4-24-17; You Can't Legislate Causation in WC; IWCC Can't Enforce Its Rulings, Analysis by John Karis; Should Adjusters Do IME Background Letters and More

Synopsis: Holy Smokes, Part II--We Told You Before, We Tell You Again, You Can’t “Legislate” Causation In Illinois Workers’ Comp.

Editor’s Comment: Governor Rauner, IL Senator Christine Radogno and other Illinois legislators were fighting to change “causation” in IL workers’ comp with an eye on saving billions for IL business and local gov’t. The defense team at KCB&A told all of our readers and anyone who will listen, you can’t change causation because it is a common sense issue that isn’t truly amenable to legislative fiat. As we have advised, Governor Bruce Rauner controls the jobs of our administrators and if he tells them to be conservative on causation or look for other work, they probably will be conservative on causation. Doesn’t seem that complex to me.

Illinois firefighter unions have spent literally millions to convince our General Assembly and our nutty legislators to create a “presumption” of causation on cardiac, pulmonary and cancer problems. This approach is precisely the opposite of what the Governor wants but the lobbyists for the unions were still seeking to liberally “legislate” causation. In short, Illinois has a statutory presumption of WC causation if a firefighter begins to suffer from heart problems. I assure our readers it is a “rebuttable presumption” and thankfully, the facts still have to point to the problem being related to work.

When the IL General Assembly added Section 6(f) to the Workers’ Compensation Act in 2007, I was quoted to confirm the fear would be IL firefighters with at least five years’ experience might be summarily entitled to expensive WC benefits if they had heart attack “anywhere on the planet, doing anything on the planet.”

But two shocking recent rulings by our Appellate Court, WC Division in Johnston v. IWCC and now Simpson v. IWCC have now made it crystal clear “that’s not going to be the case,” as I was recently quoted in a national publication.

Section 6(f) of the IL WC Act provides any disability caused by a “blood-borne pathogen, lung or respiratory disease or condition, heart or vascular disease or condition, hypertension, tuberculosis or cancer” is presumed to be causally connected to a person’s work as a firefighter, emergency medical technician or paramedic if the claimant worked as a firefighter, EMT or paramedic for at least five years.

In the Johnston decision issued about a week ago, Claimant suffered a heart attack sweeping his parking spot at the firehouse. Faced with such facts, our Appellate Court said the Section 6(f) presumption can be rebutted if an employer can offer at least “some evidence sufficient to support a finding that something other than claimant’s occupation as a firefighter caused his condition.” The Court concluded evidence of Claimant Johnston's many risk factors for developing and suffering from coronary artery disease — including obesity, cigarette smoking and family history were enough to rebut the statutory presumption.

Please note IL Firefighter Unions obtained passage of Section 6(f) with the thought their members couldn’t lose on causation—any cardiac issues are “presumed” to be work related. In my opinion, causation still has to be properly determined by our hearing officers who carefully consider the facts and expert opinion.

This past week, this same IL WC Appellate Court, WC Division issued its ruling in Simpson, which involved a claim by a fire battalion chief from Peoria who suffered a mild heart attack while at home, doing literally nothing for the Department. I assure you the attorneys who brought this claim thought the causation standard was a complete judicial “lock” and they couldn’t lose—think again! A finding of causation still needs facts confirming a relation to work actions.

The Court said Section 6(f) could still apply to Claimant Simpson, even though his job was mainly administrative, since he served as a frontline firefighter for 22 years and continued to respond to live fires as a battalion chief in order to coordinate firefighting efforts. However, the Court said the City of Peoria successfully rebutted the statutory presumption under the standard laid out in the Johnston decision with the testimony of its medical expert. The same expert who opined in Johnston testified Claimant Simpson had three major risk factors for heart disease: high cholesterol, hypertension and obesity. These risk factors caused him to develop the heart disease that resulted in his at-home heart attack, the expert said.

The Arbitrator assigned found causation and awarded 25% BAW or about $83,000. The IWCC reversed and denied the claim. The IL Appellate Court said the Illinois Workers’ Compensation Commission was entitled to weigh the credibility of the witness testimony and the Commission’s decision to accept the opinion of the city’s expert was within the  manifest weight of the evidence. I salute the panel for an excellent and well-reasoned ruling.

