NOTICE: Under Supreme Court Rule 367 a party has 21 days after the
filing of the opinion to request a rehearing. Also, opinions are
subject to modification, correction or withdrawal at anytime prior
to issuance of the mandate by the Clerk of the Court. Therefore,
because the following slip opinion is being made available prior to
the Court's final action in this matter, it cannot be considered
the final decision of the Court. The official copy of the following
opinion will be published by the Supreme Court's Reporter of
Decisions in the Official Reports advance sheets following final
action by the Court.
Docket No. 80498--Agenda 23--May 1996.
BRIAN TEGELER, Appellant, v. THE INDUSTRIAL COMMISSION (E.C.
Baker & Sons, Inc., Appellee).
Opinion filed October 18, 1996.
CHIEF JUSTICE BILANDIC delivered the opinion of the court:
The claimant, Brian Tegeler, filed an application for
adjustment of claim pursuant to the Workers' Compensation Act (Act)
(820 ILCS 305/1 et seq. (West 1992)) alleging that he sustained
injuries arising out of and in the course of his employment with
E.C. Baker & Sons, Inc. The arbitrator found in favor of the
claimant and awarded him compensation for temporary total
disability and permanent partial disability. The Industrial
Commission reversed the decision of the arbitrator, finding that
the claimant's application for adjustment of claim was barred by
the applicable statute of limitations. On administrative review,
the circuit court of Effingham County confirmed the Industrial
Commission's decision. The Industrial Commission division of the
appellate court, with one justice dissenting, affirmed the circuit
court. 276 Ill. App. 3d 1078. The appellate court certified the
cause for further review, and the claimant filed a petition for
leave to appeal (155 Ill. 2d R. 315(a)). We granted review and now
reverse the judgment of the appellate court. We remand the cause to
the Industrial Commission for further proceedings consistent with
the views expressed in this opinion.
FACTS
On July 29, 1987, Brian Tegeler, a 25-year-old well driller,
was injured in a motor vehicle accident in the course of his
employment with E.C. Baker & Sons, Inc. E.C. Baker & Sons, Inc.
(the employer), is owned and operated by Brian's uncle. Brian's
mother, Loretta Tegeler (Loretta), is the employer's corporate
secretary and works in the company's office. Shortly after the
accident happened, Loretta contacted the employer's insurance
agent, R.D. Hughes, and reported the accident. Robert Scybert
(Scybert), an independent claims adjustor for the employer's
insurance carrier, handled the matter on behalf of the carrier.
Sometime after the accident, Scybert contacted Loretta about
scheduling an appointment to take Brian's statement about the
accident. Scybert was in contact with Brian only once, when Scybert
took Brian's statement. All other contacts were between Loretta and
Scybert. Loretta acted on behalf of Brian and relayed any messages
from Scybert to Brian. Brian was not represented by counsel during
this time.
Brian was treated by Dr. Carl Belber, an orthopedic surgeon,
for two years following the accident. Among other treatment, Dr.
Belber surgically repaired a partial laceration of Brian's left
ulnar nerve above his elbow, an injury caused by the accident.
Brian was also treated by Dr. Gaylin Lack, an orthopedic surgeon,
for three years after the accident. Dr. Lack determined that Brian
suffered a right shoulder separation as a result of the accident.
Brian saw Dr. Lack periodically from August 11, 1987, through
December 3, 1990.
Around February of 1990, Scybert called Loretta and requested
that Brian undergo a medical examination by a Dr. Brown in
connection with his claim. Brian complied. Subsequent to the
examination, Scybert informed Loretta that he was waiting for Dr.
Brown's report.
On May 23, 1990, Scybert relayed by telephone a settlement
offer for Brian's injuries to Loretta. Scybert offered to settle
Brian's workers' compensation claim for $7,346. Scybert explained
that this amount represented compensation for Brian's permanent
injuries to his left arm. Loretta responded by informing Scybert
that there were permanent injuries to Brian's right shoulder as
well. Scybert stated that it was his understanding that Brian's
right shoulder had no permanent injuries. Loretta disagreed. She
then told Scybert that she would obtain Dr. Lack's report regarding
the injuries to Brian's right shoulder. There were no further
communications between Scybert and Loretta or Brian following the
settlement offer.
