City of Chicago v. Industrial Commission, 50513

• Decision Date: 03 April 1979
• Docket Number: No. 50513,50513
• Citation: 388 N.E.2d 406,75 Ill.2d 270,26 Ill.Dec. 691
• Parties: , 26 Ill.Dec. 691 The CITY OF CHICAGO, Appellant, v. The INDUSTRIAL COMMISSION et al. (Maria D. Pagan, Appellee.)
• Court: Illinois Supreme Court

Page 406

388 N.E.2d 406

75 Ill.2d 270, 26 Ill.Dec. 691

The CITY OF CHICAGO, Appellant, v. The INDUSTRIAL COMMISSION et al. (Maria D. Pagan, Appellee.)

No. 50513.

Supreme Court of Illinois.

April 3, 1979.

Van Duzer, Gershon, Jordan & Petersen, Chicago (John B. Van Duzer and Horace W. Jordan, Chicago, of counsel), for appellant.

Thomas G. Cronin, Chicago (Carolyn C. Whittington, of counsel), for appellees.

WARD, Justice:

On December 23, 1970, the claimant, Maria D. Pagan, was injured in the course of her employment with the respondent, the city of Chicago. She filed an application for adjustment of claim on September 1, 1972. The arbitrator awarded the claimant benefits for permanent and total disability. The award was affirmed by the Industrial Commission, and the circuit court of Cook County confirmed the decision of the Commission. This appeal followed.

On the date of the accident, section 6(c)(3) of the Workmen's Compensation Act (Ill.Rev.Stat.1969, ch. 48, par. 138.6(c)(3)) provided that a claim for compensation must be filed within one year after the date of the accident, or within one year after the date of the last payment of compensation where any has been paid. Effective July 1, 1975, section 6(c)(3) was amended to enlarge the limitation period from one year to three years. (1975 Ill.Laws 224, 238-39.) The hearing before the arbitrator commenced January 30, 1974, and although his decision was not rendered until August 22, 1975, it is not clear from the record that the claimant, either before the arbitrator or at the hearing on review, contended that the proceeding was controlled by the three-year period established by the amendment. Subsequent to the decisions below, this court filed its opinion in Arnold Engineering, Inc. v. Industrial Com. (1978), 72 Ill.2d 161, 20 Ill.Dec. 573, 380 N.E.2d 782, which held that the amendment to section 6(c)(3) was not retroactive. The claimant's application here is thus governed, as she concedes, by the one-year limitation period in effect at the time of the accident.

The claimant contends, however, that on May 31, 1972, she received a check from the respondent which constituted a payment of compensation and that her claim was therefore timely filed. The claimant also contends that the respondent was in any event estopped to plead the limitation period because of statements allegedly made to her in 1971 by four employees of the respondent that the respondent would pay compensation. In his decision the arbitrator made a finding that the claimant had been paid a sum on account of her injury, but he made no reference to the question of estoppel.

The claimant was employed by the Chicago Committee on Urban Opportunity, an agency of the respondent, as a community representative, a job which entailed house calls. On December 23, 1970, she was driven to an address in Chicago in a minibus owned by the respondent and driven by one of its employees. After the claimant had alighted and was proceeding around the rear of the car, the driver backed the car up, striking the claimant, knocking her to the ground, and allegedly causing an injury to her back.

Following the accident the claimant was taken to the South Chicago Community Hospital for emergency treatment. She was discharged about three hours later, and went home. She returned to her employment January 8, 1971. Between the accident and her return to work the claimant was absent for nine working days. She continued to work for the respondent, performing the same work as before her accident, until May 3, 1972, when she was admitted to Mercy Hospital, where an operation on her back was performed. The claimant stayed in the hospital two months, and did not return to work with the respondent after her discharge from the hospital. An expert witness for the respondent testified that the condition for which the operation on the claimant was performed was a congenital one and not related to her accident.