Appellate Justice Holdridge, the lone dissent in both the Johnston and the Simpson decisions is from Peoria. He thought Section 6(f) requires an IL employer affirmatively show fighting fires was not a causative factor in the worker’s development of heart problems. I promise you, Justice Holdridge takes the very liberal view that any firefighter with a heart attack or other cardiac issue at anytime, anywhere suffers it due to work, whether they are at work or at the mall or a little league ball game.

According to the International Association of Fire Fighters, 37 states provide a presumption of compensability to firefighters with cardiac conditions. There are also 32 states that provide a similar presumption to firefighters with pulmonary ailments, and at least 33 with a cancer presumption.

According to me, the “firefighter presumption” for cardiac, pulmonary and cancer is based on an urban legend—the folks from the firefighters unions argue their members are constantly swathed in smoke. I assure our readers very few firefighters across our country fight live fires any more—if you look at statistics and not legislative PR, most of their work is actually medical calls for heart attacks and strokes. You don’t get a heart attack from carrying out a patient on a gurney.

But I am also sure you can’t legislate causation—the cause and effect between work and a medical condition have to be clear to the hearing officers who remain the gatekeepers. In these claims, I feel the IWCC got it right and, other than Justice Holdridge as an outlier, the Appellate Court agreed. I am sure the attorneys who represent firefighters are going to limit themselves to claims where causation is clearer and supported by the facts.

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Synopsis: Oops, IL Circuit Court Not the Commission is the Proper Venue to Enforce WC Contracts. Analysis by John Karis, J.D.

Editor’s comment: The First District Appellate Court recently held the IWCC did not have jurisdiction to enforce a WC settlement contract but instead the proper venue was the Circuit Court. Additionally, they found penalties should not have been awarded since counsel abandoned the issue at hearing.

In the case of Millennium Knickerbocker v. IWCC, Claimant Guzman was moving a box weighing about 50 pounds from a pile of boxes while working for Millennium Knickerbocker Hotel in October 2006. A box weighing about 20 pounds fell off the pile and struck his upper back. Guzman treated with chiropractor D’Souza of St. Anthony’s Spine and Joint Institute for strains and sprains in the cervical, thoracic and lumbar spine.

After an independent medical examiner concluded Guzman was not permanently disabled, Guzman agreed to settle the case for a lump sum payment of $7,800. The hotel did not accept liability for the claim and checked a box on the settlement contract indicating that it had paid all of Guzman’s medical bills. The employer also left blank a section of the form that asks for a list of all outstanding medical bills.

In April 2014, Guzman filed a “Motion to Enforce Contract and Penalties” with the IL Workers’ Compensation Commission. He said even though the settlement agreement stated all medical bills had been paid, he received bills totaling $16,618.88 from his chiropractor and the clinic where he had been treated.

During a hearing, Guzman’s attorney told former Commissioner Lamborn he was not requesting any penalties from the employer. Nevertheless, the Commission panel mysteriously awarded Guzman $8,309.44 in penalties and $3,323.78 in attorney fees, and ordered the employer to pay the outstanding medical bills.

The employer sought review in the Cook County Circuit Court, which affirmed the Commission’s order. The employer appealed. Respondent’s argument in their appeal was twofold, first, they contended the Commission lacked jurisdiction to consider Petitioner’s motion. Second, Respondent asserted even if jurisdiction lies with the Commission, the Commission improperly awarded Petitioner penalties and attorney fees.

In response, Guzman’s counsel cited a 1981 appellate court ruling in Flynn v. Industrial Commission as an argument the IWCC does have authority to enforce one of its awards. The Appellate Court found prior case law had been clear the Workers’ Compensation Commission has no jurisdiction to judicially enforce its own awards. The Court held the only method to enforce a final award of the Commission is in the Circuit Court pursuant to section 19(g) of the Act. The IL Appellate Court distinguished Flynn noting Petitioner asked the Commission to award penalties after the employer refused to pay an award. After the penalties were awarded, Flynn went to the Circuit Court to enforce the order.

The Appellate Court did note the Commission is authorized to assess penalties and attorney fees under the Act against a party who fails to comply with the terms of a final settlement contract approved by the Commission. Nonetheless, even though the Commission did have authority to issue penalties here in this case, they found Guzman’s attorney had specifically confirmed on the record, penalties were not at issue. By saying so, Guzman’s attorney abandoned any claim to penalties, the Appellate Court said. Therefore the Court vacated the penalties and fees awarded by the Commission.

