dissenting:
The issue in this case is a narrow one, relating solely to the jurisdiction of the Industrial Commission. That the claimant was injured in the course of his employment is not disputed. But it is said that his application for compensation was filed with the commission too late. The pertinent statute provides: “that in any case, unless application for compensation is filed with the Industrial Commission within one year after the date of the accident, where no compensation has been paid, or within one year after the date of the last payment of compensation, where any has been paid, the right to file such application shall be barred.” (Ill. Rev. Stat. 1949, chap. 48, par. 161.) If the payments received by Ballard were “compensation” under the statute, his claim was filed in time; if those payments were not “compensation,” his claim was filed too late and the commission lacked jurisdiction.
Whether or not the normal period of limitation provided by the statute has been extended by payments of compensation has been before this court in many cases. The rule which has evolved, and the reason for that rule, were thus stated in United Air Lines, Inc., v. Industrial Com. 364 Ill. 346: “* * * where an employer makes payments to an injured employee during a period of time when the employee is unable to work, and liability under the Compensation act is not denied, such payments will be construed to have been made in consequence of the employer’s liability. This rule is based upon the doctrine that when the employer has knowledge of the injury and does not deny liability, the employee has a right to regard the payments as having been made under the act and is not bound to make demand for further compensation as long as the payments are continued.”
The prevailing opinion in this case is apparently based upon an assumption that the only kind of payments which can amount to “compensation” under section 24 are those which are made pursuant, or with reference to, the Workmen’s Compensation Act. It states: “The law is clear that payments unrelated to the provisions of the Workmen’s Compensation Act, and inconsistent with any acknowledgment of its application, do not amount to payments of compensation which will stay the running of the limitations provision. Diamond T Motor Car Co. v. Industrial Com. 378 Ill. 203; Lewis v. Industrial Com. 357 Ill. 309; Ohio Oil Co. v. Industrial Com. 293 Ill. 461.”
The assumed requirement does not exist. Payments of half pay, (Marshall Field & Co. v. Industrial Com. 305 Ill. 134,) and of wages in full, (United Air Lines, Inc. v. Industrial Com. 364 Ill. 346; Tyler v. Industrial Com. 364 Ill. 381,) have been held to be compensation under section 24. Such payments are obviously “unrelated to the provisions of the Workmen’s Compensation Act, and inconsistent with any acknowledgment of its application.” Of the three cases relied upon to support the majority opinion, two, the Lewis case and the Ohio Oil Co. case, have been frequently distinguished. In Olney Seed Co. v. Industrial Com. 403 Ill. 587, referring to the rule stated in the United Air Lines case and quoted above, this court said: “The rule was not applied in the cases relied upon by claimant, because it was apparent in the Ohio Oil Co. case that the employer expressly denied liability under the act, while in the Lewis case the employer had no notice or knowledge of an accidental injury or of its causal relation to the illness of the employee.” (See, also: Tyler v. Industrial Com. 364 Ill. 381; United Air Lines, Inc. v. Industrial Com. 364 Ill. 346.) In the third case relied upon to support the majority opinion, Diamond T Motor Car Co. v. Industrial Com. 378 Ill. 203, payment was made under a denial of liability.
We have held that payments which would be “compensation” for the purpose of tolling the limitations prescribed by the statute are “compensation” for the purpose of determining the amount to be awarded by the commission, and must be credited upon any subsequent award. In Olney Seed Co. v. Industrial Com. 403 Ill. 587, where this question was presented squarely for the first time, the court said: “Claimant argues that the cases relied upon by plaintiff in error are authority only for the rule that wage payments by the employer toll the limitations for time of filing a claim prescribed by section 24 of the act, (Ill. Rev. Stat. 1943, chap. 48, par. 161,) and have no application here where his claim was filed after the injury and within the time now allowed by the statute. We are of the opinion that the principle announced in those cases is applicable to the present case, where payments during a period of temporary total incapacity are involved. Those cases have construed wages paid by an employer who did not deny liability under the act, and who had knowledge of the employee’s accidental injury, to be payment of compensation as contemplated by the act, for the purpose of fixing the time in which an employee must file a claim. Simple justice and consistency, in the absence of any statutory direction to the contrary, demands that payments of wages under such circumstances operate as a. discharge, or partial discharge as the case may be, of the employer’s monetary liability under the act.”
Here, it is contended, and the majority opinion holds, that a payment which is undeniably “compensation” for the purpose of determining the employer’s monetary liability under the act is nevertheless not “compensation” for the purpose of tolling the period of limitation. The regulations of the Employes’ Benefit Association provide: “If a member should make and establish a claim for Workmen’s Compensation or Occupational Disease on account of the same disability for which he has received or is receiving benefits from the Association, the payment of further benefits shall cease and the member shall be obligated to reimburse the Association for all payments theretofore made. Any arbitrator, referee, compensation board or commission awarding such compensation is hereby authorized to provide for such reimbursement by deduction from, or credit upon the amount of the award, and if reimbursement is not made in this manner, the member shall repay the Association out of the amount of the award as and when made to him.” The demands of simple justice and consistency are no less compelling here than in the Olney Seed Co. case.
The remaining ground upon which the prevailing opinion is based is that the payments here were not made by International Harvester Company, but by the Employes’ Benefit Association of International Harvester Company. Something of the close connection between the company and the association appears from the prevailing opinion. Supplementing the statement there, it should be pointed out that control of the association’s board of trustees is in the company; that the company has sole custody of all of the association’s funds; that company employees draw all checks upon these funds, and that these checks bear the name of the company as well as of the association. Even more significant in terms of the application of a statute of limitations is the fact that workmen’s compensation claims and claims for benefits from the association are administered in a single office and by employees of the company who handle both types of matters interchangeably. Bearing in mind that payments from the association are required to be credited upon the company’s liability under the statute, it cannot be said that the company and the association are so clearly divorced that payments by the association can be disavowed by the company for the purposes of applying the period of limitations provided in section 24.
Our decisions have established two conditions under which payments by an employer during a period of disability do not toll the period of limitations: (1) Where the employer is not aware of the accidental injury and (2) where the payments are accompanied by a denial of liability under the act. There can be no question here as to the employer’s knowledge of the injury. Nor was there here any denial of liability. On the contrary, the record shows that the company’s employee who handled both workmen’s compensation claims and claims for association benefits represented to the claimant that benefit payments from the association and payments of compensation under the statute were alternative rights.
The claimant’s testimony, not disputed, is that he was directed by the company’s physician to “the insurance office” where the following conversation occurred: “Well, I was asking him about my insurance, I asked him about me getting hurt. I said, ‘Am I supposed to draw some compensation for my hurt, or draw some more of my insurance?’ He said, ‘Well, compensation don’t pay you but eighteen dollars and fifty cents a week.’ He said, ‘Your insurance will pay more than that.’ He says, ‘Would you rather draw $18.00, or draw twenty or $22.00 a week, like you is drawing?’ I says, T would rather draw like I am drawing, instead of eighteen fifty, because I can’t live on eighteen-fifty, because I got a wife and kid.’ He says, ‘You better let it at that.’ And I says, ‘Okay.’ ” In this there is no denial of liability. Even the statement of alternatives is not accurate. The precise measure of the inaccuracy is $1328, the amount of compensation awarded after crediting upon the total award the sum of $796 which the claimant received from the association.
In my opinion, the award should stand and the judgment of the superior court should be affirmed.
Bristow and HiürstiBy, JJ., join in the foregoing dissenting opinion.