On December 15, 1990, the day before Loretta received the
report from Dr. Lack, Loretta was informed in a letter from the
employer's insurer that the settlement offer had been withdrawn and
the case closed. When Loretta spoke with Scybert after reading the
letter, he informed her that, because the statute of limitations
had expired, the case had been closed. Brian subsequently filed an
application for adjustment of his claim with the Industrial
Commission on January 4, 1991.
At the hearing before the arbitrator, Scybert was questioned
about his conduct concerning the settlement offer he relayed to
Loretta on May 23, 1990. Scybert testified that the employer's
insurance company had instructed him to make the offer and await a
response. The insurance company had further instructed Scybert
that, if the statute of limitations should expire before the
settlement offer was accepted, then the offer was to be withdrawn.
Scybert indicated in his testimony that he knew the statute of
limitations would expire two months and five days after he made the
settlement offer to Loretta. Nonetheless, Scybert did not tell
Loretta or Brian when the settlement offer would terminate. Nor did
he inform Loretta or Brian that the statute of limitations would
soon expire.
In addition, Loretta testified that no one ever provided Brian
with a copy of the Industrial Commission's instruction handbook,
which contains information regarding the rights and obligations of
employers and employees under the Workers' Compensation Act.
Loretta specifically requested a copy of the handbook from the
employer's insurance carrier immediately after the accident to give
to Brian. Loretta also informed Scybert that Brian did not have a
copy of the handbook.
After considering the testimony of Brian, Loretta, and
Scybert, the evidence deposition of Dr. Lack and the office records
of Dr. Belber, the arbitrator found in favor of Brian. The
arbitrator found that the statute of limitations was "tolled." The
arbitrator based her finding on Scybert's actions with Loretta and
Scybert's failure to advise Brian of the expiration date of the
statute of limitations. The arbitrator awarded Brian $157.94 per
week for a period of 12 2/7 weeks for temporary total disability
and $142.15 per week for a period of 132.5 weeks for permanent
partial disability, as provided in section 8(e) of the Act (820
ILCS 305/8(e) (West 1992)). According to the arbitrator, the
permanent partial disability award was based on Brian's 45% loss of
use of his left arm and 20% loss of use of his right arm.
The employer submitted a petition for review of the
arbitrator's decision to the Industrial Commission (Commission).
Two members of a three-member panel reversed the arbitrator's
decision and found in favor of the employer. The Commission
determined that Brian's application for adjustment of claim was
barred by the applicable statute of limitations (820 ILCS 305/6(d)
(West 1992)). The Commission found that the employer was not
estopped from asserting the statute of limitations as a defense
because the employer did not mislead or lull Brian into failing to
file his claim. The Commission also found that the employer had no
obligation to advise Brian when the statute of limitations would
expire on his claim.
A dissent was filed by one member of the Commission. The
dissent focused on section 7110.60 of the Commission's rules, which
requires employers to deliver a copy of the Handbook on Workers'
Compensation and Occupational Diseases to any employee who reports
a work accident. 50 Ill. Adm. Code §7110.60 (1991). According to
the dissent, this rule is designed to insure that employees know
their statutory rights and obligations, including the statute of
limitations for filing a claim for workers' compensation. The
dissent pointed out that the evidence showed that Brian did not
receive a copy of the handbook and there was no evidence that he
knew or should have known the statute of limitations was running.
The dissent thus concluded that the claim was timely and the
arbitrator's decision should be affirmed.
Brian sought review of the Commission's decision in the
circuit court. The circuit court confirmed the Commission's
decision, finding that it was not contrary to the manifest weight
of the evidence.
The Industrial Commission division of the appellate court,
with one justice dissenting, affirmed the judgment of the circuit
court. The majority found that Brian failed to show that the
employer should be estopped from raising the statute of limitations
as a defense. 276 Ill. App. 3d 1078. On the other hand, the
dissenting opinion agreed with the conclusion of the dissenting
commissioner. 276 Ill. App. 3d at 1084 (Rarick, J., dissenting).
