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Employee Prevails on Concurrent Employment Notification Issue

On Behalf of | Dec 22, 2021 | Employee Prevails |

In a case involving two consolidated claims against an employer, a claimant was able to prevail on the issue of whether he adequately notified his employer of concurrent employment. See Claimant successfully proves he notified employer of concurrent employment. Illinois Workers’ Compensation Law Bulletin, Volume 29, Issue 11, August 13, 2021, page 3.[1]  In the case discussed in the article, Prairie Material v. (Schultz, Jeff), IWCC, 29 ILWCLB 113 (Ill. App. Ct., 2nd 2021 – an unpublished appellate opinion), a truck driver filed two separate workers’ compensation claims against the same employer that were subsequently consolidated, and that involved an injury to the driver’s left elbow and a bilateral elbow and repetitive stress injury to his right shoulder, respectively.[2]  The truck driver was awarded both temporary total and temporary partial disability benefits at arbitration, with said award being based in part on the calculation by the arbitrator of the employee’s average weekly wage (or AWW).  On appeal, both the Commission and the circuit court affirmed the arbitration award and decision, as did the appellate court as well.[3]  The employer had continually appealed the arbitrator’s decision, because the employer claimed that it had not received adequate notice of the truck driver’s concurrent employment which, according to the employer, meant that the calculation of the driver’s AWW was faulty.  The truck driver in turn asserted that the person with whom he regularly discussed his concurrent employment, while at work at and/or on the employer’s premises, was an authorized agent of the employer, for purposes of successfully satisfying the notification requirement.[4]  The employer disputed this, claiming that the driver’s sharing of details regarding his concurrent employment was not enough to constitute adequate notice of the additional employment, since there was supposedly not enough to also conclude that the person with whom the driver discussed his concurrent employment was also acting as an agent of the employer.  However, the Commission, circuit court, and appellate court all disagreed, with each holding that the person with whom the truck driver discussed his concurrent employment, a yard supervisor, was in such a position of importance and authority with the employer, that the driver telling him about concurrent employment was adequate notice to the employer of this fact, since the supervisor would inevitably report this information to his fellow supervisors and senior leadership.[5]  In affirmance of the driver’s award, the appellate court made use of the standard of review known as “manifest weight of the evidence,” in that the court looked at evidence put forth by the truck driver and utilized by the Commission, and found that, based on the preponderance of the evidence, the truck driver had proven that his employer had been adequately and fully placed on notice of the driver’s concurrent employment, and that therefore the Commission’s decision to affirm the arbitrator’s award was not against the manifest weight of the evidence.[6]  This case illustrates the concept that, if a claimant shares relevant and legally substantive information with someone in a position of considerable authority with an employer, this can constitute adequate notice to the employer of some things in certain circumstances.

[1]Claimant successfully proves that he notified employer of concurrent employment. Illinois Workers’ Compensation Law Bulletin, Volume 29, Issue 11, August 13, 2021, page 3.

[2]See Id.

[3]See Id.

[4]See Id.

[5]See Id.

[6]See Id.

[1]Claimant successfully proves that he notified employer of concurrent employment. Illinois Workers’ Compensation Law Bulletin, Volume 29, Issue 11, August 13, 2021, page 3.

[1]See Id.

[1]See Id.

[1]See Id.

[1]See Id.

[1]See Id.

Attorney Matthew Ludwinski