
Industrial Commission Division

September 29, 1999









1-98-2217WC

IN THE APPELLATE COURT OF ILLINOIS

FIRST DISTRICT

STEVEN BEAUDETTE, Deceased, by	)	Appeal from 

JOY BEAUDETTE, his Widow,		)	Circuit Court of

Plaintiff-Appellant,		)	Cook County

   v.						)	No. 97L51021

ILLINOIS INDUSTRIAL COMMISSION, and)  

EASTMAN KODAK,                 	)	Honorable 

Defendants-Appellees.		)	Joanne L. Lanigan,

)	Judge Presiding.

_________________________________________________________________



JUSTICE McCULLOUGH delivered the opinion of the court:

On April 23, 1990, Steven Beaudette injured his right arm while working for respondent, Eastman Kodak Company (Ko­dak).  Steven received temporary total disability (TTD) benefits under the Workers' Compensation Act (Act) (820 ILCS 305/8(b) (West 1994)) until he died on January 18, 1992.  At some point during the week of Steven's death, his widow, Joy Beaudette, spoke with a represen­tative of Kodak, who incorrectly stated that she did not have a claim for further benefits under the Act.  On Novem­ber 3, 1994, Joy filed a claim for benefits under the Act.  On August 29, 1997, the Industrial Commis­sion (Commission) granted Kodak's motion to dis­miss, finding that though Kodak was estopped from asserting the normal statute of limita­tions under the Act (820 ILCS 305/6(d) (West 1998)), the claim was barred by a two-year period of limita­tions which began on the date of Kodak's conduct giving rise to the estoppel.  We affirm.

According to Joy's testi­mo­ny before the arbitra­tor, Clara Ooyama, an attorney for Kodak, was the person whom she talked to about her husband's case.  On January 23, 1991, Ooyama wrote Steven a letter stating, in part:

"As we discussed previously, your workers' compensation case can be settled with a lump sum payment to you for the April 1990 acci­

dent.  Please let me know if you would be interested in pursuing such an alternative.  If so, I will review your file and present you with a proposal for settlement."  

No response by Steven or by anyone on his behalf is shown in the record.  Claim­ant testi­fied she under­stood this letter to mean that when he was done with all of his cancer treatments, he would get a settlement payment.  Claimant testi­fied she trusted Ooyama and relied upon information she provided to her, even though Ooyama told her it was her job to represent Kodak and its inter­

ests.  On March 28, 1991, Ooyama wrote Steven, inform­ing him his workers' compen­sation claim was being adminis­tered by the Martin Boyer Company, Inc., and that ques­tions regarding his accident should be re­ferred to Judith Small, a claims representa­tive there.  Joy testified she spoke with Small frequently, and Small sent them Steven's pay­checks.  Joy testi­fied she believed Small and relied on her informa­tion.  Small never informed Joy of a time limita­tion for filing a claim.  Joy did not ask Small about time limita­tions.

Within a week after Steven died on January 18, 1992, Joy called Small, who told her to return half of the most recent paycheck.  Accord­ing to Joy, when she asked Small what was to happen next:  

"She told me that-- She said it was done; it was over with.  Your husband's dead, and that she-- What makes me remember that is that is what she said:  The case is-- There's no case.  He's dead."

When asked if she ever called Small again, Joy respond­ed, "No, because of the coldness in her.  She just said he was dead, there's nothing you can do."  Joy did not have any further conversations with Ooyama, Small, or anyone else repre­senting Kodak.

The Act provides for two periods of limitation:

"In 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 within 3 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, which­

ever shall be later, the right to file such application shall be barred."  820 ILCS 305/6(d) (West 1998).

The limitations period, measured from the date of injury, expired on April 22, 1993.  The limita­tions period measured from the last date of compensation expired on January 17, 1994.  Joy did not file this claim until November 3, 1994.

