6-9-2014; Sometimes You're the Pigeon, Sometimes You're the Statute in IL WC; SB 3287 Becomes Law; Important Mental Health Records Privacy Ruling and much more

Synopsis: Plop!! IL Appellate Court, Workers’ Compensation Division Reverses a Pigeon Droppings Exposure Claim on Manifest Weight.


Editor’s comment: Our office wags were thinking of all the pigeon jokes we could remember but this ruling isn’t that funny for this Illinois employer who may feel the ruling is COO-COO. Kidding aside, this claim involves a one-pack-a-day cigarette smoker who admitted to smoking since age 15. He was a seasonal worker. The employer operates grain elevators.


As an academic thought, we note the reviewing court’s ruling uniformly refers to the onset of this condition as an “accident.” With respect to the members of the Appellate Court, this claim is much more accurately analyzed as an occupational disease claim---Illinois has a parallel series of benefits for occupational exposures called the Occupational Disease Act. This man didn’t suffer an accidental injury, he has a disease.


As a second academic thought, we are chagrined to see Petitioner’s counsel and the Arbitrator, IWCC, the Circuit and Appellate Courts all allowed this claim to move forward on a date of exposure which everyone agrees was after employment with Respondent ended. In our respectful view as law school professors and long-time court watchers, we feel this is technically inappropriate and makes our WC/OD system appear confusing and chaotic to people in other states. If the WC/OD coverage had changed during the interim period, this ruling would lead to expensive coverage litigation on who would owe for the risk. In our view, the Arbitrator should have told Petitioner’s counsel at the beginning of the claim or during the hearing to amend the Application to plead a date of exposure when Petitioner was actually employed by Respondent. In our experience, the most liberal Illinois arbitrators across the years have uniformly demanded that occur. In our view, it is a constitutional issue—it is our view the Commission and courts are taking property without due process of law or equal protection under the law to award OD benefits for an exposure that arguably didn’t occur while this worker was employed by Respondent.


At the time of the alleged exposure, the claimant's job duties included cleaning and maintaining grain flats, elevators, and bins. The work environment exposed Claimant to airborne dust particles that included dried pigeon droppings. Claimant began suffering from respiratory problems without a clear cause. There is a dispute about what Petitioner may have said about his departure from employment with Respondent—the supervisor testified Claimant told him Claimant had cancer.


Treating doctors subsequently performed a biopsy and diagnosed Claimant  as having a lung condition called histoplasmosis, which is caused by a fungus usually associated with pigeon droppings. The Arbitrator found Claimant failed to give timely notice of the exposure to the employer and Claimant failed to prove his current conditions of ill-being, which include chest pain and breathing problems, were causally related to his exposure to a fungus that causes histoplasmosis at the workplace. The Arbitrator also found Claimant was not entitled to recover for medical expenses or temporary total disability (TTD) benefits. The Illinois Workers' Compensation Commission affirmed and adopted the arbitrator's decision and made an additional finding Claimant failed to prove he was exposed to histoplasmosis at his workplace. The circuit court entered a judgment confirming the Commission's decision.


If you read the unanimous ruling, we have lots of other academic and legal concerns. From our reading of the decision, you will note Petitioner worked from July 28, 2010 and left employ in less than one month, on August 26, 2010. That is 21 work days. We don’t feel that is a long time for someone to be exposed to anything. We also note there is no scientific evidence from the lung biopsy that provided a level of exposure to the bad stuff in pigeon droppings or the chronicity of the disease. The Appellate Court ruling indicates in two places Petitioner was allowed to testify he was still suffering the effects of the exposure—for any veteran defense attorney, such unfounded, unscientific and self-serving testimony should have been immediately objected to and a request to strike presented to the Arbitrator. Without that proper objection, the reviewing court is correct to consider the evidence for its worth.


There is also no question Petitioner was provided breathing masks and actually changed them regularly during the course of a day. From our review, no one provided any testimony on either side whether the undefined breathing masks would slow or stop an exposure to contaminants in airborne pigeon dung. Further, there is no evidence from any expert in the record outlining the incidence and prevalence of histoplasmosis in such workers, either at this employer or elsewhere.


Another concern is the ruling says things like this: “The flat (or silo where Petitioner worked) contained a lot of debris, including bird droppings, and the cleaning work produced a lot of airborne dust. The claimant testified that he saw a lot of pigeons inside the flat.” We ask the rhetorical question—what’s a “lot”? Is that bird droppings seven feet deep or the occasional bit that might upset a sensitive type? What are a “lot” of pigeons—hundreds, tens, three?


