4-17-2017; Holy Smokes--Firefighter Loses IL WC Claim!!!; Springfield IL WC Update; Meet KCB&A At RIMS in Philly and more

Synopsis: Holy Smokes--Firefighter Loses IL WC Claim!!


Editor’s comment: In an astounding development to all IL WC observers, a majority of the members of our very, very, very liberal IL Appellate Court, Workers’ Comp Division joins with the IWCC and lower court to deny a claim by an IL firefighter. in Johnston v. Illinois Workers' Compensation Commission, the Illinois Appellate Court, WC Division, in a 4-1 decision, agreed a firefighter described as "a heart attack waiting to happen" should not receive workers' compensation benefits for a heart attack sustained simply cleaning his firehouse parking spot of snow.


The Appellate Court's opinion affirmed decisions by the former Arbitrator O’Malley, the Workers' Compensation Commission and Judge David Akemann from the Circuit Court of Kane County. All agreed Claimant Johnston, age 46, had so many risk factors for a heart attack his cardiac event could have occurred "anytime and anywhere," as the Arbitrator described it.  Those risk factors were enough to overcome Illinois' statutory presumption that all heart attacks suffered by firefighters at any time are a compensable injury.


Important Note for WC Risk Managers and Claims Handlers

The facts and expert opinions in this ruling are a solid outline of how to best defend any IL WC heart attack/stroke/death claim whether it involves a firefighter or any worker.

If you need solid defense legal assistance/advice on successfully winning workers’ comp heart attack/stroke/death claims, please send a reply.


Claimant Johnston worked for the East Dundee Fire Protection District for 15 years when he went into work on a 15-degree day in February 2014. A heavy smoker who often brought high cholesterol/salt fast food into work, the 6'1", 265-pound Johnston was in the process of attempting to get healthier. A month before, he had switched to e-cigarettes after 20 continuous years of smoking a pack a day.


It snowed in East Dundee the night before, so after talking with a coworker in the firehouse, Johnston went to clean the area around his car. A coworker found him lying in the snow about 10 minutes later. Within minutes, a team of coworkers performed chest compressions and strapped Johnston to a backboard, using a defibrillator to revive him. They drove him to the hospital in an ambulance. The next day, he underwent emergency quadruple bypass surgery and survived the event.


Two weeks later, Johnston applied for IL workers' compensation benefits. The East Dundee Fire Protection District denied his application, and the matter was heard at an arbitration hearing five months later. At the hearing, four of Johnston's coworkers testified, making note Officer Johnston smoked "quite a bit" and was "not the healthiest eater." Two physicians submitted testimony as well: one who treated Johnston, and the other who examined him at his employer's request.


Johnston's treating physician, cardiologist Dr. Christopher Berry, testified he had counseled Johnston on how to live a healthier life and told him he had coronary artery disease. Dr. Berry testified Claimant Johnston's 15 years as a firefighter could be "considered a risk factor" for coronary artery disease. Johnston had additional risk factors: obesity, a family history of coronary artery disease and a history of smoking. There was evidence Johnston was "mildly diabetic" due to his habitus as well, Johnston noted.


Clearing snow could trigger cardiac arrest in a person with arteries as blocked as Johnston's, Dr. Berry testified, but at that point, it would be just as likely that a heart attack would occur at rest or doing just about anything.


Dr. Dan Fintel, the defense cardiologist who examined Johnston at his employer's request, said simply walking into the cold outdoors could have triggered the firefighter's heart attack. "Any activity on a day in which the ambient temperature was 15 degrees in a cardiac patient can be life threatening or life ending," Fintel testified. Asked whether working as a firefighter was a risk factor for coronary artery disease, Fintel said it could be. Since he did not have access to evidence indicating how often Johnston was exposed to smoke, Fintel could not say for sure.


As we indicate above, former Arbitrator O’Malley considered all evidence and denied the claim. Johnston "was a heart attack waiting to happen, and his employment activities neither aggravated nor accelerated his already severe and highly advanced coronary artery disease," the Arbitrator wrote.


The Workers' Compensation Commission panel affirmed and adopted the Arbitrator's opinion. Circuit Court Judge Dave Akemann who was in IWCC hearing officer earlier in his career, confirmed the decision/denial.


On appeal, Claimant Johnston attempted to persuade the Appellate Court the IWCC's finding was contrary to the "manifest weight of the evidence." Please note IL law has a presumption cardiac issues for a firefighter with five years of service are compensable. I don’t agree with the basis for the “firefighter’s presumption” but the law is the law. My problem with the firefighter’s presumption is the urban legend or myth that all firefighters are surrounded by and breathe clouds of smoke at work every day of every year—in my opinion, very few firefighters actually breathe smoke during regular work that usually involves more medical calls than live firefighting. In this claim, I would assume the Petitioner attorney would have introduced evidence of exposure to smoke during live fires if they had such evidence—the dearth of testimony/evidence of exposure of Claimant Johnston to smoke from a live fire jumps out at anyone reviewing the ruling. What rhymes with “breathing equipment” that protects firefighters from the smoke at the occasional live fire?


