Synopsis: In a Ruling We Consider Positive for Illinois Business and the Coal Mining Industry, the IL Appellate Court Upholds Denial of Coal Miner’s Claim under the Occupational Diseases Act. Analysis by James F. Egan, JD.
Editor’s Comment: In a positive decision which effects numerous employers in the State of Illinois, the Illinois Appellate Court, Workers’ Comp Division upheld the IWCC’s denial of benefits based upon the Statute of Limitations. In Carter v IWCC, the Appellate Court upheld the Commission’s denied of a claim for COPD or chronic obstructive pulmonary disease under Section 6(c) as time-barred as it was not filed within the three-year Statute of Limitations. In Carter, the claimant was a 22-year coal miner who had worked mainly underground during that period. The mine in question closed on September 24, 2004 which was also the claimant’s last day at the mine and last exposure to coal dust. While he told his foreman he was having breathing problems/congestion, he never mentioned that he had black lung or coal workers’ pneumoconiosis. Claimant filed an Application for Adjustment of Claim with the IWCC on September 3, 2008, nearly four-years after the last claimed exposure.
Competent medical evidence presented by Respondent, which included chest x-rays negative for coal workers’ pneumoconiosis revealed the claimant was diagnosed with COPD. While the diagnosis did confirm Mr. Carter’s COPD was secondary to the inhalation of coal dust along with his smoking history, there was no diagnosis of pneumoconiosis. It is important to note claimant’s own treater also diagnosed COPD and not pneumoconiosis.
In March 2009, the Department of Labor issued an SSAE in connection with Mr. Carter’s concurrent claim for federal black lung benefits indicating he did not have coal workers’ pneumoconiosis and did not have a totally disabling respiratory or pulmonary impairment caused in part by pneumoconiosis. Clearly the DOL had no other logical alternative upon reflection of the medical evidence. Accordingly the DOL denied federal benefits.
The Arbitrator denied benefits under the IL Occupational Disease Act as untimely as the Act places a three-year Statute of Limitations on benefits with an exception for pneumoconiosis which extended the Statue to five-years.
Pursuing benefits under the Occupational Disease Act, Petitioner presented a case in chief in which his expert opined no distinction could be made between COPD and coal workers’ pneumoconiosis and argued that as such one could not deny the claim as untimely. Claimant argued that based upon this argument the five-year Statute must include COPD caused by exposure to coal dust.
The Appellate Court, WC Division disagreed; holding the plain terms of the exception to the Statute of Limitations was for coal miners’ pneumoconiosis and not COPD. The Court held the exception clearly does not apply to all disabilities caused by exposure to coal dust and had the legislature intended to include all disabilities to do so, they could have done so. The Court went on to distinguish claimant’s expert noting that his doctor had not provided any scientific reason to apply different limitation periods to coal miners alleging COPD, as opposed to pneumoconiosis and that claimant’s own doctor agreed with Respondent’s expert in his diagnosis.
The Court also rejected an equal protection argument that by setting the Statute of Limitations as it has been set, miners with COPD were being treated differently that “similarly situated” miners with coal workers’ pneumoconiosis. The Court held that the two diagnosis were clearly shown to be different and therefore claimant was not similarly situated as with workers’ with pneumoconiosis.
The author notes this to be a solid decision in which the IL WC Appellate Court upheld the plain reading of the Section 6(c), rather than re-interpreting the legislative intent. The decision also appears to continue a recent, positive trend in which the Commission, the Circuit Courts along with the Appellate Court have resisted an urge to reverse well-thought out opinions by Arbitrators which are supported by the manifest weight of the evidence.
This article was researched and written by James F. Egan, JD who is our coal mining defense expert, along with handling numerous defense roles. Feel free to contact Jim about this article at firstname.lastname@example.org.
Synopsis: Does IL WC Still Have a Statutory Notice Defense?
Editor’s comment: Last week’s article about the IL Appellate Court, WC Division ruling in Tolbert v. Illinois Workers’ Compensation Commission, Plaintiff/Petitioner suffered an alleged and questionable occupational exposure to pigeon and sparrow droppings. The ruling appears to have led some observers to question whether our statutory notice requirement is still valid due to the strident pro-Petitioner tone of the Appellate Court’s ruling.
Unlike other states, our IL WC Act has relatively few statutory defenses. The “45-day” notice requirement in Illinois is one such statutory defense. Section 6(c) of the IL WC and OD Acts require the claimant to give notice of the accident or occupational exposure "to the employer as soon as practicable, but not later than 45 days after the accident." Section 6(c) further provides that "[n]o 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."
In the Tolbert ruling, the unanimous majority ruling noted the Commission found Claimant's last day of work for the employer was August 31, 2010. Therefore, Claimant was required to give the employer notice of a work injury or exposure at least by October 15, 2010.
The Arbitrator and Commission found Claimant did not give requisite statutory notice until November 9, 2010, when the employer received a letter from the claimant's attorney well beyond the 45-day requirement of Section 6(c).
