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Yellow Freight Systems v. Ind. Com.

OPINION FILED JUNE 13, 1984.

YELLOW FREIGHT SYSTEMS, PETITIONER-APPELLANT,

v.

THE INDUSTRIAL COMMISSION ET AL. (LURTON H. PEPPER, RESPONDENT-APPELLEE).



Appeal from the Circuit Court of Ogle County; the Hon. John L. Moore, Judge, presiding.

JUSTICE WEBBER DELIVERED THE OPINION OF THE COURT:

Claimant, Lurton Pepper, filed an application for adjustment of a claim seeking workers' compensation benefits against his employer, Yellow Freight Systems, Inc. (Yellow). An arbitrator found Pepper to be totally and permanently disabled and awarded him $304.21 per week for life, together with $220 for necessary medical expenses. On review before the Industrial Commission, the decision of the arbitrator was affirmed and the Commission added $5,942.22 for necessary medical expenses. On further review the circuit court of Ogle County confirmed the Commission and this appeal followed.

Pepper was a truck driver for Yellow. On August 5, 1977, he made a run from Palatine to Effingham, starting about 3 a.m. After about 30 minutes in Effingham, he started back for Palatine about 9 a.m. Early in the return trip he experienced difficulty with his rig and stopped at the roadside to crank a dolly pad up since it was too near the pavement and was scraping. The dolly was covered with dirt and grime and it required considerable physical exertion to do the cranking. Upon resuming driving Pepper experienced chest pain which spread to his left arm, and he began to perspire. He again pulled off the road and another Yellow driver who was proceeding behind him also stopped to see what was wrong. They then went on to a truck stop, where Pepper obtained some across-the-counter medication for indigestion and then continued the run to Palatine. There was another stop for additional patent medicine, and Pepper was able to complete the run, although experiencing varying degrees of pain and discomfort throughout.

Upon arriving at Yellow's terminal in Palatine, Pepper, according to his testimony before the arbitrator, informed the operations manager, Sutton, of his pain and illness. This was corroborated by the other driver accompanying him. On the next day, August 6, Pepper again experienced pain and called Yellow by telephone to say that he was unable to work. He then went to the Rochelle Community Hospital, where his family physician admitted him into the intensive care unit. Initial hospital tests were inconclusive, but angina or myocardial infarction were suspected. He was released from the hospital on August 13, 1977, and remained at home with medication and orders to rest. On September 11, 1977, he was admitted to St. Anthony's Hospital in Rockford under the care of a cardiologist, where a coronary angiogram was performed. This test showed an occluded right coronary artery and a hypokinetic inferior wall, suggesting that Pepper had suffered a heart attack.

At arbitration Pepper testified that either from the Rochelle hospital or immediately upon his release he phoned Sutton to inform him that "they found out it was my heart." He also testified that he phoned the same information to the night operations manager of Yellow, Cirone by name. Pepper's wife testified that she, too, had phoned Cirone to tell him that her husband had suffered a heart attack.

At the hearing on review before the Industrial Commission, both Sutton and Cirone denied receiving any such phone calls. However, Sutton stated that he knew, although he was not sure how, Pepper had suffered a heart attack. This knowledge came to him approximately one week after August 5.

Between the time of hearing on arbitration in July 1981 and the hearing on review in October 1981, Pepper underwent coronary bypass surgery. The medical bills for this were introduced at a further review hearing in April 1982.

On appeal in this court Yellow has raised two issues: (1) whether proper notice was given to it within the statutory 45-day period, and (2) whether the Commission's determination that Pepper is permanently and totally disabled is against the manifest weight of the evidence.

As to notice: section 6(c) of the Workers' Compensation Act (Ill. Rev. Stat. 1981, ch. 48, par. 138.6(c)) provides in pertinent part:

"(c) Notice of the accident shall be given to the employer as soon as practicable, but not later than 45 days after the accident. * * *

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."

Compliance with this section is accomplished by placing the employer in possession of the known facts within the statutory period. (Seiber v. Industrial Com. (1980), 82 Ill.2d 87, 411 N.E.2d 249.) Notice to management-level employees will suffice. Atlantic & Pacific Tea Co. v. Industrial Com. (1977), 67 Ill.2d 137, 364 N.E.2d 83.

• 1 Pepper's testimony is that he informed Sutton, apparently a management employee, of his illness directly upon his return to Palatine. This was corroborated by his fellow driver. He also testified that he telephoned Cirone either from the hospital or upon his release August 13, well within the 45-day limit. Pepper's wife stated that she also communicated with Cirone on the subject from the hospital. Both Sutton and Cirone denied receiving these communications, but in contradiction, Sutton stated that he knew of Pepper's heart attack approximately one week after it occurred. This indicates actual knowledge, regardless of ...


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