The arbitrator and Commission found Kodak es­topped from assert­ing the normal statute of limitations by the comments of Small during the week of January 18, 1992.  Under 
City of Chicago v. Indus­tri­al Comm'n
, 75 Ill. 2d 270, 281, 388 N.E.2d 406, 412 (1979), a claim­ant is not given an indefi­nite period in which to file a claim simply because the employer was estopped at some point from asserting the statute of limita­tions.  In­stead, the limita­tions period starts running again as of the date of the conduct giving rise to the estoppel.  
City of Chicago
, 75 Ill. 2d at 281, 388 N.E.2d at 412.  
The parties dispute whether the two-

year or the three-year period applies under 
City of Chicago
 after the conduct giving rise to estop­pel.  The Commis­sion applied the two-year period.

The Commission found estoppel, that "the statute began to run on January 25, 1992."  Although the parties do not address the estoppel issue, the evidence does not support such a finding.  A reviewing court can affirm the Commission's decision upon any legal basis in the record to support its decision, regard­less of the Commission's findings or reasoning.  
General Motors Corp. v. Industrial Comm'n
, 179 Ill. App. 3d 683, 695, 534 N.E.2d 992, 1000 (1989).  Estoppel is ordinarily a question of fact, but it becomes a matter of law where there is no dispute of material fact and only one inference can be drawn.  See 
Pantle v. Indus­

trial Comm'n
, 61 Ill. 2d 365, 369, 335 N.E.2d 491, 494 (1975).

In 
Phillips Products Co. v. Industrial Comm'n
, 94 Ill. 2d 200, 446 N.E.2d 234 (1983), the claimant was injured on May 28, 1975.  He received his last payment of compensation on October 1, 1975.  In April 1976, claimant inquired as to his rights; the personnel director informed him he "'had nothing coming'" and prior to that time the foreman told claimant to "'just forget about it.'"  
Phillips
, 94 Ill. 2d at 205, 446 N.E.2d at 236.  The supreme court stated, "A denial of liabil­ity is not a state­ment reasonably intended to mislead and lull a plain­tiff into forgoing a timely filing of his claim."  
Phil­lips
, 94 Ill. 2d at 205, 446 N.E.2d at 236.

Additionally, even if Small's statements were initially enough to estab­lish estop­pel, they would not bar the employer from raising the statute of limita­tions de­fense here.  Estoppel will not apply where the claimant knew or should have known of her legal rights long before the original period of limita­tions was to expire.  See 
Smith v. Cook County Hospi­tal
, 164 Ill. App. 3d 857, 866, 518 N.E.2d 336, 342 (1987); 
Neaterour v. Holt
, 188 Ill. App. 3d 741, 750, 544 N.E.2d 846, 852 (1989).  

Typical­ly, an employ­er is es­topped from assert­ing a statute of limita­tions when it engages in misleading conduct close to the expira­tion of the statute of limita­tions to lull the employee into a false sense of security and delay him from filing a claim.  See 
Tegeler v. Indus­trial Comm'n
, 173 Ill. 2d 498, 508-

10, 672 N.E.2d 1126, 1130-31 (1996) (estoppel occurred where employer's adjust­er failed to inform employee that negotia­tions and settle­ment offer would terminate roughly two months later, when three-year statute of limita­tions expired); 
Molex, Inc. v. Industrial Comm'n
, 62 Ill. 2d 46, 50-51, 338 N.E.2d 390, 392 (1975) (employ­er started negoti­ating roughly six weeks before the one-year statute of limita­tions expired, claimant requested information two weeks before the expira­tion of the period, and employ­er waited until period expired to contact him and tell him that no further settlement offer would be made); 
Kaskaskia Con­

struc­tors v. Indus­trial Comm'n
, 61 Ill. 2d 532, 533-34, 337 N.E.2d 713, 713-14 (1975) (insur­ance carrier representatives dis­

cussed claim with employ­ee the month the statute of limita­tions expired and did not inform him statute was about to ex­pire); 
Schumann v. Industrial Comm'n
, 61 Ill. 2d 241, 247, 335 N.E.2d 425, 429 (1975) (the supreme court found no estoppel since no evidence showed that the insurance adjuster sought to mislead the claimant where the claim was filed six months after the limita­

tions period expired).

