*1 “The defect here was not an in the informality execution of the bond but a failure to do which the act as a condition required precedent of a issuance writ of certiorari.” Peter H. Clark No. 483 v. Industrial Com. Lodge (1971), 48 Ill. 70. 2d
We therefore hold that the circuit court correctly dismissed the since it did not have jurisdiction due to the failure to file for writ petitioner’s of certiorari within the limit. prescribed 20-day Roebuck & Co. (Sears, v. Industrial Com. This (1971), App. 439.) conclusion renders it for us to consider unnecessary other matters raised petitioner.
The trial court’s order of dismissal affirmed.
Judgment affirmed. (No. 4810 0 al., SONS, INC.,
GEORGE YOUNG & et v. Appellees, et THE INDUSTRIAL COMMISSION al.—(Raymond Miller, E. Appellant.)
Opinion April filed *2 UNDERWOOD, JJ., dissenting. RYAN and Reardon, Ltd., Moehle, Smith & Day, Washington Moehle, O. (Melvin counsel), appellant. Noetzel, Peoria, for &
Baylor appellees. MR. DOOLEY delivered the JUSTICE court:
Here the issue is whether a made a claim will the assertion agent of the defense estop statute of limitations section provided by 6(c)(3) Workmen’s Act Compensation
par. 138.6(c)(3)). Act, a claimant, under the E. Raymond Miller, received an award for an injury occurring when, a he fell as from painter, working fracture in the heel and suffered a ladder comminuted each
bone of foot. doctor reports treating Travelers his insurance Insurance Company, employer’s 1970, in which discussed company, throughout the claimant’s “severe heel fractures” and injury the condition should result “more observed The insurer also had claimant’s disability.” copy condition, as records, his well as which described hospital treatment. continued receive independent medical attention until March 1973. Then prognosis, evidence, to the medical good, according fusion of or both claimant would eventually require four to six ankle with joints subsequent disability months. 29, 1971, claimant discussed his
On January injury with a of Travelers Insurance representative Company. booklet, a small after at claim consulted looking *3 it, $3,309.24 the advised that claimant was incorrectly maximum his Claimant accepted figure disability. for true and The settlement representation signed receipt. There was the Industrial Commission. not by approved did file his were later not no applica- payments. tion for of claim until November adjustment an at more than one later: He had retained attorney the of a doctor. treating suggestion dismiss, filed to and Travelers a motion
The employer did not the limitations defense. arbitrator raising motion, denied it rule the on but implicitly expressly the decision the merits of to and on hearing did not claim. The and Travelers present employer their motion to at stood on evidence the but hearing, evidence stood uncontra- dismiss. claimant’s Accordingly, are is that dicted. Claimant’s contention respondents his because of to raise the limitations defense estopped in a claim Travelers conversation with the insurance a letter claimant’s attorney, to $3,309.24 stated that the paid company left foot and assumed loss use based on 1714% arbitrator, hand, found the other the foot. The right left use of the foot was loss of 40% that the permanent also found The arbitrator and that of foot 30%. right an additional sum claimant was entitled receive that received. $5,674.50 over and above amount already award, affirmed arbitrator’s The Industrial Commission reversed the basis of but the circuit court award statute of limitations. Kaskaskia v. Indus in is Constructors
Incisively point this court stated trial Com. 61 Ill. wherein 2d (1975), in a similar situation: shows
“Petitioner’s uncontroverted testimony that the insurance representatives respondent’s not his claim him did carrier discussed with him was about advise that the limitations period to run. fact that withheld petitioner filing until of claim receipt adjustment application would letter denying liability support that relied conduct of finding upon petitioner the insurance carrier’s Implicit representatives. is the of the Industrial Commission
