WCLA MCLE 6-19-14

1. The Notice Defense: Myth or Reality • Thursday June 19, 2014 • Amylee Hogan Simonovich; Ridge & Downes • 12:00 pm to 1:00 pm • James R. Thompson Center , Chicago, IL • 1 Hour General MCLE Credit WCLA MCLE 6-19-14

2. The Notice Defense: Myth or Reality Amylee Hogan Simonovich Ridge & Downes

3. (c) Notice of the accident shall be given to the employer as soon as practicable, but not later than 45 days after the accident. Provided: (1) In case of the legal disability of the employee or any dependent of a deceased employee who may be entitled to compensation under the provisions of this Act, the limitations of time by this Act provided do not begin to run against such person under legal disability until a guardian has been appointed. (2) In cases of injuries sustained by exposure to radiological materials or equipment, notice shall be given to the employer within 90 days subsequent to the time that the employee knows or suspects that he has received an excessive dose of radiation. No defect or inaccuracy of such notice shall be a bar to the maintenance of proceedings on arbitration or otherwise by the employee unless the employer proves that he is unduly prejudiced in such proceedings by such defect or inaccuracy.Notice of the accident shall give the approximate date and place of the accident, if known, and may be given orally or in writing. Notice – 820 ILCS 305/6(c)

4. Seiber v. Indus. Comm’n, 82 Ill. 2d 87 (1980). The purpose of the notice requirement is to enable the employer to investigate the employee’s alleged industrial accident. Purpose

5. Sufficiency of Notice

6. A claim is only barred if no notice whatsoever has been given. Silica Sand Transport, Inc. v. Indus. Comm’n, 197 Ill.App.3d 640, 651 (1990). • The element of prejudice to the employer is pertinent only where notice is given but is indefinite or incomplete. Fenix & Scisson Const. Co. v. Indus. Comm’n, 27 Ill. 2d 354 (1963). • Sufficiency of notice is an issue of fact. Moore Electric Co. v. Indus. Comm’n, 83 Ill. 2d 43 (1980). • A defect or inaccuracy in the notice is not a bar unless the employer is unduly prejudiced thereby. Consumers Co. v. Indus. Comm’n, 364 Ill. 145 (1936) and Quaker Oats Co. v. Indus. Comm’n, 414 Ill. 326 (1953).

7. Raymond v. Indus. Comm’n, 354 Ill. 586 (1933) “It cannot have been the intention of the Legislature in this kind of an act to require the impossible. It was manifestly impossible for the employee in this case to tell the employer anything about the disablement which the employee himself did not know.” “All the facts were known equally to both parties, and it is difficult to perceive any just theory upon which the employee would be bound to draw the correct medical inferences from those facts and the employer be excused therefrom.” • The employer was aware the employee was sick and had to quit work as a result of his symptoms, although the exact cause was unknown. • The employer knew as much about the nature of the illness as the employee, neither one of them could be blamed for a failure to know. The Act requires the employee to “place the employer in possession of the known facts within the statutory period, but that a defect or inaccuracy in the notice is not a bar unless the employer is unduly prejudiced thereby.” Fenix-Scisson Const. Co. v. Indus. Comm’n, 27 Ill.2d 354, 357 (1963).

8. McLean Trucking Co. v. Indus. Comm’n, 72 Ill.2d 350 (1978). Sohio Pipe Line Co. v. Indus. Comm’n, 63 Ill.2d 147, 151 (1976). The employer was timely notified of the employee’s disability and hospitalization, but was not informed of any facts that would lead it to believe that the employee suffered an accidental injury for which compensation might be claimed. The Court held that the claimant was not barred from seeking benefits under the Act. • A truck driver collapsed at home and died shortly after returning from work. The employee’s son telephoned a supervisor and informed him that his father had passed away. • The Supreme Court held that the notice given by the son was “as specific as it could be under the circumstances” and that the employer had the burden of proving that it had been unduly prejudiced by the notice. • “The notice requirement cannot be unreasonably construed so as to compel the impossible—to require a claimant to give notice of what he does not know

