Tolbert v. Illinois Workers' Compensation Commission 
By: Katie S. Lonze - Associate - Nyhan, Bambrick, Kinzie & Lowry


The Claimant had previously worked for the employer full time from 1998 until 2008. He began working as a seasonal employee on July 28, 2010, cleaning grain bins, flats, and elevators. The work produced a lot of airborne dust, requiring the claimant to wear a dust mask. He testified that he went through three to five dust masks per day. The Claimant began suffering from respiratory problems in August 2010. His treating physician, Dr. Stephen Norris, initially thought that he might be suffering from cancer and ordered a biopsy. However, the claimant was diagnosed with histoplasmosis on October 22, 2010. The Claimant’s last day of work was on September 1, 2010. There was a dispute as to what was said.

Histoplasmosis is a respiratory diseases caused by a fungus associated with bird droppings. The Arbitrator found that the Claimant failed to both give timely notice of his exposure and prove causation, and denied medical expenses or TTD. The Commission and Circuit Court affirmed. The Appellate Court reversed.

The Appellate Court found that the evidence established the presence of airborne dust containing dried bird feces within the Claimant’s work environment, and that dust containing bird feces is a cause of histoplasmosis. It based its finding on the Claimant’s testimony and medical records, which described the presence of bird droppings and pigeons in the work area. Moreover, the Court relied on a letter from Claimant’s treating physician dated November 11, 2010, which stated that it was likely that the Claimant contracted a lung infection from being around the grain dust and the pigeon feces and/or mold. It further found that the IME doctor’s report supported Dr. Norris’ opinion.

The Appellate Court also reversed the Commission’s finding on causation, which had relied upon the IME report. The Appellate Court noted that the IME doctor offered no opinion as to whether the Claimant’s histoplasmosis could be a causative factor of his current condition of ill-being. 

The Court’s handling of notice issue, however, will likely have the greatest future impact. The Appellate Court reversed the Commission’s finding that the Applicant gave no notice. It likened the facts of the case to repetitive trauma cases and found that, because the Claimant had not yet been diagnosed with histoplasmosis at the time he left his employment, he was unable to inform the employer that he, in fact, suffered from that disease. By simply informing his employer that he was no longer able to work due to his general ill-being, his notice was as complete as it could have been. Further, it did not matter that the Claimant’s accident date was after his employment ended. The Court held that evidence established that the claimant’s conditions of ill-being were causally connected to an accident that occurred when an employer-employee relationship existed, even though the causal connection between the accident and the conditions of ill-being was not apparent until after the employment had ended. Failure to discover the connection until after termination of the employment relationship does not justify denying the claimant benefits under the Act under the facts of this case.

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