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Crow's Hybrid Corn Co. v. Indus. Com.

OPINION FILED MAY 26, 1978.

CROW'S HYBRID CORN CO., APPELLANT,

v.

THE INDUSTRIAL COMMISSION ET AL. — (CARL L. HARTMAN, APPELLEE.)



Appeal from the Circuit Court of Iroquois County, the Hon. Robert J. Immel, Judge, presiding.

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT:

Rehearing denied September 29, 1978.

In this workmen's compensation case, an arbitrator found no causal connection between the condition complained of, a hernia, and an accident alleged to have occurred September 23, 1971. The Commission found the arbitrator's decision "erroneous," but also denied the claim of Carl L. Hartman for failure to prove "notice of hernia pursuant to Section 6(c)(1)" of the Workmen's Compensation Act (Ill. Rev. Stat. 1971, ch. 48, par. 138.6(c)(1); hereafter Act). The circuit court of Iroquois County reversed the decision of the Commission and remanded the cause with directions that the Commission enter a decision awarding claimant "medical, hospital and surgical expenses related to the hernia and stomach surgery," temporary total compensation for lost time, and compensation for the 100% loss of the use of one testicle. The Commission did so. The circuit court order confirming the Commission is appealed from pursuant to Supreme Court Rule 302(a). 58 Ill.2d R. 302(a).

On appeal, our review in workmen's compensation cases "typically is limited to a determination of whether findings of the Commission were against the manifest weight of the evidence." (Pope v. Industrial Com. (1970), 45 Ill.2d 48, 52.) Before we can reach that issue, however, we are compelled to resolve threshold problems.

The first issue is the sufficiency and timeliness of claimant's notice.

On September 23, 1971, claimant, while "moving gates in the old dryer" in the course of his employment with Crow's Hybrid, dropped one because "something hurt me on the side." Although he felt a bulge, which grew larger, in the area of the groin, he continued to work until the middle of December 1971. During that time claimant received no treatment but did wear a truss. On December 15, 1971, Dr. Dean Hungness diagnosed a hernia and recommended surgery. Claimant's wife testified that, on the same day, she talked to Mr. Crow and informed him that claimant had been injured at work and the doctor had recommended hernia surgery. The claimant was hospitalized from December 16, 1971, until January 18, 1972, during which time, claimant testified, Crow visited him several times.

Claimant maintains the employer received notice of his injury by means of Mrs. Hartman's phone call to Crow on December 15, 1971. The employer contends that the phone-call notice is insufficient. The employer cites Fenix-Scisson Construction Co. v. Industrial Com. (1963), 27 Ill.2d 354 (in which the claimant's wife phoned his foreman to tell him claimant was hospitalized and wished to see him), as controlling. As appealing as that case is, it is inapposite. There the wife failed to tell the employer that claimant was hospitalized due to an accident at work. Here Mrs. Hartman's testimony, which is uncontradicted in the record, was that she told Crow the claimant had been injured at work. (The Industrial Commission's finding that the claimant "failed to prove notice of hernia pursuant to Section 6(c)(1)" is apparently concerned with the timeliness of the notice.) A subsequent case is more supportive of the claimant's position. In Andronaco v. Industrial Com. (1972), 50 Ill.2d 251, the only notice given the employer was a phone call from the claimant's wife, who asked to speak to the foreman; unable to reach him, she talked to another man and told him that her husband, the employee, had died from a heart attack that same day; this was found to be sufficient notice without prejudice to the employer. (See Republic Steel Corp. v. Industrial Com. (1962), 26 Ill.2d 32. Cf. Heyworth v. Industrial Com. (1926), 321 Ill. 298.) The employer in the instant case was aware of the claimant's condition: after the phone call Crow visited the claimant in the hospital, and the employer's accountant testified he learned of the claimant's hernia in December 1971. We find Mrs. Hartman's phone call, under these circumstances, constituted adequate notice. The Act provides for oral notice (Ill. Rev. Stat. 1971, ch. 48, par. 138.6(c)(3)). Moreover, "liberality in the matter of notice should be allowed to the extent that it is consistent with the protection of the employer against unjust claims." Republic Steel Corp. v. Industrial Com. (1962), 26 Ill.2d 32, 41.

We next consider the timeliness of the notice. Claimant concedes that notice (on December 15, 1971) was not given within 15 days of the accident (on September 23, 1971) as required by the statute in effect then (Ill. Rev. Stat. 1971, ch. 48, par. 138.6(c)):

"(c) No proceedings for compensation under this Act shall be maintained unless notice of the accident has been given to the employer as soon as practicable, but not later than 45 days after the accident. Provided:

(1) In cases of hernia, notice shall be given the employer within 15 days after the accident."

However, claimant argues that his situation falls under section 8(j) of the Act (Ill. Rev. Stat. 1971, ch. 48, par. 138.8(j)):

"(j) 1. In the event the injured employee receives benefits, including medical, surgical or hospital benefits under any group plan covering non-occupational disabilities contributed to wholly or partially by the employer, which benefits should not have been payable if any rights of recovery existed under this Act, then such amounts so paid to the employee from any such group plan as shall be consistent with, and limited to, the provisions of Paragraph 2 hereof, shall be credited to or against any compensation payment for temporary total incapacity for work or any medical, surgical or hospital benefits made or to be made under this Act. In such event, the period of time for giving notice of accidental injury and filing application for adjustment of claim does not commence to run until the termination of such payments. * * *" (Emphasis added.)

The record establishes that insurance payments were made under the group policy the employer had with the Prudential Insurance Company during the period from January 28, 1972, when the insurance claim was filed, until October 9, 1972, when the payments terminated. This plan covered nonoccupational disabilities. Claimant's notice had been filed long before "the period of time for giving notice" had commenced to run on October 9, 1972. Moreover, this court has construed section 8(j) of the Act in favor of a claimant on facts less favorable ...


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