9. Sufficient Insufficient Claimant's wife phoned his foreman within the 45-day period and informed him that her husband had been injured, but did not state it was work related. Fenix & Scisson Const. Co. v. Indus. Comm’n, 27 Ill.2d 354 (1963). Swing v. IWCC, 01-10-3799WC (2011): Simply reporting one’s condition, without reference to its cause, would not put an employer on notice that there was an accident to investigate. Milewski v. IWCC, 1-10-2147WC (2011): Claimant simply told his employer about the condition of his knees, without referencing that the performance of his duties was affecting his knees. Mohr v. Silgan Closures, 09 WC 48781, 12 IWCC 0711 (2012): Petitioner, in the process of informing the employer of her CTS and her need to wear splints at work, specifically informed the employer that this particular malady was not work-related. Lane v. Source One, 09 IWCC (2009): Petitioner filled out a short-term disability form marking that his injury was not due to sickness/illness arising out of his job. He also reported back difficulties to his supervisor at the time he began treatment, but did not report to his supervisor he sustained a work-related injury. • Claimant informed his foreman that cans were dropping on his foot, but did not at that time know that he was suffering an injury. This may have been defective or inaccurate notice, but there was no prejudice. Quaker Oats Co. v. Indus. Comm’n., 414 Ill. 326 (1953). • Claimant informed employer he was having knee problems that were going to require surgery. Employer could infer from Petitioner’s work as a floor installer that the injury was work-related. S&H Floor Covering, Inc. v. IWCC, 373 Ill.App.3d 259 (2007). • Employer knew that claimant was taken to the hospital with chest pain and the type of heavy work he was doing all morning. They took no steps to gain additional information. Republic Steel Corp. v. Indus. Comm’n, 26 Ill. 2d 32 (1962). • A foreman and another worker witnessed and heard the claimant say he had hurt his back. Hoeffken Bros., Inc. v. Indus. Comm’n, 31 Ill. 2d 405 (1964). • Claimant told her employer she was diagnosed with CTS and referred to a specialist, did not indicate whether the diagnosis was work-related, but the employer was aware the claimant was having problems with her hands while working from the wrist braces she wore. Harmony’s Corner v. IWCC, 2-11-0852WC (2012). When are the facts sufficient?

10. Notice & repetitive trauma

11. To determine when the 45-day period begins to run, we must first determine the accident date. • In repetitive trauma cases, the accident date is the date the condition manifests itself. • Peoria Bellwood tells us that “manifests itself” means the date on which both the fact of the injury and the causal relationship of the injury to the claimant’s employment would have become plainly apparent to a reasonable person. • In Peoria Bellwood, even though the claimant had symptoms for 6 years, her condition did not manifest itself until it warranted treatment. • Simply because an employee’s work-related injury is gradual, rather than sudden and completely disabling, should not preclude protection and benefits. To require otherwise would penalize an employee who faithfully performs job duties despite bodily discomfort and damage. Peoria County Bellwood Nursing Home v. Indus. Comm’n, 115 Ill. 2d 524 (1987).

12. Oscar Mayer & Co. v. Indus. Comm’n, 176 Ill.App.3d 607 (1988) tells us that there are two alternative ways to fix the date the injury manifests itself: • The time at which the employee can no longer perform his job OR • The onset of pain which necessitates medical attention. • Setting the manifestation date as the date symptoms are first experienced would prejudice employees who continue to work through symptoms for a number of years. • Notice of symptoms when ability to perform duties is unimpaired is only a potential disability. • Actual disability, such as being taken off work for the first time, is when the employer becomes adversely affected. • This concept is reinforced by the Supreme Court in Durand. Fact of the injury vs. fact of discovery

13. Be Careful! The last day worked is not always the manifestation date.

14. Three “D” Discount Store 198 Ill. App. 3d 43 (1989). A. C. & S. v. Indus. Comm’n, 304 Ill.App.3d 875 (1998). The method for ascertaining the accident date in repetitive trauma cases makes it possible for that date to fall after the claimant’s last day of employment. Claimant’s injuries manifested the date he was diagnosed with CTS, even though this was two weeks after he was laid off from his employment with Respondent. • A reasonable person would have been on notice that his condition was work-related and medically disabling when he was examined by an orthopedic surgeon and prescribed surgery, even though he persisted in his employment for another month. • Recommendation for treatment, especially surgery, is very significant in setting manifestation date. Diagnosis date as manifestation date

15. Claimant informed her supervisor on 01/29/98 that she noticed pain in her hands several months earlier, in September or October 1997, and that she believed the pain was work-related. She continued working and sought medical help on 08/15/00. A neurologist did an EMG on 09/08/00. Respondent got an IME on 11/06/00. Claimant first had surgery 02/12/01. Claimant filed an Application listing 09/08/00 as her accident date, the date she received the EMG. • Courts have typically set the manifestation date on either the date on which the employee requires medical treatment or the date on which the employee can no longer perform work activities. A formal diagnosis is not required. • Because repetitive trauma injuries are progressive, the employee’s medical treatment, as well as the severity of the injury and particularly how it affects the employee’s performance, are relevant in determining objectively when a reasonable person would have plainly recognized the injury and its relation to work. • The Commission ignored claimant’s testimony about her intermittent pain and how it affected her performance. Her pain was on and off and was not that bothersome to her at first. She was never reassigned to other work, and never sought medical treatment until 08/15/00. • A reasonable person would not have known of this injury and its putative relationship to computer keyboard work before the pain finally necessitated medical treatment. • The Court declined to penalize an employee who diligently worked through progressive pain until it affected her ability to work and required medical treatment. Durand v. Indus. Comm’n, 224 Ill.2d 53 (2006).