the decision this conduct finding of limitations assert defense estopped is we cannot say finding against evidence.” Ill. manifest 2d (61 weight 535.) of the Industrial Commission
Here we award agree of the evidence. manifest contrary weight v. Industrial Com. Again, Pope (1973), *4 17, 560, on 1960. She claimant was November injured until received total disability temporary, payments Janu 6, for She did not file an ary adjustment 1962. application 6, 1963, the until section of of claim March although 6(c) 48, ch. Act Workmen’s (Ill. Compensation the of such par. 138.6(c)) required filing application within one from the date of the last of year payment compensation. further Act the of provides furnishing
medical services not the of compensation payment Rev. St at. Pope, par. 138.8(a)). Industrial Commission these findings:
6. That the last of payment temporary compensation respondent was made check issued 1962. response petitioner’s
7. That in request, written respondent issued a draft in the amount of $96.94 expenses; petitioner reimbursement medical temporary payment did constitute this draft compensation benefits. attorney inquired subsequently, petitioner’s That
8. draft for respondent (the if this representative payment she $96.94) was the last said, ‘yes’. and he received attorney never saw nor at- petitioner’s That
9. petitioner but tempted to see drafts issued respondent’s repre- relied on the conversation with filing sentative claim. Application Adjustment That an Claim 10. 6, 1963, more than
filed in this cause March compen- of temporary from the date the last sation. raised defense
11. That hearing initial arbitration of limitations at the statute all times appropriate and at September of 1963 thereafter. juris is without That therefore Commission Adjustment Claim Application
diction because the 6(c) under Section provided filed within the time was not Ill. Compensation (53 Act.” of the Illinois Workmen’s 562-63.) at certiorari,
On the circuit court confirmed award. testified that Pope’s attorney adjuster told him $96.94 for her medical paid made, last expense al- compensation payment
225 Such it was reimbursement medical expenses. though unlike instant was the sole Pope, misrepresentation. situation, evidence to controvert introduced employer of the This set aside the claim. court findings petitioner’s to the manifest Industrial Commission contrary weight evidence, of the observing: all is thus clear of the elements
“It case. are in this necessary present estoppel The of a fact already was one representation it can hardly within the adjuster’s knowledge, be that he did not intend that it should supposed conclude, therefore, We that the be relied upon. Commission, order, its finding implicit was its by estopped conduct assert the was to defense limitations of the to manifest evidence.” contrary weight at 565. The here same compels misrepresentation result. the term is to While describe employed “estoppel” cases, it is such conduct in workmen’s more fraud. relied correctly species claimant was obvious upon by made with purpose inducing to follow certain course of conduct, namely, the amount offered without accept of the approbation Industrial Commission.
We note that section passing Act now par. provides: 138.23) “*** *** any employer who shall enter into purporting compromise or settle the compensation *** rights of employee an obtaining first without approval of the Industrial shall Commission as aforesaid be barred from raising the in any defense limitation subsequently brought employee, such personal representative beneficiary.” or This into introduced the Act provision 1, 1975, amendment which became effective after the July decision of the Commission the circuit court had been rendered, but before notice of court appeal
filed. Claimant’s brief does not amend- suggest should view we ment be here. In of our applicable holding need not consider that question. of the circuit court of Peoria is County judgment
reversed, and the award Industrial Commission reinstated. reversed; award reinstated.
