May 1, 2017; The Odd Intersection of ADA and WC; WCRI Stat-Rate Confirms IL WC and Other States WC Costs Are Dropping; Happy Anniversary!! and more

Synopsis: How ADA and Workers’ Comp Interact and Sometimes Oddly Intertwine.

Editor’s comment: At the suggestion of one of our readers, I want to provide some thoughts on this federal ADA or Americans with Disabilities Act and typically state-run work comp concepts. Sometimes they work in unison and harmony, sometimes the results are odd.

The purpose of Title I of the Americans with Disabilities Act (ADA) was to prevent U.S. employers from discriminating against current or prospective employees based on disability. The Americans with Disabilities Act (ADA) was signed into law on July 26, 1990, by President George H.W. Bush and has been in place with a couple of ruffles for about 27 years.

On the other hand, state workers’ compensation laws were intended to provide a mechanism for the prompt and fair resolution or litigation of employee claims against their employers for occupational injuries and diseases.

The ADA and Workers’ Compensation laws generally coincide to provide somewhat different protections and benefits. However, when an employee seeks relief under both sets of laws, various complications can arise. To address these issues, the United States Equal Employment Opportunity Commission (EEOC) regularly issues their so-called “Enforcement Guidance” on the ADA and how they feel it may impact workers’ compensation laws.

Work-Related Injuries/Disease May Not Represent an ADA “Disability”

An “injured” employee eligible for Workers’ Compensation benefits is not necessarily “disabled” for the purposes of ADA protection. Under the ADA a “disability” may be one of three things:

• A physical or mental impairment that substantially limits a major life activity;
• A record of such an impairment; or
• Being regarded as having such an impairment.

In other words, a worker who suffers a work-related injury or impairment might be entitled to receive Workers’ Compensation benefits but the injury or illness may not rise to the level of “substantially limiting a major life activity,” and therefore may not qualify for ADA protection.

A Work Injury or Disease May Become “Regarded as” a Disability

Suppose an employee suffers a spinal injury on the job. If the injury is temporary and does not substantially limit a major life activity, it would not also be an ADA disability. However, if the employer refuses to let the injured employee return to his position at work, the employer may have effectively “regarded” the employee as “having such an impairment,” or disability, potentially bringing the injury within the ADA definition. In such a case, the employer’s refusal to allow the employee to return to his job may violate the ADA.

Thus, although an applicable workers’ compensation statute may not require the employer to require the injured employee to return to work, the ADA might. Accordingly, the employer’s treatment of the injured employee could create liability against the employer based on both a workers’ compensation claim and the federal ADA.

Making Careful Pre-Hiring Inquiries Which Fulfill Both Workers’ Comp Laws and the ADA

Since the ADA was passed in 1990, the EEOC and the courts have attempted to clarify the interaction between work comp and the ADA. In 1996, the EEOC issued a set of “guidelines” to describe several questions and answers about the relationship between the two sets of laws.

When hiring new workers, an employer might wish to ask applicants whether they already have existing occupational injuries or workers’ comp claims in an effort to be mindful of future or potential workers’ comp claims. However, such questions might conflict with the ADA’s prohibition on discriminating against prospective employees due to a disability. The EEOC guidelines state an employer may make some Workers’ Compensation-type inquiries of applicants that will also satisfy the ADA, provided some requirements are met.

Post-Offer Workers’ Compensation related inquiries must be:

• Asked after a conditional offer of employment is made but can be asked before actual employment has begun; and
• Asked of all entering workers of the same job category.

If these requirements are met, the employer may inquire about prior workers’ comp claims or work-related injuries or may require medical exams to obtain information about the existence or nature of the prior work injury.

Unions Typically Hate ADA and May Try to Refuse/Block Reasonable Accommodation for Their Members

In Illinois workers’ comp, we have seen union representatives write letters “To Whom It May Concern” outlining their unusual position that all of their union members have to fully recover from any injury or illness to be returned to work at a union position. Unions stewards and leadership will literally work to block anyone from returning a union worker where they have any permanent restrictions. We typically see this done in an effort to guarantee expensive wage loss differential claims where a worker might be able to return to a union job in a permanent light duty capacity, as ADA contemplates.

The odd or unusual part of a union taking such a position is the idea of blocking a worker from returning to union labors due to a restriction is ADA is designed to force employers to do what the unions are trying to block! The reason I characterize this situation as unusual is the employee could care less about what ADA wants—the federal statute is disregarded and enforcement is tentatively blocked to allow the employee to cash in on six- and seven-figure settlements.

Refusal to Bring Government Workers Back to Available Light Work is Almost Criminal From The Perspective of Taxpayers

One shocking aspect of ADA occurs in the government sector where police, firefighters, prison guards and other workers suffer serious or life-changing injuries or illnesses that might make it difficult for the admittedly injured worker to return to their former position. In such settings, we don’t typically see ADA being used or followed to have the State of Illinois, county, municipality or other government bring the police officer, firefighter or other worker back to a sedentary or light position when such positions regularly open up.  