ANALYSIS
The issue before this court is whether estoppel prevents the
employer from raising the statute of limitations as a defense.
The statute of limitations for filing an application for
adjustment of claim under the Act is set forth in section 6(d) (820
ILCS 305/6(d) (West 1992)). There is no dispute in this case that
the applicable statute of limitations expired three years after the
date of the claimant's accident. See 820 ILCS 305/6(d) (West 1992).
The claimant was injured on July 29, 1987. The claimant, however,
did not file his claim until January 4, 1991, a few months after
the expiration of the three-year limitations period. The claimant
argued before the Commission that the employer was estopped from
asserting the expiration of the limitations period as a defense.
The Commission rejected the claimant's argument. The claimant now
advances two arguments in support of his position that the employer
is estopped from raising the statute of limitations as a defense.
We address the two arguments separately.
First, the claimant maintains that an employer has a duty to
advise a claimant of the statute of limitations under the Act.
According to the claimant, an employer that fails to so advise is
estopped from raising the statute of limitations as a defense. We
disagree. This court has held that an employer's failure to advise
a claimant of the statute of limitations for filing a workers'
compensation claim does not, in and of itself, create an estoppel.
City of Chicago v. Industrial Comm'n, 75 Ill. 2d 270 (1979); Pantle
v. Industrial Comm'n, 61 Ill. 2d 365 (1975). We adhere to this
court's prior holdings and reject the claimant's argument. We
therefore agree with the Commission's finding that the employer in
this case had no duty to advise the claimant when the applicable
limitations period would expire.
The claimant next argues that the employer is estopped from
asserting the statute of limitations as a defense because of the
conduct and statements of the claims adjustor during the course of
settlement negotiations. We agree.
Estoppel is an equitable doctrine that is invoked to
effectuate justice by precluding a party from benefiting from their
own wrongdoing. See 18 Ill. L. & Prac. Estoppel ch. 2, §22 (1956);
Byron Community Unit School District No. 226 v. Dunham-Bush, Inc.,
215 Ill. App. 3d 343, 348 (1991). The law is clear that an employer
in some circumstances may be estopped from asserting the statute of
limitations as a defense. George Young & Sons, Inc. v. Industrial
Comm'n, 66 Ill. 2d 220 (1977); Molex, Inc. v. Industrial Comm'n, 62
Ill. 2d 46 (1975); Kaskaskia Constructors v. Industrial Comm'n, 61
Ill. 2d 532 (1975); Pope v. Industrial Comm'n, 53 Ill. 2d 560
(1973). Estoppel applies when the conduct or statements of an
employer or its representatives lull the employee into a false
sense of security, thereby causing the employee to delay the
assertion of his or her rights. See George Young & Sons, Inc., 66
Ill. 2d at 225; Molex, Inc., 62 Ill. 2d at 50; Kaskaskia
Constructors, 61 Ill. 2d at 535; Pope, 53 Ill. 2d at 565; Dickirson
v. Pacific Mutual Life Insurance Co., 319 Ill. 311, 318 (1925).
A clear example of how estoppel applies appears in Molex, Inc.
v. Industrial Comm'n, 62 Ill. 2d 46 (1975). In Molex, an employee
suffered an injury during the course of his employment. A
representative of the employer's insurance company required the
employee to be examined by a particular doctor. The employee
underwent the examination and the doctor forwarded his findings to
the insurance company. The insurer's representative then informed
the employee by telephone of the doctor's report and offered a
settlement. This settlement offer was made a little over one month
prior to the expiration of the statute of limitations. When the
employee "resisted" the offer, the representative recommended
another examination by the insurer's doctor, suggesting that such
an examination could lead to a better offer. The employee agreed,
and the insurance representative indicated that she would make the
appointment and call him back. Despite several telephone calls and
letters on the part of the employee over the course of two months,
the insurer's representative never responded. When the employee
spoke with another representative at the insurance company, he was
informed that the statute of limitations had run. Consequently, the
claimant was unable to file his application for adjustment of claim
until after the expiration of the statute of limitations. Molex, 62
Ill. 2d at 49.
