Herlihy Mid-Continent Co. v. Industrial Commission

625 N.E.2d 108, 252 Ill. App. 3d 211, 192 Ill. Dec. 148, 1993 Ill. App. LEXIS 1246
CourtAppellate Court of Illinois
DecidedAugust 13, 1993
Docket1-92-1437WC
StatusPublished
Cited by6 cases

This text of 625 N.E.2d 108 (Herlihy Mid-Continent Co. v. Industrial Commission) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Herlihy Mid-Continent Co. v. Industrial Commission, 625 N.E.2d 108, 252 Ill. App. 3d 211, 192 Ill. Dec. 148, 1993 Ill. App. LEXIS 1246 (Ill. Ct. App. 1993).

Opinions

JUSTICE WOODWARD

delivered the opinion of the court:

On October 8, 1986, claimant, David Kutina, filed an application for adjustment of claim pursuant to the Workers’ Compensation Act (Act) (HI. Rev. Stat. 1985, ch. 48, 138.1 et seq.). Therein he alleged injuries to his back and legs arising out of and in the course of his employment with the employer, Herlihy Mid-Continent Company. After a hearing held on February 25, 1989, the arbitrator issued a “Memorandum of Decision,” wherein he found the statute of limitations did not bar the claim and that claimant was entitled to 75 weeks of temporary total disability (TTD). On review the Industrial Commission (Commission) affirmed and adopted the arbitrator’s decision. The circuit court confirmed the Commission’s decision, and this timely appeal followed.

The employer argues on appeal that the Commission erred in finding that it was estopped to assert a statute of limitations defense.

On November 23, 1982, claimant, a carpenter, was working for the employer. While walking backwards and unraveling a coil of wire, claimant lost his footing and fell down. Claimant immediately felt pain in his right lower back and was unable to stand up for 15 minutes. A co-worker drove him to the construction office, where he stayed until the end of the work day. Claimant went to see Dr. D.L. Doorinkaat, a chiropractor who had previously treated him for a neck condition. Claimant was off work for a week following the accident. He continued to receive treatment from Dr. Doorinkaat on a regular basis into January 1983, at which time claimant felt sufficiently improved to discontinue treatments. The employer’s insurance carrier paid Dr. Doorinkaat’s bills.

Due to a recurrence of his back pain, claimant began seeing another chiropractor, Dr. Scott Kozek, on March 19, 1984. Subsequently, an insurance investigator from Argonaut Insurance met with claimant. The investigator asked claimant “if [he] was working and how [he] was doing.” Claimant described his back problems. The investigator said nothing to claimant about the relevant statute of limitations period. Claimant continued to receive treatments from Dr. Kozek throughout 1984 and 1985. The insurer paid Dr. Kozek’s bills and, at no time prior to the end of the statute of limitations period, did it inform claimant of the need to file a claim within said period.

In a letter dated November 9, 1984, the insurance investigator asked Dr. Kozek to complete a standard report form concerning claimant’s condition. In the completed form dated November 16, 1984, Dr. Kozek wrote that X rays taken on March 29, 1984, indicated subluxations of the L4 vertebra and both iliac joints. At that time, Dr. Kozek stated that he was unable to determine whether the injury was permanent. On March 18, 1985, Dr. Kozek completed the same form submitted by the insurer and again stated that claimant’s condition was due to subluxations of the L4 vertebra and both iliac joints and that it was uncertain whether the injury was permanent in nature.

In March 1985, claimant was examined by Dr. John Dwyer at the insurer’s request. Claimant was not informed by Dr. Dwyer about the statute of limitations, nor was he ever shown a copy of Dr. Dwyer’s report, which stated that there were no objective indications of disability in claimant’s lower back and that he could work normally with no restrictions.

In a July 29, 1985, letter to the insurer, Dr. Kozek stated that he was not certain when his treatment of claimant would conclude. He further stated that he expected to treat claimant every three or four weeks for the next 12 to 18 months. Dr. Kozek concluded the letter by inviting the insurer to discuss claimant’s condition further. On November 2, 1985, Dr. Kozek again wrote the insurer, informing it that claimant’s treatment would continue at three- to four-week intervals over the next 12 to 14 months. Dr. Kozak was unable at that time to determine a final date of treatment or whether claimant’s condition was permanent. Also, he once more invited the insurer to discuss this matter further. Dr. Kozek’s notes indicate that on February 21, 1986, he talked with Brenda Moore of the insurance company regarding claimant’s physical status.

Claimant continued receiving treatments from Dr. Kozek in 1986. On March 11, 1986, claimant was examined by Dr. Anthony Brown at the insurer’s direction. Dr. Brown concluded that claimant was not impaired, and, therefore, no treatment of his back was required. In a letter dated April 9, 1986, the insurer notified claimant that it would pay no additional medical expenses. Claimant continued treatment with Dr. Kozek and paid his own medical expenses. It should be noted that throughout the period following his accident, claimant worked continuously for the employer.

On May 5, 1986, Dr. Kozek referred claimant to Dr. Gleason, an orthopedic surgeon, for an independent evaluation of claimant. Dr. Gleason determined that claimant was experiencing sciatic neuritis coming from the lumbar spine. On October 8, 1986, claimant filed an application for adjustment of claim.

There is no question there was an accident, and the employer is responsible for the medical expenses within the limitations period. Section 8(a) requires the employer pay the medical expenses. Section 8(a) (111. Rev. Stat. 1985, ch. 48, par. 138.8(a)) specifically provides:

“The furnishing by the employer of any such services or appliances is not an admission of liability on the part of the employer to pay compensation.
The furnishing of any such services or appliances or the servicing thereof by the employer is not the payment of compensation.”

An apparent reason for not calling medical payments compensation is to encourage employers to keep abreast of their employees’ medical conditions with respect to injuries. The employer is also responsible for penalties for failure to pay medical expenses.

As stated above, the issue before this court is whether the Commission’s decision that the employer was estopped to assert a statute of limitations defense is against the manifest weight of the evidence.

The statute reads in relevant part:

“[I]n any case, other than one where the injury was caused by exposure to radiological materials or equipment or asbestos unless the application for compensation is filed with the Commission within three years after the date of the accident, where no compensation has been paid, or within 2 years after the date of the last payment of compensation, where any has been paid, whichever shall be later, the right to file such application shall be barred.” Ill. Rev. Stat. 1985, ch. 48, par. 138.6(d).

The employer argues the following. Because the evidence is undisputed, the question before us is a matter of law rather than factual interpretation, and, therefore, the Commission’s decision is not binding upon us. Further, the record shows that any contacts between claimant and the insurance company did not deal with the payment of compensation. Nor did these contacts involve any misrepresentations, fraud, or undue pressure to deprive claimant of compensation. Moreover, the employer maintains that Schumann v. Industrial Comm’n (1975), 61 Ill. 2d 241, is controlling, rather than Kaskaskia Constructors v.

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719 N.E.2d 191 (Appellate Court of Illinois, 1999)
Tegeler v. Industrial Commission
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Galiher v. Industrial Commission
636 N.E.2d 52 (Appellate Court of Illinois, 1994)
Herlihy Mid-Continent Co. v. Industrial Commission
625 N.E.2d 108 (Appellate Court of Illinois, 1993)

Cite This Page — Counsel Stack

Bluebook (online)
625 N.E.2d 108, 252 Ill. App. 3d 211, 192 Ill. Dec. 148, 1993 Ill. App. LEXIS 1246, Counsel Stack Legal Research, https://law.counselstack.com/opinion/herlihy-mid-continent-co-v-industrial-commission-illappct-1993.