Where there is a longer delay between the employer's conduct and the expiration of the original statute of limita­

tions, estop­pel has only been found where special circumstances justify the employee's continued reliance on the employer's conduct.  In 
Herlihy Mid-Conti­nent Co. v. Indus­trial Comm'n
, 252 Ill. App. 3d 211, 215-16, 625 N.E.2d 108, 110-11 (1993), estop­pel occurred where about six months remained between the employer's conduct and the expiration of the limitations period.  This court found that claimant had a continuing working relation­ship with insurers; the insurer continued to pay medical expenses after the limitations period had run; the claimant contin­ued to work and receive salary; and the claimant's delay in filing a claim was due to his need to verify his condi­tion.

This limit on the doctrine of estoppel is not affect­ed by the holding in 
City of Chica­go
.  If the conduct giving rise to estoppel ends long before the original statute of limita­tions expires, estoppel is not a bar to that original statu­to­ry period, and the new period estab­lished under 
City of Chicago
 never takes effect.  
City of Chicago
 referred to 
the supreme court's state­

ment in 
Molex
, 

"'When settlement negotiations are con­

ducted as close to the expiration of the limitation period as they were in this case notice of the termination of negotiations should be given to the claimant a reason­able length of time before the expiration date so that he may have adequate time to prepare and file an application for adjustment of claim.'"  
City of Chicago
, 75 Ill. 2d at 280, 388 N.E.2d at 411, quoting 
Molex
, 62 Ill. 2d at 51, 338 N.E.2d at 392.

Tegeler
 also found 
Molex
 a good example of the applica­

tion of estoppel and timeliness of the filing of a claim.  
Tegeler
 quoted from 
Molex
, stating:

"'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 aban­

don him too late for him to preserve his claim.'"  
Tegeler
, 173 Ill. 2d at 507, 672 N.E.2d at 1130, quoting 
Molex
, 62 Ill. 2d at 51, 338 N.E.2d at 392.

Tegeler
 and 
Molex
 provide a sound basis for the propo­

sition that there can be no estoppel where there is a substan­

tial, unjustified delay after the misleading conduct and before the statute of limitations has expired.

As stated above, section 6(d) establishes a period of limitations of three years from the date of the accident.  This period expired on April 22, 1993.  However, section 6(d) also provides a period of limitations of two years from the date of last payment of compensation, where any has been paid.  The last compensation was paid January 18, 1992.  At the time of Small's misleading statements (around January 25, 1992), at most one week of the two-year period had passed.  The employ­er engaged in no further mislead­ing conduct.  There is nothing in the appel­late record to indi­cate why Joy allowed the original statute of limitations to expire before investigating and filing a claim.

For all of the above reasons, we affirm.

Affirmed.
 

RAKOWSKI and HOLDRIDGE, JJ., concur.

RARICK, J., dissenting:

I respectfully dissent for the same reasons ex­

pressed in my recent dissent in 
Alexander v. Industrial Comm'n
.

As in 
Alexander
, oral argument in the present case was requested and heard before a panel of three commission­

ers.  At the time the Commission's decision was entered, however, the term of one of the commissioners had expired.  The two remaining commissioners were unable to agree on a result and wrote separate decisions.  A third commissioner, who was not present at oral argument, signed one of the decisions pursuant to 
Zeigler v. Industrial Comm'n
, 51 Ill. 2d 137, 281 N.E.2d 342 (1972).  I believe the issue of a decision under such circumstances does not comport with the clear and unambiguous language of section 19(e) of the Workers' Compensation Act, which provides in pertinent part: "[i]n the event either party requests oral argument, such argument shall be had before a panel of 3 members of the Commission ***.  A decision of the Commission shall be approved by a majority of Commissioners present at such hearing."  820 ILCS 305/19(e) (West 1996).  Because a major­

ity of the commissioners who were present at the hearing did not approve the decision, I believe we have no jurisdiction to entertain this appeal.  I would therefore dismiss the appeal and remand the cause to the Commission to enter a valid decision.

COLWELL, J., joins this dissent.