In Molex, this court found that the insurance representative's
discussion of settlement with the employee induced the employee to
reasonably believe that there would be a further settlement offer
after another examination by the insurance company's doctor. Molex,
62 Ill. 2d at 50. The record showed that the employee was waiting
for further instructions from the insurance representative
regarding an appointment with the insurance company's doctor. It
was not until after the expiration of the statute of limitations,
however, that the employee was informed that no further offer would
be made. Molex, 62 Ill. 2d at 50. As a result of reasonably relying
on the conduct of the insurance representative, the employee did
not file his claim for compensation until after the expiration of
the statute of limitations. This court, therefore, held that the
employer was estopped from asserting the statute of limitations as
a defense to the late filing of the claim. Molex, 62 Ill. 2d at 50.
In reaching this conclusion, this court reasoned that, when
settlement negotiations are conducted close to the expiration of
the statute of limitations, notice of a termination of the
negotiations should be given to the claimant a reasonable length of
time before the expiration of the limitations period. Molex, 62
Ill. 2d at 51. Such notice gives the claimant adequate time to
prepare and file an application for adjustment of claim. Molex, 62
Ill. 2d at 51. As this court stated:
"Whether or not the result is intended, it is manifestly
unfair for an employer or its insurance carrier, being
versed in the operations of the Workmen's Compensation
Act, to lead the employee to the very brink of the
expiration date and then precipitously abandon him too
late for him to preserve his claim." Molex, 62 Ill. 2d at
51.
In the case sub judice, the arbitrator estopped the employer
from asserting the statute of limitations as a defense. The
arbitrator based her finding in part on Scybert's actions with
Loretta, who acted on behalf of the claimant, during settlement
negotiations. The Commission reversed the arbitrator's finding and
refused to apply estoppel. The Commission found that the employer
through its insurer's claims adjustor did not mislead the claimant
into delaying the filing of his claim. We find that the
Commission's decision is inconsistent with Molex and is against the
manifest weight of the evidence.
Here, as in Molex, the employer's representative lulled the
claimant into a false sense of security, thereby causing the
claimant to delay the assertion of his rights under the Act. The
record in the present case reveals that Scybert was the
representative of the employer's insurance company. Loretta was
acting on behalf of her son, the claimant. On May 23, 1990, Scybert
called Loretta and offered a settlement of $7,346, as compensation
for the claimant's permanent injuries to his left arm. Loretta did
not reject the offer, but simply inquired as to why it did not
include compensation for the claimant's injury to his right
shoulder. Scybert disputed the permanency of that injury. However,
when Loretta indicated that she would get a report from Dr. Lack
regarding that injury, Scybert acquiesced. His acquiescence
suggested that the settlement offer was open to negotiation on this
point. Consequently, Loretta was clearly left with the reasonable
belief that the insurer was holding the $7,346 settlement offer
open and that settlement negotiations would continue regarding the
right shoulder subsequent to Loretta's receipt of Dr. Lack's
report. In fact, after the settlement discussions on May 23, 1990,
there were no further communications between Scybert and Loretta
until December 15, 1990, when Loretta was informed that the
settlement offer was withdrawn because the limitations period had
expired.
Moreover, Scybert admitted in his testimony before the
arbitrator that the employer's insurance company had instructed him
to make the settlement offer and await a response. Scybert was also
instructed that if the statute of limitations ran before the
settlement offer was accepted, then the settlement offer was to be
withdrawn. Scybert knew the limitations period would expire two
months and five days after he made the settlement offer.
Nevertheless, Scybert did not inform Loretta or the claimant that
the settlement offer would soon be withdrawn.
All these facts show that Scybert misled Loretta into
believing that the settlement offer remained open and that
settlement negotiations would continue regarding the right shoulder
at least until Loretta's receipt of Dr. Lack's report. Scybert knew
when he commenced settlement negotiations that the settlement offer
and negotiations would terminate two months and five days later
when the statute of limitations expired (i.e., July 29, 1990).