Judgment RYAN, MR. dissenting: JUSTICE *6 of the court I from the primarily dissent opinion First, facts that are not the assumes three reasons. opinion Second, the in record. opinion ignores accepted have heretofore and waiver which principles estoppel the reasons not statutory been assigned adhering Third, cases. in limitation periods compensation end statute of limitations in effect creates an open opinion has established. an been once estoppel uses First, for its decision court as a basic premise the record not some conclusional supported language on several or either inferentially. factually and assumes occasions uses word “misrepresentation” Insurance that the claim for Travelers Company agent to the claimant and “incorrectly misrepresented something $3,309.24 was the maximum advised claimant figure to either is no evidence support for his There disability.” or had been made that a the conclusion that the advice was incorrect. 1970, the in claimant his January
Following injury He had 1970. been paid to on returned work September he returned until benefits Travelers weekly disability Watson, had of Dr. who He been under the care work. had he Travelers in which described reports periodic as in one report “good” “guarded” prognosis that a fusion Travelers Dr. advised another. Watson never After of one or both ankles possibility. him work, Dr. examined Watson September
returned 4, 1970, each and on 14, 1970, on December and again In January to Travelers. sent reports occasion the claim 4, 1970, December report, following never saw the claimant. contacted for Travelers to see went until he thereafter again for his doctor injuries He December later in 11 months Dr. Watson about he was still pain having Dr. Watson because then contacted difficulty walking rough and he was in his feet having him of told time Dr. Watson surfaces. At feet. or a fusion on one both possibility indicate that that would in the record There nothing 1971 was to claimant paid compensation existed at that for the not full disability did not adequacy time. claimant himself question amount, without and continued to work consulting later, About seven months a doctor until December 1971. Stuttle, he had been of Dr. to whom at the suggestion referred, an award and finally contacted attorney, on a loss of use left foot and was made based 40% The fact that loss of use of the foot. disabilities 30% right does of this were to exist at that time extent found on a loss of use of indicate that a settlement based 1714% for the that existed feet was not condition both adequate 1971, which was almost two earlier in January years *7 fusion. Dr. Watson had indicated of before possibility the discussion the claim It is not accurate to characterize or to as had with the claimant a “misrepresentation” he of the value of advised claimant say incorrectly his claim. relates to its second
My objection opinion relies of The opinion of application principle estoppel. v. Com. 61 Kaskaskia Constructors Industrial (1975), upon 532, Industrial 53 Ill. Ill. v. Com. Pope 2d (1973), 2d each there 560. These cases are In was inapposite. to the claimant before shortly representation alleged In reliance the statute of limitations ran. upon took no action to protect representation, of claim. In the case before us the statute limitations did 228
not start to run until after the It representation. alleged was on the basis this that the settlement representation was made. The check in of the settlement arrived payment a few later. This check days constituted last payment claimant, statute, and the under the compensation, had thereafter within which to file his claim. 1969, 48, No claim was filed par. 138.6(c)(3).) until November about months later. Pantle v. Industrial Com. 2d (1975), case,
in this there was an extended a claim. delay filing no claimant took to ascertain if a written claim steps had to be filed to collect This court stated: compensation.
“To it was prevail theory estoppel incumbent that he prove upon petitioner had relied some acts or upon representation had no or con knowledge venient means of the true facts.” Ill. knowing (61 371.) Thus, it is not for one enough relying estoppel establish the reliance only upon made to representation him. He also must that he had no prove knowledge true facts or a convenient means of them. knowing
The majority additional ignores require- ment, which assumes a degree in cases importance extended as in involving Pantle delays and in this case. Here, the claimant did to ascertain whether the nothing he compensation received was Even in December adequate. 1971, when he first learned from Dr. Watson of the fusion, he possibility did to ascertain the nothing of his adequacy even still though well within the limitation It was not until period. November 11 months after he learned of a fusion possibility and about months after the last that he compensation, filed his claim. He has made no to show that he attempt did not know or that he did not have a convenient means of or that he knowing from prevented that he had to file a claim ascertaining *8 Nor did he the last attempt within one after payment. year more he that his did not know disability show he had been than that for which compensated. extensive is to the on the contrary, fact the evidence only subject visit Dr. two months before because the Watson have alerted him should limitation period expiration opinion clearly his increased disability. majority as stated of estoppel ignores the,accepted requirements which has not offered any proof Pantle. The claimant any finding estoppel, would support principle Travelers was Industrial Commission that estopped the. the statute limitations contrary from asserting of the evidence. manifest weight this concerns the effect
The final reason for dissent It on the statute limitations. appears has made the statute once a been a sit becomes ended. How can idly by person open long Here, because a claim a rely upon representation? entitled to so much told claimant that only a claim the statute of limitations was not bar to money later, with under filed months no why, showing case, facts of this it was reasonable to such delay. permit claim to be same would Presumably, permit logic months or after the filed number of years representa- above, cited a claim tion relied Under statute upon. filed the date of or must be within from injury last It would compensation. logical appear related that some restriction to the rule reason should be of the limitation because period placed upon tolling of estoppel. dissent,
For the stated in reasons decision the Industrial should be reversed. Commission
MR. UNDERWOOD in this dissent. joins JUSTICE