Galiher v. Industrial Com'n, 5-93-0307WC

• Decision Date: 16 June 1994
• Docket Number: No. 5-93-0307WC,5-93-0307WC
• Parties: , 200 Ill.Dec. 861 Weldon GALIHER, Appellee, v. The INDUSTRIAL COMMISSION et al. (Wayne-White Counties Electric Co-op., Appellant).
• Court: United States Appellate Court of Illinois

Page 52

636 N.E.2d 52 263 Ill.App.3d 471, 200 Ill.Dec. 861 Weldon GALIHER, Appellee,
v.
The INDUSTRIAL COMMISSION et al. (Wayne-White Counties
Electric Co-op., Appellant). No. 5-93-0307WC. Appellate Court of Illinois,
Fifth District. June 16, 1994.

[263 Ill.App.3d 472] [200 Ill.Dec. 862]

Page 53

Thomas H. Kuergeleis, Keefe & De Pauli, P.C., Fairview Heights, for appellant.

William L. Wimmer, Wimmer, Stiehl & Montalvo, P.C., Belleville, for appellee.

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. 172.41(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 of [263 Ill.App.3d 473] the 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...