Two days ago we posted part one of a law overview created for insurance companies.  Here is part two.


IV.  Notice


Before filing a claim with the Workers’ Compensation Commission, there are certain requirements an employee must meet.


A.        An injured employee must give notice to the employer as soon as practicable but not later than 45 days after sustaining an accidental injury arising from the employment. 


B.        In repetitive trauma cases, the employee must allege and prove a single, definable accident.  The date of such an accident, from which notice must be given, is the date when the injury “manifests itself.”  The “manifestation date” is 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 the reasonable person.  In White v. Workers’ Compensation Commission, 374 Ill.App.3d 907 (4th Dist. 2007), the employee filed an adjustment of claim for alleged repetitive trauma injuries to his right and left shoulders and back.  The employee alleged his last date of employment as his injury date.  Although the employer knew of the employee’s alleged injuries, at the time indicated on the employee’s application there was no causal connection opinion. The appellate court affirmed the decision of the Commission, finding that the employee failed to give notice of his alleged work injury within the 45-day requirement. 



V.  Accident


After having determined whether an employer/employee relationship existed, the next step would be to determine whether the alleged accident arose out of and in the course of employment. 


A.        The words “arising out of” are primarily concerned with causal connection to the employment.  For an injury to “arise out of” the employment, there must be some increased risk to which the employee is subjected as compared to the general public.  Nascote Industries v. Industrial Commission, 353 Ill.App.3d 1056 (5th Dist. 2004). 


B.        The words “in the course of” refer to the time, place, and circumstances of the accident.  Martinez v. Guttman Leather, LLC, 372 Ill.App.3d 99 (1st Dist. 2007).



VI.  Causal Connection


Whether a causal connection exists between the employee’s current condition of ill-being and his work-related accident is an issue that commonly arises in situations where an employee is suffering from a preexisting condition at the time of his alleged injury.


A.        In Sisbro, Inc. v. The Industrial Commission, 207 Ill.2d 193 (2003), an employee was injured when he twisted his right ankle as he stepped down out of the employer’s delivery truck and into a pothole.  At the time of the injury, the employee had Type II diabetes.  The injury caused an onset of a degenerative condition in his right foot making him unable to work.  At issue was whether the employee’s disabling condition was causally related to the work injury.


The appellate court held that the employee’s condition was not compensable under the Act because the employee’s health had deteriorated to such an extent that normal daily activity could have caused the injury (also known as the “normal daily activity exception”) or because the activity which caused the injury presented risks no greater than those to which the general public is exposed.  The Illinois Supreme Court, however, reversed and reinstated the Commission’s finding that the injury was in fact compensable.  The court held that it is for the Commission to decide from the record whether the injury is compensable, and if there is an adequate basis for the finding that an occupational activity aggravated or accelerated a preexisting condition and thereby caused the disability, then the Commission’s award must be affirmed.


The effect of this case is that in order to deny compensability in preexisting injury cases, employers must prove that the employee suffered from a pre-existing condition and that the work activities engaged in by the employee posed no significant risk greater than that to which the general public is exposed to on a regular basis.


We’ll post the third part in a day or two.


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By Michael Helfand