Scybert, however, did not inform Loretta or the claimant of this
fact. Scybert thereby misrepresented the facts regarding an
existing time limitation on the settlement offer, which lulled the
claimant into a false sense of security that both the settlement
offer and settlement negotiations remained open. The claimant
reasonably relied to his detriment on this false sense of security
created by Scybert by delaying filing an application for adjustment
of claim until after he was informed that the settlement offer had
been withdrawn. See Kaskaskia Constructors, 61 Ill. 2d at 535 (the
claimant relied on the conduct of the employer's insurance
company's representative because the claimant withheld filing his
claim until receipt of the letter denying liability). The facts
further show that Scybert entered into settlement negotiations
close to the expiration of the statute of limitations and failed to
give the claimant notice of a termination of the negotiations a
reasonable length of time before the expiration of the limitations
period. As this court found in Molex, it would be unfair to permit
the employer's representative to conduct settlement negotiations
close to the expiration of the statute of limitations and then
abandon the claimant too late for him to preserve his claim. Molex,
62 Ill. 2d at 51. We therefore hold that the employer is estopped
from raising the statute of limitations as a defense.
Because of our holding, we need not address the claimant's
other argument that the employer's failure to provide him with a
copy of the Commission's handbook pursuant to section 7110.60 of
the Commission's regulations (50 Ill. Adm. Code §7110.60 (1991))
also served as a basis for estoppel.
CONCLUSION
For the reasons stated, we reverse the judgments of the
appellate and circuit courts and set aside the decision of the
Industrial Commission. We remand the cause to the Industrial
Commission for further proceedings consistent with the views
expressed in this opinion.
Appellate court judgment reversed;
circuit court judgment reversed;
Commission decision set aside;
cause remanded.
JUSTICE McMORROW, dissenting:
The majority today determines that the insurance adjustor in
the case at bar "misrepresented the facts regarding an existing
time limitation on the settlement offer" (slip op. at 8-9) and,
therefore, that the employer is estopped from asserting the statute
of limitations as a defense. This holding is contrary to the
express findings of the Industrial Commission that the claimant was
not misled during the settlement negotiations. There is nothing in
the record which indicates that the Industrial Commission's
findings are against the manifest weight of the evidence, as they
must be, for this court to overrule them. Moreover, by holding that
the employer is estopped from asserting the statute of limitations
as a defense under the facts of this case, I believe the majority
has effected a fundamental and unwarranted change in the area of
workers' compensation law. Accordingly, I dissent.
adjustment of claim pursuant to the Workers' Compensation Act (820
ILCS 305/1 et seq. (West 1992)), for injuries which occurred during
the course of his employment with E.C. Baker & Sons, Inc. It is
undisputed that the application was filed after the statute of
limitations had run. Claimant's mother, Loretta Tegeler (Loretta),
works in the office of E.C. Baker & Sons, Inc., and handled
discussions for her son with the workers' compensation insurer,
which was represented by Robert Scybert (Scybert), an independent
insurance adjustor.
During a brief hearing held before an arbitrator, Loretta
testified on direct examination that sometime "in June or first of
July," 1990, she had a telephone conversation with Scybert, during
which he made a settlement offer for claimant's injuries on behalf
of the insurer of approximately $7,346. Loretta gave the following
testimony describing the phone call:
"A. He [Scybert] said he wanted to make Brian an
offer on the permanent injuries to his left arm, and
that's when he gave me the figure.
Q. And what did you advise Mr. Scybert?
A. I told him that Brian had other injuries; what
about his shoulder?
Q. Which shoulder was this?
A. This is the right shoulder.
Q. What did Mr. Scybert say?
A. He said that the right shoulder apparently had
gone back together and that it wasn't injured. And I
said, oh, but it was.
Q. What next [sic] did you do then?
A. I said he could call Dr. Lack [one of claimant's
physicians] and get the doctor's report [regarding the
injury to claimant's right shoulder] and I would also
contact him and get a letter from him.
Q. Did you contact Dr. Lack?
A. Yes, we did.
Q. What was the purpose of contacting Dr. Lack?
A. To get a letter on a statement of the injury to
the right shoulder."
Loretta also testified that Scybert did not make the
settlement offer in writing and that he did not advise her of the
date the statute of limitations would expire. Loretta repeated the
description of the telephone conversation given above during cross-
examination. This was the totality of Loretta's testimony on this
issue.
