Otis Elevator Co. v. Indus. Comm'n

• Decision Date: 18 June 1919
• Docket Number: No. 12542.,12542.
• Parties: OTIS ELEVATOR CO. v. INDUSTRIAL COMMISSION et al.
• Court: Illinois Supreme Court

288 Ill. 396

123 N.E. 600

OTIS ELEVATOR CO.

v.INDUSTRIAL COMMISSION et al.

No. 12542.

Supreme Court of Illinois.

June 18, 1919.

Error to Circuit Court, Cook County; Oscar M. Torrison, Judge.

Proceedings under the Workmen's Compensation Act by Ernest J. Wayner, opposed by the Otis Elevator Company, employer. An award was confirmed by the Industrial Commission, affirmed by the circuit court on certiorari, and the employer brings error. Reversed and remanded, with directions.

John Clark Baker, of Chicago, for plaintiff in error.

William R. Jordan, of Chicago, for defendant in error.

STONE, J.

The circuit court of Cook county affirmed the award of the Industrial Commission of Illinois in favor of the defendant in error, Ernest J. Wayner, for injuries received by him while in the employment of the plaintiff in error.

The material facts in the case are stipulated by counsel for the respective parties in interest, to the effect that both parties were under the Workmen's Compensation Act (Hurd's Rev. St. 1917, c. 48, §§ 126-152h) and subject to its provisions, and that the injury on August 11, 1913, arose out of and in the course of the employment; that Wayner was under total disability, on account of said injury, from August 11, 1913, until March 15, 1914, at which time he returned to work for the plaintiff in error and continued to work thereafter for 6 weeks, at which time he was discharged; that compensation as provided by said act was paid by the plaintiff in error for such disability to March 15, 1914; that after Wayner's return to work he was unfit and unable to perform his usual services, and for that reason was directed to do other kinds of work during said 6 weeks; that at the end of the 6 weeks following March 15, 1914, Wayner had not fully recovered. Formal claim for compensation was filed with the Industrial Commission July 23, 1915, which date is within 18 months after Wayner's return to work for his original employer, the plaintiff in error. An award was made by the arbitrator in his favor in the sum of $1,500 for a period of total and a period of partial disability, which was confirmed, on review, by the Industrial Commission. The circuit court of Cook county on certiorari affirmed the award, entered judgment therefor, and directed the issuance of an execution for its enforcement.

It is contended by plaintiff in error that the claim for compensation, having been filed more than 6 months subsequent to the last payment of compensation, is barred by the limitation of the Workmen's Compensation Act; that the claimant was not continuously in the employment of the plaintiff in error for 18 months subsequent to his return to work, and therefore the limitation provision of the statute is not applicable under the facts in this case; that the circuit court erred in entering judgment on the award and directing that execution issue thereon. It is contended by the defendant in error, Ernest J. Wayner, that having returned to work for the original employer, even though at a different kind of work, the provisions of paragraph (d) of section 8 of the Workmen's Compensation Act apply to this case, although claimant did not continuously remain in the employment for the period of 18 months subsequent to such return.

It is urged by plaintiff in error in support of his first contention that the Legislature intended by paragraph (d) of section 8 of the Workmen's Compensation Act that the limitation of 18 months for filing claim, where the employé has returned to the service of the employer by whom he was employed at the time of the injury, should apply only to those cases where the employé remained in the employmnt of said employer during the period of 18 months, and in the event of his leaving such employment within that time that claim for compensation must be filed within 6 months from the date on which he left such employment, contending that under such circumstances section 24 of the act should apply. Section 24, in so far as it refers to said question, is as follows:

‘No proceedings for compensation under this act shall be maintained unless notice of the accident has been given the employer as soon as practicable, but not later than thirty days after the accident. In cases of mental incapacity of the employé, notice must be given within six months after such accident. No defect or inaccuracy of such notice shall be a bar to the maintenance of proceedings by arbitration or otherwise by the employé, unless the employer proves that he is unduly prejudiced in such proceedings by such defect or inaccuracy. Notice of the accident shall in substance apprise the employer of the claim of compensation made and shall state the name and address of the employé injured, the approximate date and place of the accident, if known, and in simple language the cause thereof; which notice may be served personally or by registered mail, addressed to the employer at his last known residence or place of business: Provided, that the failure on the part of any person entitled to such compensation to give such notice shall not relieve the employer from his liability for such compensation, when the facts and circumstances of such accident are known to such employer, his agent or vice principal in the enterprise. No proceedings for compensation under this act shall be maintained unless claim for compensation has been made within six months after the accident, or in the event that payments have been made under the provisions of this act, unless written claim for compensation has been made, within six months after such payments have ceased.’

Paragraph (d) of section 8, in so far as it applies to the question here, reads as follows:

‘In the event the employé returns to the employment of the employer in whose service he was injured, the employé shall not be barred from asserting a claim for compensation under this act: Provided, notice of such claim is filed with the Industrial Board within eighteen months after he returns to such employment, and the said board shall immediately send to the employer, by registered mail, a copy of such notice.’

Plaintiff in error contends that if a strict construction be given to the words, ‘in the event the employé returns to the employment of the employer in whose service he was injured,’ it would follow that such employé might return in 5 years and still have 18 months thereafter in which to make claim and start proceedings, and that if such construction be given to paragraph (d) it becomes unconstitutional, as denying equal protection of the laws by making an arbitrary distinction between an employé who returns to the employment with his former employer and an employé who does not return to said employment, by giving the former 18 months in which to file his claim while the latter has but 6 months; that such distinction is not based on any real difference in the circumstances.

It is a fundamental rule of construction of statutes that the intention of the Legislature is to be sought and to be given effect where that can be done without...