dissenting:
The majority today determines that the insurance adjuster in the case at bar "misrepresented the facts regarding an existing time limitation on the settlement offer” (173 Ill. 2d at 509-10) 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.
The claimant, Brian Tegeler, filed an application for 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 adjuster.
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” (173 Ill. 2d at 509). 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.1 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. 173 Ill. 2d at 508. 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.” 173 Ill. 2d at 508. 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, 61 111. 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 (173 Ill. 2d at 505), 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.
Although the determination of the credibility of witnesses lies solely with the Commission (see Parro, 167 Ill. 2d at 396; Boatman v. Industrial Comm’n, 256 Ill. App. 3d 1070, 1071 (1993)), it is worth noting that the arbitrator in the instant case made no findings with respect to the credibility of either Loretta’s or Scybert’s testimony. The arbitrator only decided that the employer should be estopped after hearing Scybert’s testimony that the insurance company instructed him to make the settlement offer and await a response from Loretta without informing her of the statute of limitations. As noted in the text, an employer has no affirmative duty to inform a claimant of the statute of limitations. Thus, the arbitrator’s decision was erroneous.