Having started the facts in that fashion, the ruling then goes on to attack the IME report of Respondent, ruling it is confusing. The part that isn’t felt to be confused is this statement “Dr. Bruyntjens (the IME doctor) then opined, in general terms, that "normal hosts with primary pulmonary histoplasmosis recover eventfully more than 99% of the time." The decision also states “the doctor acknowledges that it takes minimal exposure to contract histoplasmosis, but that it is an "extremely common and almost invariably benign infection." He opines that "a large majority of pulmonary or infectious disease specialists would have elected not even to treat the [claimant]" and that the claimant's "history of smoking with a near normal pulmonary function test with exposure in a benign condition like histoplasmosis, is a concern due to the smoking not the histoplasmosis." We don’t see anything from the treaters that counters these opinions. Either way, it is hard to say there is no scientific evidence to support denial and the decision of the Commission is patent error.


If you read between those lines and review the web research on histoplasmosis, the condition sounds like something nasty but note the IME doctor says it is a “benign infection.” If you look at the dictionary reference to a disease as ‘benign;’ it means the condition isn’t harmful or disabling. In short, the IME doctor says Petitioner didn’t and doesn’t need medical care or lost time for pigeon dropping exposure.


Finally, what happened to those IL Supreme Court rulings in Sisbro and Twice Over Clean—in those two major cases, our highest court said the reviewing courts weren’t supposed to substitute their judgment on facts for those of the IWCC. For all the reasons outlined above, it is our respectful view this decision does precisely that. In the frankest terms possible, we feel the Arbitrator and Commission carefully considered the record and ruled this man’s problems are due to smoking or an unknown non-work-related issue.


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Synopsis: Governor Quinn Signed SB 3287 last week.


Editor’s comment: Ouch. Remember whatever ITLA wants, ITLA gets.


Section 5 of the IL WC Act now says:


Be it enacted by the People of the State of Illinois,

represented in the General Assembly: 

    Section 5. The Workers' Compensation Act is amended by

changing Section 5 as follows:

    (820 ILCS 305/5)  (from Ch. 48, par. 138.5)

    (Text of Section WITHOUT the changes made by P.A. 89-7,

which has been held unconstitutional)

    Sec. 5. (a) No common law or statutory right to recover

damages from the employer, his insurer, his broker, any service

organization that is wholly owned by the employer, his

insurer or his broker and that provides safety

service, advice or recommendations for the employer or the

agents or employees of any of them for injury or death

sustained by any employee while engaged in the line of his duty

as such employee, other than the compensation herein provided,

is available to any employee who is covered by the provisions

of this Act, to any one wholly or partially dependent upon him,

the legal representatives of his estate, or any one otherwise

entitled to recover damages for such injury.


We are confident this is going to open up the flood gates to sue anyone who provides “safety service, advice or recommendations” for companies or individuals that aren’t “wholly owned” by the employer, insurance carrier or broker. We have several defense attorneys in our KCB&A defense team who don’t feel this legislative concept will expand to allow litigation against lots of “non-safety” advisors. For those of us who have watched what happened in the reviewing courts under the Scaffold Act, we assure you our judiciary can be wildly creative at the urging of the Illinois Plaintiff bar. In our view, there is a reason an Illinois judge can receive over $1M per year over their lifetime for only nine years of judicial service. If you want the math on that issue, send a reply.


You may want to watch this space to see what happens—we promise to continue to report it.




Synopsis: Mental Health Record Secrecy Waived Where Plaintiff Had Records Reviewed by Her Experts.


Editor’s comment: For claims adjusters, risk managers and newbie nurse case managers, please note mental health records aren’t amenable to a subpoena. In order to get them, you have to ask opposing counsel or the claimant. There are lots and lots of rules that both sides may have to follow if the litigation is to proceed without the psych records becoming public.


In the common law ruling in Deprizio v. MacNeal Memorial Hosp. Ass'n, our First District Appellate Court ruled the Plaintiff/Patient waived her privilege against disclosure of mental health records when they were reviewed by her experts.


The ruling notes the fact a patient's expert witness had not yet testified in the patient's medical negligence suit alleging the patient suffered from a lithium overdose did not preclude a finding the patient waived her privilege against disclosure of her private mental health records reviewed by her experts. The patient's designation of expert witnesses in discovery left no doubt the experts would testify as to certain records that would otherwise be privileged.


The Appellate Court also noted requiring the trial court to wait for live testimony before finding the statutory privilege waived not only would prove inefficient, but would be an illogical interpretation of the Mental Health and Developmental Disabilities Confidentiality Act. While we aren’t sure how an Arbitrator or Commissioner would handle the issue, we feel confident they might refer to this ruling for guidance.


The defense team at KCB&A is very familiar with handling psych claims in both the general liability and workers’ comp arenas. We have a number of solid defense experts for your consideration. Brad Smith is our IL liability team expert—he can be reached at bsmith@keefe-law.com Kevin Boyle is our IN defense pro and can be reached 24/7/365 at kboyle@keefe-law.com. If you have a WC psych issue, simply send a reply.