Therefore, the IL WC Appellate Court first had to consider whether the East Dundee Fire Protection District presented enough evidence to prove Johnston's coronary artery disease was not linked to work, thus rebutting the presumption in Illinois law that IL firefighters' heart conditions are compensable. After considering the simple facts and Dr. Berry and Dr. Fintel's expert testimony, the Court decided the District presented enough evidence to rebut the presumption.


I salute the four members of the IL WC Appellate Court for writing an excellent and well-reasoned ruling that makes enormous common and legal sense to me.


Justice William E. Holdridge, who we thought of as being from Republican roots in Peoria, dissented in a ruling we feel is about as liberal/radical as any IL WC justice could write. Justice Holdridge thought Dr. Fintel's opinion was insufficient to rebut the presumption.


"Even assuming … that the claimant's coronary artery condition was initially triggered solely by personal risk factors such as smoking and obesity (which is not clear from the evidence), Dr. Fintel lacked sufficient information to conclude that the claimant's condition was not aggravated or accelerated by his occupational exposure to smoke and fumes," Holdridge wrote in his sole dissenting opinion.


We agree with other court-watchers who have been quoted to say, if you follow Justice Holdridge’s logic, it would be virtually impossible to ever overcome the firefighter’s presumption. In my view, Justice Holdridge will never deny a claim by a firefighter, regardless of whether all of the other nine hearing officers, including the Arbitrator, IWCC panel, Circuit Court judge and the other four IL WC justices disagree.


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Synopsis: Springfield Dysfunction Continues in IL Workers’ Compensation.


Editor’s comment: The Illinois Senate Workers’ Comp proposals as part of the so-called 14-Step “Grand Bargain” championed by hard-working Senate President Cullerton and gritty Republican Senator Christine Radogno appear to have died or gone away for the time being. If that gets dredged up again, we will advise.


IL House Democrats passed three proposed bills out of the IL House Labor & Commerce Committee in late March 2017 that may cause more issues to our nutty Illinois workers' compensation system. All three bills are premised on the belief Illinois' workers' compensation problems are due to the “profit-rich” workers’ comp insurance industry.


Rep. Laura Fine (D-Glenview), sponsor of HB 2622, claims a non-profit, taxpayer-capitalized, mutual insurance company will bring more “competition” to the over 300 carriers already providing Illinois WC coverage in this State. Please note most of our sister states have dropped their state-run insurance funds/carriers. This legislative measure is pending in the IL House on second reading. We consider its chancing of being enacted and doing anyone any good to be less than 1%.


The second legislative measure is HB 2525 sponsored by Rep. Jay Hoffman (D-Swansea). This is the same legislation IL House Democrats passed during the previous General Assembly's lame duck session in January. We join with the IL State Chamber to confirm these changes as a phony workers' compensation proposal. The legislation codifies anti-business and anti-local-government case law for


·         Definitions of "in the course of employment" and "arising out of the employment"

·         Maintaining the "any" cause causation standard

·         Evidentiary factors for obtaining and codifying so-called “traveling employee” coverage

·         Requires prior approval for all workers' compensation rates by DOI

·         More unneeded reporting to IWCC and DOI for self-insurers

·         Creates the silly and unneeded WC Premium Rates Task Force

·         Adds a new electronic billing penalty

·         Adds new penalties for delay of authorization of medical care

·         Returns the shoulder to again magically become part of the arm and the hip to miraculously again be part of the leg (in IL work comp)

·         Allows AMA guideline submission for impairment rating for PPD benefits.


This legislation is designed to appear like it is a “reform” when it isn’t. It also in second reading.


Rep. Hoffman also has legislation eliminating the Freedom of Information Act protections enjoyed by self-insured employers both private and public. HB 2703 deletes language that exempts from copying and inspection: (i) any and all proprietary information and records related to the operation of an intergovernmental risk management association or self-insurance pool or jointly self-administered health and accident cooperative or pool; and (ii) insurance or self-insurance (including any intergovernmental risk management association or self-insurance pool) claims, loss or risk management information, records, data, advice or communications.


We will continue to watch for you and report if we see any major legislative changes. We again feel administrative change is the most optimal way to reform our IL WC system.


We appreciate your thoughts and comments. Please post them on our award-winning blog.



Synopsis: We Hope to See You At RIMS in Philly!!!


Editor’s comment: The team at KCB&A will be there and not be square—if you want to hook up with the top legal defense team for the states of Illinois, Indiana, Iowa, Michigan and Wisconsin send a reply.


I will be there this Saturday and going to meetings and more meetings. If you are going to be there, let’s meet for a sarsaparilla!