Instead, the worker is provided a going away party and perhaps a parade when they are awarded substantial workers’ comp benefits for “loss of trade” along with lifetime line of duty disability pensions. On top of this, they are either given personal lifetime health care coverage or in some cases, lifetime family health care coverage. All of these benefits come at a staggeringly high cost to the taxpayers that may run well into the millions for many workers.

If you think about it, why do we pension off young men and women in this situation when they could return to numerous other sedentary or light positions using the training and background we have already provided them at high expense? Couldn’t a disabled police officer, firefighter or prison guard be transitioned into administrative work? Doesn’t ADA contemplate our governments should and must do so?

Conflict of Workers’ Compensations Laws and the ADA

Most workers’ comp laws are generally “no fault” laws and contain provisions which prevent employees from bringing lawsuits against their employer or third parties for occupational injuries. As such, workers’ comp claims are typically the only recourse available to employees for their occupational injuries.

Once an “injury” is also considered a “disability,” the federal ADA applies in addition to the workers’ comp statute. It is possible you might need a defense team member from KCB&A to protect you and handle both the state administrative proceeding and a federal EEOC charge or direct state claim for retaliatory discharge. Such claims are not consider “no fault”—the worker has to show you had animus for them in some way in violation of the federal ADA. The disabled employee could enjoy the ADA’s additional protection to be free from job discrimination based on the disability arising from a work accident or exposure.

The defense team at KCB&A handles/defends state WC claims, EEOC charges and all sorts of related litigation in state and federal courts. If you need help or direction in handing such claims, please send a reply.

We thank our reader who recommended this article. We appreciate your thoughts and comments. Please post them on our award-winning blog.

Synopsis: Illinois WC Claim Costs Are Dropping--New WCRI Studies Examine Trends in Claim Costs and Impact of Reforms in 18 State Workers' Compensation Systems

Editor’s comment: The WC claim costs and other metrics of 18 state workers' compensation systems are analyzed in depth in a new series of studies, CompScope™ Benchmarks, 17th Edition, released by the Workers Compensation Research Institute (WCRI).

“The research can help policymakers and other stakeholders identify current cost drivers and emerging trends in a wide variety of workers' compensation system components,” said Ramona Tanabe, WCRI's executive vice president and counsel.

The studies examine trends in workers' compensation medical and indemnity payments in a number of states with significant changes, either through new laws or through court rulings. They also examine how income benefits, medical payments, duration of disability, litigiousness, and benefit delivery expenses changed over time, and they compare how these measures differ from state to state.

The following are sample findings for some of the study states:

• California: Total costs per claim remained stable between 2010 (claims with experience through March 2013) and 2013 (claims with experience through March 2016), likely reflecting the impact of Senate Bill 863.

• Florida: Total costs per claim grew moderately from 2010 to 2015, but two 2016 Florida Supreme Court decisions are expected to increase workers' compensation system costs.

• Illinois: Total costs per claim decreased 6.4 percent since 2010, reflecting the impact of a 30 percent reduction in fee schedule rates for medical services following the 2011 Amendments to the IL WC Act.

• Indiana: Total costs per claim decreased 4 percent from 2014 to 2015, the result of a nearly 10 percent decrease in medical payments, partly offset by a nearly 5 percent increase in indemnity benefits per claim. Those changes are likely related to provisions of House Enrolled Act 1320, which enacted a hospital fee schedule and increased income benefits paid to injured workers.

• North Carolina: Total costs per claim remained steady since 2009, a contrast from earlier years, following several fee schedule changes and House Bill 709 in 2011, which focused on income benefits.

CompScope™ Benchmarks, 17th Edition illustrates the performance of 18 state workers' compensation systems over time and how they compare. In addition to the states mentioned above, WCRI is also publishing studies for Georgia, Kentucky, Louisiana, Massachusetts, Michigan, Minnesota, New Jersey, Pennsylvania, Texas, Virginia, and Wisconsin. The state studies explore the time from injury to first indemnity payment, the average total cost per claim, the average payment per claim for medical care, and the average payment per claim for indemnity benefits.

For more information on these studies, visit https://www.wcrinet.org/reports/compscope-benchmarks-17th-edition.

The Cambridge-based WCRI is recognized as a leader in providing high-quality, objective information about public policy issues involving workers' compensation systems.

Synopsis: Happy Anniversary!

Editor’s comment: I was sworn in as an IL lawyer on May 1, 1980. 37 years later, I am still fighting the good fight to insure reasonable benefits are provided to injured workers with real injuries while employers pay fair amounts to cover them.

I have been writing this KCB&A Update since the summer of 1992 when it was a three-fold pamphlet that we addressed, stapled and snail-mailed to clients and potential clients. Yes, it has been 25 years! I am fairly sure something like 50,000+ readers have reviewed the KCB&A Update over the decades. I appreciate your thoughts, comments and suggestions.

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.

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

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!!!

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.

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

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!