In short, section 19(g) of the Act, is clear that the proper venue to seek judicial enforcement of an approved settlement contract is the appropriate Circuit Court. The Commission should dismiss any action to enforce a settlement contract as they lack jurisdiction based on this decision. We also agree with the Appellate Court’s decision on penalties. It is unclear why the Commission felt it was appropriate to award penalties when this wasn’t an issue nor was there a petition filed. We hope the Commission will follow this decision moving forward, if penalties are not appropriately filed and presented in the record.

This article was researched and written by John Karis, J.D. You can reach John 24/7/365 for questions about general liability, employment law and workers’ compensation at jkaris@keefe-law.com.

Synopsis: Are We The Only Ones Who Think It Odd that Claims Adjusters Are Doing IME Background Letters in WC?

Editor’s comment: We had a somewhat lengthy discuss at RIMS Philly about an interesting topic. We noticed more and more adjusters are being asked to draft/send IME background letters to doctors and other experts in the workers’ comp arena. We are sure this is being done to “save money” in handling claims. For the most part, we don’t agree at all with the idea or concept.

Please note in all other general liability, product liability and employment law claims, attorneys do the expert background letters. It would be unseemly for an adjuster to take on that role, due to the exposure present.

What is wrong with a claims adjuster writing the IME background letter? Well, there are a number of obvious issues. First, most claims adjusters are already swamped with work. To make money in what is usually a flat annual fee cost environment, WC insurance carriers/TPA’s give their best adjusters the most claims, both in number and complexity. It is simply the Peter Principle in operation. The most work flows to the most competent workers.

So along with keeping up with claims diaries, account questions/concerns, quarterly claims reviews, nagging calls from whining lawyers (some from the Claimant side) and lots of other details, adjusters are now being asked to heap the IME background letter into the mix. They struggle to keep up with day-to-day duties and then have to grapple with selecting an IME expert, reviewing factual investigations, summarizing medical records and asking poignant questions of the IME expert that may actually decide whether a complex claim can be questioned or fought.

The worst thing we have seen are “dumb” or one-computer-form fits all IME background letters. In my view, any WC insurance carrier/TPA that routinely uses IME form background letters should send a warning notice to their accounts confirming the vast majority of their intricate and expensive claims are going to be lost and benefits may always be due.

For one simple example, assume you have a claim where Claimant is asserting their shoulder became sore at normal work as a cost accountant. This is a sedentary/light job that doesn’t involve much use of the arms/shoulders at all. When we are faced with claims such as this, we recommend routine denial. I characterize such claims as “repetitive working” claims because they don’t involve a true accident, injury or safety failure of any kind on the part of the employer. We win lots of “repetitive working” claims.

To complete our defense case-in-chief we will recommend to a busy adjuster that we get an IME to assist in disputing the claim. We carefully seek out a noted shoulder surgeon for the task. The adjuster might insist they have to write the background letter to the IME expert. In making that decision, they use their insurance carrier/TPA form IME background letter.

The problems are just starting.

·         We note the IME form letter indicates Claimant suffered an “accidental injury” on the date of loss.

·         The form letter also indicates Claimant reported the injury and got treatment for the injury at ABC OccMedical Center.

·         Thereafter, the letter indicates the treating doctor is said to have recommended surgery for the accidental injury and surgery was successful.

·         The IME doctor is asked to provide their opinion whether the “accident” or “injury” is related to work.

Please note doctors, particularly when doing an IME report/opinion are something like computers. With apologies to the top doctors I know that perform IME’s, they will follow the lead of the adjuster or attorney writing the IME letter. By that I mean, if you call the event or onset of pain an “accident” or “injury,” the IME doctor won’t contradict you—they will usually also call the event in question or the onset of pain an “accident” also.

Once that happens, the claim is cooked—you have effectively lost a claim you might otherwise have won because if your IME expert says Claimant suffered an accident and they have problems arising from the accident, you own that claim with surgery.

I am happy to discuss this issue—in my humble view, claims handlers should leave this issue to the attorneys. Again, it is penny-wise and pound-foolish to let an adjuster do the IME background letter in a workers’ comp claim and have them cook the claim to the benefit of Claimant.

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 is in town—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

John Bullock, Shawn Biery and their troops won the 19th Annual Hangover Open yet again—we salute their straight shooting. Beau Spreck of EagleOne CMS has the low overall individual score and looooong drive by about a mile—show off!!!  

We are at RIMS Philly right now and going to meetings and more meetings. If you are there, let’s meet for a sarsaparilla—send a reply!!!