Scybert testified before the arbitrator that on May 23, 1990,
he had a telephone conversation with Loretta, at which time an
offer was made to her son, through her, for permanent partial
disability. Scybert testified to the conversation as follows:
"A. I simply made the telephone call. I made the
offer--and I'd have to look up the amount of the offer at
this time if that's necessary, but I did make the offer,
and it was indicated to me that they would get back to me
in reference to their decision to settle--or to finalize
the claim.
Q. Do you have a recollection whether the subject of
a claimed injury to Brian's right shoulder was raised,
either by you or by Loretta during that conversation?
A. Not during that conversation.
Q. Did that subject come up at any other time in
your discussions with Mrs. Tegeler?
A. I believe I saw in the file back in 1989 she had
ask [sic] Dr. Lack for a doctor's report in reference to
the shoulder. I had just received Dr. Lack's notes at
that time indicating that the shoulder was fine. I have
a copy of that in the file. And this was relayed to Mrs.
Tegeler; however, she still chose to have the doctor
provide her with a separate report. If that was ever
received by them, I do not know.
* * *
Q. Okay. Can you--you may look at your file if you
need to refresh your memory--identify when you discussed
the question of the right shoulder injury and whether
there was or was not permanency with Mrs. Tegeler?
A. Just give me a quick second. I can do that, I
think.
Q. Sure.
A. *** This is in reference--our December 30, 1988,
report just after receiving Dr. Lack's report. Apparently
I had a conversation with Mrs. Tegeler about that report
and then I made a reference in the file here, noting that
she did have some concern about the--not necessarily
about the shoulder but wasn't as optimistic as the doctor
had been in reference to his report--because I think you
still had a concern at that point--and that's when she
advised me that she would be writing to Dr. Lack for his
report in reference to the shoulder.
Q. And that, sir, to the best of your recollection
was on or near December 30, 1988; would that be accurate?
A. It would most likely be on that date or just
previous to that date."
Scybert also testified that he did not advise claimant or his
mother of the date the statute of limitations would expire.
According to Scybert, the insurance company instructed him to make
the settlement offer and await a response from claimant. If the
response came after the statute had run, which would have been two
months and five days after the May 23, 1990 phone call, then
Scybert was to advise claimant that the offer was withdrawn. This
was the full extent of Scybert's testimony concerning the phone
conversation he had with Loretta, and whether the injury to
claimant's right shoulder was discussed during that conversation.
Based on the foregoing testimony, which is the only evidence
of record regarding the phone conversation which took place between
Scybert and Loretta, the Industrial Commission (the Commission)
reached the following conclusions:
"The Commission notes that no provision of the
[Workers' Compensation] Act nor any case in Illinois
suggests that there is an affirmative duty by an
adversarial party to advise a claimant when the statute
of limitations runs on the claimant's cause of action.
The creation of such a duty under the Act is the province
of the legislature. THE FACTS OF THIS CASE DO NOT
INDICATE THAT RESPONDENT DID ANYTHING TO MISLEAD
PETITIONER SO AS TO ESTOP RESPONDENT FROM ASSERTING A
DEFENSE UNDER THE STATUTE. THE ARBITRATOR MADE NO
FINDINGS THAT RESPONDENT WAS GUILTY OF MISLEADING OR
LULLING PETITIONER INTO FAILING TO FILE. THE COMMISSION
FINDS THE TESTIMONY OF ROBERT SCYBERT TO BE CREDIBLE THAT
RESPONDENT DID NOT MISLEAD PETITIONER INTO BELIEVING THAT
ANY FURTHER ACTION ON ITS PART WOULD OCCUR. The
Commission finds that Respondent had no obligation to
advise Petitioner that his claim under the Act would
expire.
Based on the above, the Commission finds that
Petitioner's claim was not timely filed and that
therefore the Commission does not have jurisdiction over
Petitioner's claim." (Emphasis added.)
The scope of our review of the Commission's findings is quite
narrow. "It is the Commission's role to judge the credibility of
the witnesses, determine the weight of their testimony, and draw
appropriate inferences from the evidence. [Citations.]" Parro v.