We turn first to the contention that the respondent made a payment of compensation to the claimant on May 31, 1972. The alleged payment was in the amount of $22.05 and was made by a check delivered to the claimant while she was in Mercy Hospital. An employee of the respondent familiar with the claimant's work records testified that the payment was for a day of vacation earned that month. The witness testified that under the respondent's regulations such payments were made without regard to whether the recipient had received a compensable injury. There was no evidence that the claimant had been paid for the days of work she lost while she was hospitalized at Mercy, and she herself admitted on cross-examination that this check was not for workmen's compensation. The finding of the arbitrator on this point was clearly unsupported by the evidence and cannot stand. International Harvester Co. v. Industrial Com. (1951), 410 Ill. 543, 103 N.E.2d 109; Cf. Wise v. Industrial Com. (1965), 32 Ill.2d 375, 376-77, 205 N.E.2d 451. The claimant's evidence with respect to her claim of estoppel consisted of four conversations with employees of the respondent during the period from January through July 1971. Each conversation was initiated by an inquiry on the part of the claimant. None of the employees referred to were called as witnesses by either side, nor was there any evidence offered as to what their duties may have been with respect to claims for compensation.

The first of these conversations, on January 9, was with Mrs. Miller, whom the claimant identified as "chief clerk" of the department where the claimant worked. The claimant testified that she told Mrs. Miller that she had been hurt and had gone to a hospital, and asked whether the respondent was going to pay the bill and to pay her for the time that she was off. Mrs. Miller said that the respondent would "take care." At Mrs. Miller's suggestion the claimant then called Mrs. Lyons, an employee understood by claimant to handle insurance matters, and had a similar conversation. A short time thereafter the claimant approached Mrs. Vanna, who had replaced Mrs. Miller, and, after complaining of pains in her back and leg, inquired again whether the respondent was going to pay her for the time she had lost and for the doctor and hospital bills, to which Mrs. Vanna said, "Yes, we'll take care." In July 1971, the claimant had a similar conversation with Mrs. Hickman, who had now replaced Mrs. Vanna. Mrs. Hickman also stated that the respondent would "take care" of her. At Mrs. Hickman's suggestion the claimant spoke again to Mrs. Lyons. The conversation was testified to as follows:

"I called her and I told her that I was still hurt, my leg was almost dead, maybe I need an operation, what they going to do; and she said if you are under treatment we would take care, keep your doctor, go see him."

During the period when these conversations took place, as the claimant admitted on cross-examination, she was told that the respondent had paid the bill from South Chicago Community Hospital. No medical bills were submitted for payment to the respondent, and there was no evidence that the respondent had paid wages to the claimant for the time when she was absent from work, although she had been paid for two days of sick leave to which she had already become entitled under the terms of her employment.

The extent to which the claimant was being treated by a physician at this time is disputed. The claimant testified that she had been under the care of a Dr. Armando Abadin. Dr. Abadin had left the State, and did not testify. His office records relating to the claimant, which had been obtained by subpoena, did not show any treatment of her except for injuries sustained earlier in an automobile accident, not work-related, which took place August 22, 1970. In her testimony she testified that she had never been treated by Dr. Abadin for that accident.

A letter written for the claimant concerning her accident was sent to the newspaper column "Action Line" on May 24, 1972. It was introduced by the respondent as an admission against interest. The letter stated that the claimant had engaged a Chicago attorney to represent her in a possible suit against the respondent based on a claim that the driver of the city vehicle was inebriated at the time. The letter also stated, "I did not seek restitution for injuries because I was afraid that such would cause CCUO-Model Cities to fire me." The letter did not mention the conversations with the respondent's employees to which the claimant had testified; nor did it refer to any belief by her that the respondent had agreed to pay compensation. The claimant admitted in her testimony that no one employed by the respondent had ever threatened to discharge her if she should file a compensation claim.

The question of what circumstances are sufficient to estop a respondent from pleading the limitations period prescribed by section 6(c)(3) of the Act is one which has been before this court several times in recent years.

In some cases an agent of the employer or of its insurance carrier made a misrepresentation regarding a fact which would be pertinent to a decision by the claimant as to whether or when he should file an application. Pope v. Industrial Com. (1973), 53 Ill.2d 560, 293 N.E.2d 585, is illustrative. There the last payment of compensation had been made in January 1962. In April of that year the respondent mailed the claimant another check which was in payment for medical expenses, although neither the check nor the transmittal letter so showed. Under section 8(a) of the Act (Ill.Rev.Stat.1977, ch. 48, par. 138.8(a)) such a payment is not the payment of compensation, and therefore does not extend the time in which to file an application. When the claimant's attorney asked the employer's insurance adjuster whether the April payment had been for compensation, he was told that it was. If that representation had been true, the claimant would have...