The majority opinion confirmed the legal standard of whether a given claimant gave the employer timely notice required by section 6(c) of the Act is a finding to be made by the Commission which will not be disturbed on appeal unless it is against the manifest weight of the evidence. The Court’s members noted the purpose of the notice requirement is "both to protect the employer against fraudulent claims by giving him an opportunity to investigate promptly and ascertain the facts of the alleged accident and to allow him to minimize his liability by affording the injured employee immediate medical treatment." The requirement the employee provide notice is jurisdictional, and the failure of the claimant to give notice will bar the workers’ comp claim. However, a claim is only barred if no notice whatsoever has been given. If some notice has been given, but the notice is defective or inaccurate, then the employer must show they have been unduly prejudiced.
From our perspective, the Appellate Court majority then looks to an undisputed phone call that took place on September 1, 2010. In that call, the employee advised the supervisor he thought he had cancer. There was a significant factual dispute present. To the extent the Commission ruled against Plaintiff/Petitioner, we would assume the reviewing court would give deference to the IWCC’s findings. In our respectful view, we don’t feel that occurred. Actually, it doesn’t appear the supervisor was rude or disrespectful to the worker—when/if a report of cancer was provided, it would appear the supervisor would not typically feel that might be related to the normal work at Respondent and would not have inquired further.
However, we also note there are numerous mistakes and problems caused by the handling of this matter by the defense attorney assigned. As we advised last week, someone had to stipulate this seasonal worker was an “employee” for a date of exposure long after the worker left the employ of Respondent. As veteran defense lawyers, we would never enter into such a stipulation.
Similarly, it does not appear defense counsel was aware in presenting a statutory notice defense consistent with Section 6(c) of our IL WC Act, the employer may have an affirmative duty to demonstrate prejudice. In our view, demonstrating prejudice due to late reporting of an accident or exposure is a simple but necessary task. The employer or its supervisor should have been called at the hearing to testify to their accident/exposure reporting protocols and what they could or might have done if an appropriate report had been provided. It is hard to criticize the reviewing courts when the employer and its defenses were not properly presented in the first instance.
In summary, we feel the ruling provides an excellent review of the statutory notice defense and emphasizes it remains a vibrant and valid statutory defense. While we don’t agree with the outcome, we are sure there are many court observers who do. We appreciate your thoughts and comments.
Synopsis: IL Supreme Court to Decide Bond Requirement for State Treasurer in WC Setting; analysis by Michael L. Shanahan, JD.
Editor’s comment: The Illinois Supreme Court will soon take up a workers’ comp case to determine whether the State Treasurer as ex officio custodian of the Injured Workers’ Benefit Fund is required to post an appeal bond for review of Commission cases.
To provide some background on Illinois State Treasurer v. Illinois Workers’ Compensation Comm’n., the claimant worked as an at-home care-giver for an elderly blind man. The claimant testified that she normally wore slippers around the house; however, she would change into regular shoes before walking downstairs. Claimant testified she was putting on her shoes at the top of the stairs when she fell, hit her head against a wall, and lost consciousness.
Claimant subsequently filed a workers’ compensation claim against her employer, the elderly man. Since he did not have workers’ comp insurance, the Illinois State Treasurer was named a co-Respondent as custodian of the Injured Workers’ Benefits Fund. The IWBF was created in 2005 to provide benefits to workers whose employers do not have insurance and it’s funded by penalties and fines collected by the Commission from uninsured employers.
At trial, the arbitrator found the injury to be compensable and awarded benefits. The Commission unanimously affirmed the arbitrator’s decision. The Treasurer appealed. Normally, section 19(f)(1) of the Workers’ Compensation Act (820 ILCS 305/19(f)(1)) requires the party seeking review to obtain an appeal bond. The appeal bond provides security to ensure payment on appeal. The bond also vests the circuit court with jurisdiction to review an award made by the Commission. However, the Act expressly exempts “every county, city, town, township, incorporated village, school district, body politics or municipal corporation against whom the Commission shall have rendered an award for the payment of money.”
On review, the IL WC Appellate Court reversed the Commission’s decision after concluding the Claimant had “failed to present evidence supporting a reasonable inference that her injuries arose out of a risk associated with her employment.” However, Claimant filed a motion for rehearing and asserted the court lacked jurisdiction on two separate grounds. First, Claimant argued the Court was barred from review as it involves a claim against the state. Next, the court did not obtain jurisdiction since the Treasurer failed to file an appeal bond. The Appellate Court did not find the first argument persuasive but the second posed a more difficult question.
With regard to the failure to obtain a bond, the Treasurer argued it was exempt from the bond requirement under section 19(f)(2). The Court disagreed based on the plain language of the Act. Essentially, the Court found that if the legislature intended to limit the requirement to employers, it would have simply said so. Plus, since the Act specifically lists certain entities who are exempt, it is unlikely the Treasurer was an intended exemption as it was not specifically listed. Nonetheless, the issue will ultimately be decided by the Illinois Supreme Court.
At the outset, an appeal bond must be considered in terms of the strategy of litigation if an adverse decision is rendered. For us, this is a reminder of the importance of communication with our clients. If there is an adverse decision, we have twenty days to meet all of the preliminary requirements prior to taking the work comp fight to state court for review. The State Treasurer may very well have won in the Appellate Court; however, now the focus has shifted to whether the Treasurer is exempted from the bond requirement.
Please direct all questions or comments to Michael L. Shanahan at email@example.com