were extended, and there was no Discussion regarding the length of time the claim would remain viable. A second meeting took place in November 1984, but again no settlement offers were made.

In May 1985, there was a third meeting which was attended by the claimant, the employer's manager, Bill Endicott, and the insurance company's representative, Major Drake. At that time, the insurance company representative extended a settlement offer which was reduced to writing. The offer sheet indicated in two places that the offer would remain open until February 9, 1986. Major Drake also testified that the three-year statute of limitations was discussed with the claimant, as well as claimant's options. However, the claimant testified that there was no reference to the statute of limitations on the offer sheet nor was he verbally informed of the limitations period by Major Drake.

The claimant testified that it was agreed by the insurance company that claimant would see Dr. Weber, his treating physician, regarding the possibility of additional surgery before accepting the settlement offer. Claimant further stated that he was told by Major Drake that the settlement offer was "guaranteed" and that Major Drake would be back to see him in November or December to get the results of claimant's appointment with the doctor. However, claimant stated that Major Drake never contacted him. The claimant testified that he tried to make an appointment for January 3, 1986, but that the appointment had to be rescheduled due to the holidays and that he did not actually see Dr. Weber until February 24, 1986. However, according to Dr. Weber's records, the claimant had an appointment scheduled for January 3, 1986, but did not appear on that date. After claimant's appointment with Dr. Weber, the insurance company was contacted regarding the results. The insurance company sent back a correspondence stating that there could be no settlement because the statute of limitations had expired. Claimant subsequently filed an application for adjustment of claim with the Commission on September 19, 1986.

The employer contends that the circuit court erred in reversing the decision of the Commission and ruling that the employer was estopped from asserting the statute of limitations because the claimant was informed of the limitation period and was not otherwise misled by the insurance company.

We first note that, contrary to claimant's assertion, the issue inthis case is a fact question. Not only is there a factual dispute regarding the conversation between Major Drake and the claimant, but more than one Conclusion could be drawn from the facts. An issue is one of law only when undisputed facts are susceptible to a single inference. ( Herlihy Mid-Continent Co. v. Industrial Comm'n (1993), 252 Ill. App. 3d 211, 215, 625 N.E.2d 108, 192 Ill. Dec. 148; Fischer v. Industrial Comm'n (1986), 142 Ill. App. 3d 298, 303-04, 491 N.E.2d 1333, 96 Ill. Dec. 873.) Therefore, because the issue sub judice is a factual one, the decision of the Commission can only be reversed if it is against the manifest weight of the evidence.

In Dexheimer v. Industrial Comm'n (1990), 202 Ill. App. 3d 437, 442-43, 559 N.E.2d 1034, 1037, 147 Ill. Dec. 694, the court stated:

"It is the province of the Commission to weigh and resolve conflicts in testimony, including medical testimony, and to choose among conflicting inferences therefrom. [Citations.] It is only when the decision of the Commission is without substantial foundation in the evidence or its finding is manifestly against the weight of the evidence that the findings of the Commission should be set aside."

(See also O'Dette v. Industrial Comm'n (1980), 79 Ill. 2d 249, 253, 403 N.E.2d 221, 223-24, 38 Ill. Dec. 133.) "A reviewing court cannot reject or disregard permissible inferences drawn by the Commission because different or conflicting inferences may also be drawn from the same facts nor can it substitute its judgment for that of the Commission unless the Commission's findings are against the manifest weight of the evidence." ( Martin v. Industrial Comm'n (1992), 227 Ill. App. 3d 217, 219, 591 N.E.2d 108, 109, 169 Ill. Dec. 228.) It has been observed: 'That "the manifest weight of the evidence is that which is "the clearly evident, plain and indisputable weight of the evidence." (Citations.) In order for a finding to be contrary to the manifest weight of the evidence, an opposite Conclusion must be clearly apparent. (Citation.)'" ( Drogos v. Village of Bensenville (1981), 100 Ill. App. 3d 48, 53, 426 N.E.2d 1276, 1281, 55 Ill. Dec. 902 (quoting In re Application of County Collector (1978), 59 Ill. App. 3d 494, 499, 375 N.E.2d 553, 557, 16 Ill. Dec. 680).) Finally, "'if the undisputed facts permit an inference either way, * * * then the Commission alone is empowered to draw the inference and its decision as to the weight of the evidence will not be disturbed on review.'" Morgan Cab Co. v. Industrial Comm'n (1975), 60 Ill. 2d 92, 97, 324 N.E.2d 425, 428 (quoting Greenberg v. Industrial Comm'n (1961), 23 Ill. 2d 106, 108, 178 N.E.2d 646, 647).

The claimant's position is that the circuit court properly ruled that the employer is estopped from asserting the statute of limitations because the claimant relied on the acts and representations ofthe insurance company to his detriment and had no way of knowing the true facts. (See Pantle v. Industrial Comm'n (1975), 61 Ill. 2d 365, 335 N.E.2d 491.) The acts and representations of the insurance company which the claimant argues that he was misled by were that the settlement offer was guaranteed, that the parties agreed to a final medical examination to determine if more surgery was needed, and that the offer would remain open until after the medical evaluation was completed. The claimant further states that he was never notified that settlement negotiations were terminated ...


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