Railway Exp. Agency v. Industrial Commission
| Citation | 415 Ill. 294,114 N.E.2d 353 |
| Decision Date | 20 May 1953 |
| Docket Number | No. 32612,32612 |
| Parties | RAILWAY EXP, AGENCY v. INDUSTRIAL COMMISSION et al. |
| Court | Supreme Court of Illinois |
Henry I. Green, Oris Barth, Darius E. Phebus, and Hurshal C. Tummelson, Urbana, for plaintiff in error.
Donald M. Reno and J. Michael O'Byrne, Champaign, for defendant in error.
On November 24, 1948, Eugene P. Aylward filed with the Industrial Commission his application for adjustment of claim for an accidental injury which he alleged arose out of and in the course of his employment with Railway Express Agency on November 26, 1947. Immediately before the taking of evidence before an arbitrator on April 10, 1951, claimant made a motion to amend his application. The motion, seeking to amend only the date of the alleged injury to read August 20, 1948, instead of November 26, 1947, was allowed and an order entered amending the application. Although the employer received notice of the presentation of the motion, it did not interpose any objection to the amendment. The hearing proceeded as soon as the application was amended. Evidence was heard, and the arbitrator awarded claimant compensation benefits for complete disability. The Industrial Commission sustained the arbitrator's award, and the circuit court of Champaign County confirmed the decision of the commission. We have allowed the employer's petition for writ of error.
Claimant testified that on November 26, 1947, while working as a truck driver for Railway Express Agency in Champaign, he bumped his head against the roof of his truck. He experienced sharp pain. The pain recurred, particularly on Christmas day of 1947. After consulting several physicians about this head pain, claimant went to a clinic in Champaign where a diagnosis of osteomyelitis of the skull was made on April 1, 1948. In May of 1948, he underwent surgery, and the infected portion of the bone was removed. About one month later, a second operation was performed for the purpose of placing a metal plate in claimant's head. After his own doctor granted him permission to return to work, claimant submitted to an examination by the employer's doctor and returned to his regular duties on August 5, 1948. Fifteen days later, on August 20, claimant again bumped his head while carrying some bundles. Immediately after the blow, the metal plate was exposed on the left side of claimant's head. A clear, colorless fluid began to drain from the open wound. Claimant was taken to a hospital by Flowers, the employer's local superintendent. The employer thus had knowledge of this accidental injury. While enroute to the hospital, claimant made claim for workmen's compensation benefits upon his employer by making demand upon Flowers. Several unsuccessful efforts were made to aid the re-healing around the plate, and eventually the plate was removed. Claimant has not been refitted for a plate and apparently will not be refitted. After the second blow on August 20, 1948, more bone was cut away to remove additional infected area. Claimant's head has healed over but the metal plate cannot be reinserted because of the enormous size of the defect and the development of too much scar tissue.
The employer's principal contention is that the Industrial Commission lacked jurisdiction to award benefits for the injury suffered on August 20, 1948, because no application for adjustment of claim for injuries received on that day was filed within one year. Section 24 of the Workmen's Compensation Act in force on August 20, 1948, (Ill.Rev.Stat.1947, chap. 48, par. 161,) so far as relevant, provided that 'No proceedings for compensation under this Act shall be maintained unless notice of the accident has been given to the employer as soon as practicable, but not later than thirty days after the accident, * * * provided, no proceedings for compensation under this Act shall be maintained unless claim for compensation has been made within six months after the accident, Provided, that in any case, unless application for compensation is filed with the Industrial Commission within one year after the date of the accident, where no compensation has been paid, * * * the right to file such application shall be barred'.
This court has repeatedly announced that notice of the accident within thirty days and the making of a claim for compensation within six months after the accident are each jurisdictional and prerequisite to the right to maintain a proceeding under the Workmen's Compensation Act. Ferguson v. Industrial Comm., 397 Ill. 348, 74 N.E.2d 539; Burke v. Industrial Comm., 368 Ill. 554, 15 N.E.2d 305, 119 A.L.R. 1152; Lewis v. Industrial Comm., 357 Ill. 309, 192 N.E. 212. Here, these two statutory conditions precedent to a recovery were satisfied by claimant giving immediate notice of the accident to his employer's superintendent and by making demand forthwith upon him for compensation benefits. Corn Products Refining Co. v. Industrial Comm., 402 Ill. 250, 83 N.E.2d 732. And the employer in its brief concedes that 'There was notice to, and a claim made of, the employer, for the August 20, 1948, bump.' The employer contends, however, that claimant failed to meet the third statutory prerequisite, namely, the filing of an application for compensation within one year after the date of the injury.
As we have observed, the employer did not interject its objection to the amendment but rather participated freely in the hearing on the amended application for compensation. Necessarily, the first question concerns the possibility of waiver. The employer asserts that the filing of the application within the statutory period is jurisdictional in the sense that the requirement cannot be waived and, indeed, can be raised for the first time in this court. In support of this proposition, the employer refers to cases where objections based upon section 24 were made before the arbitrator, International Harvester Co. v. Industrial Comm., 410 Ill. 543, 103 N.E.2d 109; Ferguson v. Industrial Comm., 397 Ill. 348, 74 N.E.2d 539; Burke v. Industrial Comm., 368 Ill. 554, 15 N.E.2d 305, 119 A.L.R. 1152, and cases indicating that notice or claim within the prescribed period cannot be waived. American Car & Foundry Co. v. Industrial Comm., 335 Ill. 322, 167 N.E. 80; Ridge Coal Co. v. Industrial Comm., 298 Ill. 532, 131 N.E. 637; Bushnell v. Industrial Board, 276 Ill. 262, 114 N.E. 496. The first cases hold only that a failure to comply with section 24 will defeat recovery where that failure was pointed out in a timely fashion. And as to the latter group of cases, whatever the rule may be with respect to the failure to give initial notice or to make proper demand for compensation, consistency in this area of the law and the language of section 24 require a different rule as to the filing of an application for compensation where proper notice and demand for compensation have been given.
Initially, we note that the statutory treatment afforded the three statutory prerequisites (1) notice of injury, (2) claim for compensation, and (3) application for compensation, is not the same. While the statute provides that 'No proceedings for compensation under this Act shall be maintained unless' notice is given and claim is made within the statutory periods, the effect of the failure to file a timely application is stated in these words: 'the right to file such application shall be barred'. This is the language of limitations, not of jurisdiction.
Several cases suggest that the statutory prerequisite of the filing of an application can be waived. Thus, in Tribune Co. v. Industrial Comm., 290 Ill. 402, 125 N.E. 351, 353, it appears that claimant sustained an injury to his left knee on August 23, 1915, and received compensation for but two months. Eighteen months after his accident, claimant and the employer entered into a settlement contract which the commission confirmed. On July 23, 1918, the employee filed a petition for review with the commission alleging that his injury had recurred and increased and had produced derangement of the hip and other injuries. The commission made an award in favor of the employee. The employer contended that the commission was without jurisdiction to entertain or to approve the claim because the employee had...
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