Industrial Comm'n, 167 Ill. 2d 385, 396 (1995). We may not reweigh
the evidence, or "substitute our judgment for that of the
Commission merely because we might have drawn different inferences
from the same record. [Citations.]" Parro, 167 Ill. 2d at 396. Our
review is strictly limited to determining whether the findings of
the Industrial Commission are against the manifest weight of the
evidence. Parro, 167 Ill. 2d at 396. Under this standard, we may
reverse the findings of the Commission only if we determine that no
rational trier of fact could have reached the conclusions reached
by the Commission. Chief Judge v. American Federation of State,
County & Municipal Employees, Council 31, 153 Ill. 2d 508, 514
(1992).
I submit that there is nothing in the record which indicates
that the Commission's findings are against the manifest weight of
the evidence, nor anything which would indicate, as the majority
asserts, that Scybert "misrepresented the facts regarding an
existing time limitation on the settlement offer" (slip op. at 8-
9). The clear import of Scybert's testimony is that the injury to
claimant's right shoulder was not discussed during the May 23,
1990, phone conversation. The Commission determined that Scybert's
testimony was credible. There is no basis for this court to reject
that determination and I note that the majority has offered none.
For the purposes of this appeal, we must accept that on May 23,
1990, Scybert made a settlement offer to Loretta, to which she
responded by saying that she would get back to him with her son's
decision to accept or reject the offer. Because an employer has no
duty to advise a claimant when the statute of limitations will
expire (City of Chicago v. Industrial Comm'n, 75 Ill. 2d 270
(1979); Pantle v. Industrial Comm'n, 61 Ill. 2d 365 (1975)), under
these facts, the employer should not be estopped from asserting the
statute of limitations as a defense.
Furthermore, even if Scybert's testimony concerning the May
23, 1990, phone conversation were rejected in its entirety, there
is no basis for estopping the employer. Loretta never testified
that Scybert promised to contact Dr. Lack. Nor did she testify that
Scybert promised to hold the settlement offer open until she
received additional information from Dr. Lack. Thus, on the
dispositive issue in this case, i.e., whether there was any
statement or misrepresentation on the part of Scybert which lulled
claimant into a false sense of security regarding the time limit
for filing his claim, there is no conflict in the testimony.
Indeed, none of the members of the reviewing bodies below--the
arbitrator, the Commission majority, the dissenting commissioner,
the circuit court, the appellate court majority, and the dissenting
appellate court justice--found that Scybert "misrepresented the
facts regarding an existing time limitation" so as to mislead the
claimant into failing to timely file his claim. It is only this
court, without support in the record, that makes such a finding.
There is simply no evidence that Scybert made any
misrepresentations to claimant or his mother, nor any evidence that
claimant or his mother detrimentally relied upon anything said by
Scybert. Without these factors, the employer cannot be estopped
from asserting the statute of limitations as a defense. See, e.g.,
Schumann v. Industrial Comm'n, 61 Ill. 2d 241, 247 (1975).
Despite the foregoing, the majority nevertheless concludes
that the Commission's findings are against the manifest weight of
the evidence. Relying solely on Loretta's testimony, the majority
reasons that Scybert's "acquiescence" to claimant's request for
further medical information regarding his injuries is sufficient to
estop the employer from asserting the statute of limitations as a
defense. Slip op. at 8. However, even if Loretta's testimony is
accepted to the exclusion of Scybert's, the majority's reasoning
remains unsound.
As noted above, Loretta never testified to any misleading or
lulling statements made by Scybert during their phone conversation.
Therefore, in the context of this record, "acquiescence" can only
mean a failure to inform claimant of the limitations period, i.e.,
silence. To support its holding, the majority must necessarily make
the inference that Scybert's mere silence in response to Loretta's
statement that she would be obtaining further medical information
regarding claimant's injuries "suggested that the settlement offer
was open to negotiation on this point." Slip op. at 8. This
inference is squarely at odds with the Commission's finding that
Scybert "did not mislead [Loretta] into believing that any further
action on [his] part would occur." " `[I]t is axiomatic that this
court will not disregard or reject permissible inferences drawn by
the Commission merely because other inferences might be drawn ***.
[Citations.]' " Parro, 167 Ill. 2d at 396, quoting Castaneda v.
