Kaskaskia Constructors v. Industrial Commission

• Decision Date: 26 September 1975
• Docket Number: No. 47349,47349
• Citation: 337 N.E.2d 713,61 Ill.2d 532
• Parties: KASKASKIA CONSTRUCTORS, Appellant. v. The INDUSTRIAL COMMISSION et al. (Elvin L. Robertson, Appellee.)
• Court: Illinois Supreme Court

Page 713

337 N.E.2d 713

61 Ill.2d 532

KASKASKIA CONSTRUCTORS, Appellant. v. The INDUSTRIAL COMMISSION et al. (Elvin L. Robertson, Appellee.)

No. 47349.

Supreme Court of Illinois.

Sept. 26, 1975.

Rehearing Denied Nov. 21, 1975.

Keefe & DePauli, East St. Louis, for appellant.

Listeman, Bandy & Hamilton, Belleville (Charles E. Hamilton, Belleville, of counsel), for appellee.

GOLDENHERSH, Justice.

In a hearing before an arbitrator for the Industrial Commission, the parties stipulated that petitioner Elvin L. Robertson had suffered an accidental injury arising out of and in the course of his employment by respondent Kaskaskia Constructors, that workmen's compensation had been paid for a period of seven weeks and that the matters in dispute were whether petitioner's application for adjustment of claim had been timely filed and the nature and extent of petitioner's disability. The arbitrator found that the application for adjustment of claim had not been filed within one year of the date of the last payment of compensation and denied petitioner's claim. On review no additional evidence was offered and the case was submitted on the record made before the arbitrator. The Industrial Commission set aside the decision of the arbitrator, found that the disabling condition resulting from the injury was temporary and had not reached a permanent condition and entered an award pursuant to section 19(b) of the Workmen's Compensation Act (Ill.Rev.Stat.1969, ch. 48, par. 138.19(b)). On Certiorari the circuit court of St. Clair County confirmed the decision of the Industrial Commission and respondent appealed. Supreme Court Rule 302(a).

Petitioner was injured on June 18, 1971. Enclosed in a letter mailed by respondent on March 29, 1972, and received by petitioner the next day, was a draft in payment of temporary total workmen's compensation for the period from July 9, 1971, to August 27, 1971. On August 30, 1972, respondent's workmen's compensation insurance carrier paid a physician for treatment rendered petitioner on May 17, 1972, and June 23, 1972. In February, 1973, petitioner was advised by his physician that surgery was necessary to remedy the condition caused by the injury and scheduled the surgery for April 10, 1973. Petitioner so advised the insurance carrier. Sometime in March 1973, two representatives of the insurance carrier came to petitioner's home and discussed the matter with him. A written statement was taken but it is not contained in the record. By letter dated March 29, 1973, and received by petitioner on April 2, 1973, the insurance carrier advised petitioner that it had concluded that his present complaints did not result from the injury suffered in June, 1971, and that it would not authorize or accept responsibility for additional medical treatment or pay any additional temporary total compensation. Petitioner's application for adjustment of claim was mailed on April 2, 1973, and filed with the Industrial Commission on April 3, 1973. An exhibit in evidence shows that on April 5, 1973, respondent's insurer paid the physician for services rendered petitioner on October 11 and December 27, 1972.

Respondent contends that the application for adjustment of claim was not filed within one year of the date of the last payment of compensation, that there has been no waiver of the statutory limitation, that the claim was untimely filed and is, therefore, barred. Citing Creel v. Industrial Com., 54 Ill.2d 580, 301 N.E.2d 275, petitioner contends that the claim, filed within one year of the August 30, 1972, payment by the insurance carrier of the medical bill, was timely filed and that respondent is estopped by its conduct from asserting the defense of limitations.

Section 6(c)(3) of the Workmen's Compensation Act provided in part:

'In any case, * * * unless the 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.1969, ch. 48, par. 138.6(c)(3).

The Act furthermore provided that the furnishing of medical services is not the payment of compensation. (Ill.Rev.Stat.1969, ch. 48, par. 138.8(a).) The only and last payment of compensation to petitioner was made on March 30, 1972, the date he received the draft. (Consolidated Freightways v. Industrial Com., 48 Ill.2d 221, 269 N.E.2d 291.) Creel v. Industrial Com., 54 Ill.2d 580, 301 N.E.2d 275, is not in point for the reason that the payment made in that case invoked the provisions of section 8(j) of the Act.

Petitioner argues that the representatives of respondent's insurer did not indicate any disapproval of his claim and that in notifying him of its disclaimer by a letter deliberately calculated to reach him after the limitations period had run it engaged in conduct which estopped respondent from asserting the defense of limitations. He argues that under Pope v. Industrial Com., 53 Ill.2d 560, 293 N.E.2d 585, the decision of the Industrial Commission is correct and the judgment should be affirmed.

The resolution of disputed questions of fact is primarily the...