16. White v. IWCC 374 Ill.App.3d 907 (2007).

17. White worked as a laborer in the coal mine for 15 years, when he began to experience back and shoulder pain. • White sought treatment with his PCP and was referred to an orthopedist. • White worked until 07/17/00, when he stopped working to undergo right shoulder surgery. At this time, the orthopedist did not know if White’s shoulder problem was work-related. Six months later he underwent back surgery. • During this period, he received union disability benefits. • In May 2001, White completed a union disability form on which a box was checked stating that his back and upper extremity conditions were not work related. • In March 2002, White’s attorney wrote to his orthopedist. A response was received on 10/15/02, attributing White’s problems to years of hard manual labor and recurrent traumas relating to coal mining. • White filed an Application 10/29/02, alleging an accident date of 07/17/00 – On or About / Last Day Worked. Facts

18. Delivered by Justice Holdridge. McCullough, Hoffman, Grometer, and Donovan, concurring. Mere notice to an employer of some type of injury is insufficient; it is also necessary that the employer be put on notice that the injury is in some way work-related. Appellate Court opinion

19. Although Freeman United knew White was injured before the date in question, the record does not show appraisal of industrial injuries. • In July 2000, the orthopedic said she did not know if White’s injuries were work related. • White received sickness and accident benefits during his time off work instead of filing for workers’ compensation. • In May 2001, he completed a form on which a box was checked stating that his back and upper extremity conditions were not work-related. • He had filed accident reports in the past. How did the court come to this conclusion?

20. Constructive Notice Manifestation Date White argued filing his Application provided timely notice because the filing occurred within 45 days after the orthopedic’s letter opined that his problems were work-related. While this was true, White did not alleged this date as his accident date. He cannot change his accident date on appeal. • White argued that surgery in 2000 plus his placement on sickness and accident roster would constitute constructive notice that there was some type of injury, although not a precise etiology. • The Court found that this was not defective, but was no notice all together, especially where he checked the not work-related box on the form. arguments

21. If White hadn’t checked the box, would it have been considered defective notice? • Employer knew that he was treating for an injury and the type of hard manual labor that he did. • He stopped using shoulder straps and resorted to a belt only.

22. Did the court get this wrong? Haven’t they changed accident dates on appeal?

23. The Commission can amend the Application to conform to proofs. Freeman United Coal Mining Co., v. Indus. Comm’n, 297 Ill.App.3d 662, (4th Dist, 1998). • Three “D” • Clamant filed Application for Adjustment of Claim alleging an accident date of August 10, 1984, the last day he worked for Respondent. • The Appellate Court found that although petitioner persisted in his employment until August 10, a reasonable person in these circumstances would have been on notice that his condition was both work related and medically disabling on July 10, 1984, the date he was seen by the orthopedic surgeon. • Town of Normal: Claimant filed an Application for Adjustment of Claim alleging an accident date of 06/23/2005, but the Court found the accident manifested itself on 02/09/2006, when the diagnosis was made. Thus making notice timely and benefits possible.

24. Rule 23 Decisions IWCC Decisions Mohr v. Silgan Closures, 12 IWCC 0711: When Petitioner informed her employer she had to wear splints at work, she specifically stated it was not work-related. She later changed her mind and informed them it was work-related 66 days after the manifestation date. No notice. Duda v. Krugel Cobbles, Inc., 11 IWCC 1220: The Arbitrator found the White case instructive because claimant told two co-workers he was not injured at work. Lane v. Source One, 09 IWCC ????: Merkan v. Cerro Flow, 11 IWCC 1186 Wilson v. Joel Oppenheimer, Inc., 11 IWCC 0060: Cites to White for the proposition that notice of the medical condition without specific reference to the cause or work activity, are sufficient notice to the employer, although it may be considered defective. Flick v. C.M. Products, Inc., 08 IWCC 0892 • Town of Normal, 4-11-0734WC (2012): Even though notice may have been defective or inaccurate, unlike White, the claimant did not make a statement that his condition was not work-related. • Harmony’s Corner, 2-11-0852WC (2012):The claimant told employer of CTS diagnosis, but did not indicate whether the diagnosis was work-related, but the employer was aware the claimant was having problems with her hands while working from the wrist braces she wore. • Swing, 01-10-3799WC (2011): Telling an employer of a condition does not put the employer on notice of the accident; after all, the injury could have occurred while the employee was not working. • Milewski, 1-10-2147WC (2011): White stands for the proposition that mere notice to an employer of some type of injury is insufficient; it is also necessary that the employer be put on notice that the injury is in some way work-related. How has White been interpreted?