Industrial Comm'n, 97 Ill. 2d 338, 341 (1983); see also Pantle, 61
Ill. 2d at 369 (and cases cited therein). The Commission could
reasonably infer that Scybert's silence did not mislead Loretta
into believing that further action would be taken on his part.
Accordingly, there is no reason why this court should reject the
findings of the Commission that Scybert did not mislead Loretta
during the settlement negotiations.
A further and more fundamental problem with the majority's
reasoning regarding Scybert's "acquiescence" is that it cannot be
reconciled with this court's prior decisions on the issue of
estoppel. This court has never held that an employer may be
estopped from asserting the statute of limitations as a defense
where the conduct of the claimant instigated the delay in filing
the claim. To the contrary, this court has consistently held that
to prevail on a theory of estoppel, a claimant must prove that
"some acts or representation" (Pantle, 61 Ill. 2d at 371) of the
employer or its representative created the delay in filing the
claim. See, e.g., George Young & Sons, Inc. v Industrial Comm'n, 66
Ill. 2d 220 (1977); Kaskaskia Constructors v. Industrial Comm'n, 61
Ill. 2d 532 (1975). In the case at bar, Loretta decided to obtain
further medical information regarding claimant's shoulder and chose
to delay making a decision regarding the settlement offer pending
receipt of that information. According to her own testimony,
Loretta instigated the delay in filing the instant claim, not
Scybert.
Molex, Inc. v. Industrial Comm'n, 62 Ill. 2d 46 (1975), the
principal authority upon which the majority relies, is not to the
contrary. In Molex, a settlement offer was made to the claimant and
was rejected. The insurer's representative suggested that a better
offer might be forthcoming if the claimant were to see the company
doctor. The claimant agreed, and the representative stated that she
would schedule an appointment with the doctor and call him back.
The representative never called back, despite repeated telephone
calls and letters from the claimant. In the meantime, the statute
of limitations expired. Molex, 62 Ill. 2d at 49. This court
determined that under the circumstances, the employer was estopped
from asserting the statute of limitations as a defense. Molex, 62
Ill. 2d at 50. The majority's reliance on Molex is misplaced
because in that case, the employer's representative took
affirmative action--scheduling an appointment with the company
doctor--which lulled the employee into a false sense of security
and caused the claimant to delay filing the claim. Consistent with
other decisions of this court, it was the employer in Molex who
created the delay, not, as here, the employee.
By failing to follow the underlying rationale of Molex, I
believe the majority has significantly and inappropriately altered
the principles of estoppel in the area of workers' compensation
law. The only conduct which Scybert engaged in here was to make an
offer for a final settlement approximately two months before the
statute of limitations was to run. Then, at most, he remained
silent in the face of Loretta's statement that she was postponing
her decision on whether to accept the offer pending receipt of
further medical information. If that action alone is enough to
estop the employer in the instant case from asserting the statute
of limitations as a defense, then there is no principled way to
conclude that other employers who make settlement offers and are
told that a response to those offers will be forthcoming, may not
also be estopped. Despite the majority's assertions to the contrary
(slip op. at 5), an affirmative duty to advise the adversarial
party of the statute of limitations has been imposed upon
employers. The duty imposed by the holding of the majority today
has far-reaching implications. Clearly, the imposition of such a
duty is within the purview of the legislature and not this court.
Finally, I note that in Justice Rarick's dissent from the
appellate court opinion below, the sole issue discussed was whether
an employer's failure to provide a copy of the Handbook on Workers'
Compensation and Occupational Disease to an employee who reports a
work accident (see 50 Ill. Adm. Code §7110.60 (1991)), will prevent
the employer from asserting the statute of limitations as a
defense. See 276 Ill. App. 3d 1078, 1084 (Rarick, J., dissenting).
Justice Rarick certified this issue to this court. See 155 Ill. 2d
R. 315(a). Unlike the majority, I believe this court should have
addressed this important policy question. If, as the employer has
argued, it proved to be inappropriate to address this issue because
the handbook was never put in evidence by the claimant and is not
part of the record before us, then that fact should be acknowledged
and the case dealt with accordingly.
For the foregoing reasons, I respectfully dissent.