The Illinois Workers’ Compensation Act requires that an injured worker give notice of a work accident as soon as practicable, but not later than 45 days after an accident. However, the legislature has mandated a liberal construction on the issue of notice in that 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.
When you are injured at work, you should give notice of the accident as soon as possible. Notice can be written or verbal, but it does not take a rocket scientist to figure out that written notice will always be easier to prove than verbal notice. You can save yourself a lot of time and heartache by giving notice in writing. Whenever you give notice of accident in writing, keep a copy for your records. If you must, snap a photo of the accident report with your smartphone before you turn it in to your employer. If you give verbal notice, write down the person you gave the notice to, and the date of the notice along with any co-workers or witnesses that were present.
These days, many employees are in contact with their employers via email throughout the day. If you email your employer about the accident, make sure you keep a copy of that email. And yes, print one off just in case. If you text your employer about the accident, keep a copy of the text and any response you receive from your employer. If they don’t text you back, it is best to follow up with a phone call or an email.
What if you mess up? Well, the Illinois Supreme Court tells us that the giving of notice within 45 days of an accident is jurisdictional and a prerequisite of the right to maintain a proceeding under the Act. But this applies only when NO NOTICE WHATSOEVER is given to the employer. When some notice is given, but it is defective or inaccurate, then the employer has to show that they were unduly prejudiced by the defective notice.
How can an employer be unduly prejudiced? The Illinois courts looked to Professor Arthur Larson for that answer. Professor Larson wrote the treatise “Workers’ Compensation Law”. It was the first publication to treat workers’ compensation as a distinct area of the law. It is still being updated and published today, and lots of lawyers and judges use Professor Larson’s treatise when arguing about difficult or unusual scenarios that pop up from time to time in workers’ compensation cases.
Professor Larson said this about defective notice:
As to notice of injury, however, both courts and legislatures have been inclined to ask whether either of the two purposes of the notice statute has miscarried because of literal compliance with the notice provisions, the two purposes being the facilitation of prompt medical attention and the provision of opportunity for immediate investigation of the circumstances of the accident.
What does that mean? That means that the notice requirement is designed to accomplish two things. First, it makes sure that the employee gets medical treatment as quickly as possible in order to mitigate any adverse consequences of delayed treatment. If your employer knows about an injury, then they can get you to a doctor quickly to get you treatment. Delays in treatment can be very detrimental to recovery and can greatly increase the costs associated with a workers’ compensation claim.
Secondly, the employer is entitled to the opportunity to investigate the accident and determine whether the injury is in fact work related. To deprive the employer of the right to investigate the accident can lead to prolonged litigation.
If you give defective notice, the employer must show that due to that defective notice your treatment was delayed, and /or that they were unable to perform a sufficient investigation of the accident. If your employer can prove prejudice to the satisfaction of the Commission, then you will lose your case on the notice issue.
There is another way to extend the 45-day notice requirement. We refer to this as “8j” notice. In the event that an 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 recover existed under this Act, then such amounts so paid to the employee from any such group plan shall be credited to or against compensation payment for temporary total incapacity for work or any medical, surgical or hospital benefits made or to be made under the Act.
This means that if you have a group insurance policy that your employer pays for either in whole or in part, then the employer gets to take a credit for any payments made by that plan for your work related injury. But how does this apply to the notice requirement?
In such event, the period for giving notice of accidental injury and filing application for adjustment of claim does not commence to run until the termination of such benefits.
If you use your employer’s group health plan to pay for treatment related to a work injury, then you extend the time period for giving notice of that injury until the last payment is made by that group insurance carrier. For example, let us say that you injured your back lifting a box at work. You don’t report it to your employer, but you do seek medical treatment with your family doctor. Your family doctor charges your group health insurance. That insurance company pays the doctor bill 30 days later. Your 45-day time period for reporting the work injury begins on the same day that the group insurance carrier makes that payment 30 days later. In this scenario, instead of having to report the accident within 45 days of the accident date, you have effectively extended it to 75 days after the date of the accident.
I don’t recommend relying on this method. A doctor is likely going to ask you how you hurt yourself. If you don’t’ tell your doctor about the work injury at the initial visit, you are already well on your way to a denied claim. But if you do tell your doctor that you were injured at work, and the doctor writes down that history of accident and continues to bill your employer’s group insurance plan, then your claim is still in decent shape.
If you do happen to find yourself in this situation, it is best that you speak with an experienced workers’ compensation lawyer as quickly as possible. In my experience, when you are attempting to salvage a case via 8(j) notice, the clock is always ticking and waiting one more day could mean the difference between receiving benefits and losing your case. Contact me for a free consultation. The case you save may be your own.