25. Tolbert v. IWCC Decided June 5, 2014

26. 7/28/10 Tolbert begins working for employer cleaning out grain flats and bins containing airborne dust and dried bird feces. • 8/26/10 Goes to ER with chest pain & shortness of breath • 8/31/10 Last day worked for employer • 9/1/10 General Manager Heil puts Tolbert on Voluntary Leave • What did Heil & Tolbert talk about? Lung & chest issues? Biopsies? • 9/22/10 Sees PCP Dr. Norris – orders lung biopsy • 10/4/10 lung biopsy shows histoplasmosis • 10/22/10 Dr. Norris notes history of symptoms and work around bird droppings in July & August • 11/9/10 Employer receives letter from attorney with 10/4/10 as accident date Facts

27. IWCC found claimant gave no notice. • App. Ct. finds defective notice with no prejudice. • The claimant gave notice as complete as he was capable of giving as to the cause of his conditions of ill-being on September 1, 2010, when he told Heil that he could no longer work. Based upon Fenix-Scisson, Raymond, McLean Trucking, & Sohio Pipe

28. Raymond v. Indus. Comm’n, 354 Ill. 586 (1933) “It cannot have been the intention of the Legislature in this kind of an act to require the impossible. It was manifestly impossible for the employee in this case to tell the employer anything about the disablement which the employee himself did not know.” “All the facts were known equally to both parties, and it is difficult to perceive any just theory upon which the employee would be bound to draw the correct medical inferences from those facts and the employer be excused therefrom.” • The employer was aware the employee was sick and had to quit work as a result of his symptoms, although the exact cause was unknown. • The employer knew as much about the nature of the illness as the employee, neither one of them could be blamed for a failure to know. The Act requires the employee to “place the employer in possession of the known facts within the statutory period, but that a defect or inaccuracy in the notice is not a bar unless the employer is unduly prejudiced thereby.” Fenix-Scisson Const. Co. v. Indus. Comm’n, 27 Ill.2d 354, 357 (1963).

29. McLean Trucking Co. v. Indus. Comm’n, 72 Ill.2d 350 (1978). Sohio Pipe Line Co. v. Indus. Comm’n, 63 Ill.2d 147, 151 (1976). The employer was timely notified of the employee’s disability and hospitalization, but was not informed of any facts that would lead it to believe that the employee suffered an accidental injury for which compensation might be claimed. The Court held that the claimant was not barred from seeking benefits under the Act. • A truck driver collapsed at home and died shortly after returning from work. The employee’s son telephoned a supervisor and informed him that his father had passed away. • The Supreme Court held that the notice given by the son was “as specific as it could be under the circumstances” and that the employer had the burden of proving that it had been unduly prejudiced by the notice. • “The notice requirement cannot be unreasonably construed so as to compel the impossible—to require a claimant to give notice of what he does not know

30. In such cases, notice of the accidental injury must be given within 45 days from the date when “both the fact of the injury and the causal relationship of the injury to the claimant’s employment would have become plainly apparent to a reasonable person.” Peoria County Bellwood • The application of the “manifestation date” standard under circumstances when causation is not readily apparent should be flexible, fact-specific, and guided by considerations of fairness. Durand • To require the claimant to prove the exact date on which he inhaled the dust that caused the histoplasmosis and to prove that he gave notice 45 days from that date would require the claimant to do the impossible. • The letter was sent within 45 days after the claimant learned that his conditions of ill-being were causally related to a workplace accident (on October 4, 2014). App. Ct. likens it to repetitive trauma notice cases.

31. The evidence established that the claimant’s conditions of ill-being are causally connected to an accident that occurred when an employer-employee relationship existed, although the causal connection between the accident and the conditions of ill-being was not apparent until after the employment had ended. • Failure to discover the causal connection until after the employment relationship had ended does not justify denying the claimant benefits under the Act under the facts of this case. • See White v. IWCC, 374 Ill.App.3d 907, 912 (2007): a repetitive trauma “accident date” can occur after the claimant’s last day of employment with the employer. “Accident” date after employment ends.

32. What is the current state of the notice standard? • Flexible • Case-by-case • Don’t check a box! • Condition without cause isn’t enough • Manifestation date impacts notice period • Must give condition and cause within 45 days of the manifestation date. • Repetitive trauma injuries are not the only injuries that can “manifest” after employment ends. Exposure or injury on a specific date may not “manifest” until diagnosis is made after employment ends. Where do we go from here?