9-27-11; Appellate ruling overturning Pension Board finding on causation hard to figure. In our view, the reviewing courts are supposed to let pension boards decide the facts and not supplant...

The Appellate Court upheld the Circuit Court decision reversing a Pension Board’s denial of a police officer’s request for a line-of-duty pension in Rose v. The Board of Trustees of the Mount Prospect Police Pension Fund, No. 1-10-2157 (September 15, 2011). Officer Michael D. Rose was in an automobile accident on February 21, 2004 while on duty and driving his squad car. He was subsequently involved in an off-duty automobile accident on June 1, 2004. As a result of the February 2004 accident Rose contended he suffered permanent disabling injuries to his back and requested a line-of-duty pension. This request was denied by the Pension Board, but a non-duty disability pension was granted.

In denying the line-of-duty pension the board determined:

1)    The February 21, 2004 accident did not occur while Petitioner was performing an "act of duty"; and

2)    The February 21, 2004 accident was not a contributing cause of the petitioner's undisputed disability; rather the disability was caused by the injuries Petitioner sustained in the later June 1, 2004 off-duty accident.

The Circuit Court reversed the Pension Board’s decision and found Rose was entitled to a line-of-duty pension. On appeal the Appellate Court reviewed evidence regarding both automobile accidents and reports and deposition transcripts from a number of doctors who examined Rose.

Section 5-113 of the Pension Code defines the term "act of duty" as "[a]ny act of police duty inherently involving special risk, not ordinarily assumed by a citizen in the ordinary walks of life, imposed on a policeman." 40 ILCS 5/5-113 (West 2006). In Johnson v. Retirement Board of the Policemen's Annuity & Benefit Fund, 114 Ill. 2d 518 (1986), the Supreme Court for the first time interpreted the definition of an "act of duty," as defined by section 5-113 of the Pension Code, and expressly rejected the notion the term "special risk" encompasses only inherently dangerous activities. The Supreme Court in Johnson held the capacity in which the officer is acting when he is injured will determine whether an officer is entitled to a line-of-duty pension.

In the present case, the Board found Rose was not performing an act of duty because the investigation he was working on did not involve special risks not ordinarily assumed by a citizen in ordinary walks of life. The Appellate Court noted at the time of the first accident Rose was in full gear inside his marked squad car, and was performing his patrol duties, which required special skills not ordinarily encountered by everyday citizens, namely “having his attention and energies directed towards being prepared to deal with any eventuality”. Johnson, at 522. As such the Court determined the Board’s conclusion Rose was not performing an act of duty to be clearly erroneous.

Regarding the cause of Rose’s disability the Pension Board held Rose’s disability did not result from the on-duty February 2004 accident, but solely from the off-duty June 2004 accident because Rose had fully recovered from the on-duty accident before the off-duty accident. The Appellate Court noted it is well established that "a disability may result from multiple causes," and that in order to obtain a full line-of-duty pension, "[a] claimant need not prove that a duty-related accident is the sole cause, or even the primary cause, of his disability." Luchesi v. Retirement Board of the Firemen's Annuity & Benefit Fund, 333 Ill. App. 3d 543, 550 (2002). Rather, a claimant must only prove that the duty related accident "is a causative factor contributing to the claimant's disability." Luchesi at 550.

The Appellate Court stated none of eight doctors involved in this case when informed of the second accident dismissed the first accident as a contributing factor to Rose’s disability. Four doctors opined the first accident was the cause of Rose’s permanent disability while the second accident merely exacerbated Rose’s symptoms. The remaining four physicians refrained from determining which accident, if any, caused Rose’s disability. The Board relied on one doctor’s opinion that Rose had fully recovered prior to the second accident. This opinion was based solely on a review of medical records and was contradicted by notes of Rose’s family physician which indicated Rose continued to have pain complaints. The Appellate Court held the Board’s conclusion Rose fully recovered from the 2004 accident, such that the injuries from this accident played no part in the ultimate disability, to be contrary to the manifest weight of the evidence and the Circuit Court decision was affirmed.

This article was researched and written by Matthew Ignoffo who can be reached at mignoffo@keefe-law.com.

9-27-11; Is there anything in Illinois Workers Comp that states you cannot take the sworn deposition of the claimant?

The short answer is no. The reason they are not conducted is there is nothing in the IL WC Act or Rules that requires them. For example, if a claimant doesn’t attend a properly set IME, the Act allows you to cut off benefits.

And please understand, if we were to set a deposition and claimant and counsel attended and answered questions, it would not be “illegal.” The deposition could be used for whatever value it might have in later hearings.

The problem is that if we set a deposition of claimant and no one showed, we couldn’t take any action as the Act doesn’t say anything about it. In a common law proceeding, if a Plaintiff doesn’t show for a deposition, they can be barred from testifying and/or the claim can be dismissed by the court.

The IL WC Act has no similar provision or rule. Depositions in IL WC are set by agreement or via a weirdly named petition for what is called a “dedimus potestatem.” In law, dedimus potestatem (Latin for "we have given the power") is a writ whereby commission is given to one or more private persons for the expedition of some act normally performed by a judge. It is also called delegatio.

It was granted most commonly upon the suggestion that a party, who is to do something before a judge or in a court, was too weak to travel. The use of a dedimus potestatem was various, such as to take a personal answer to a bill in chancery, to examine witnesses, levy a fine, etc. In a dedimus filed in an IL WC claim, the Arbitrator basically orders the court reporter to take the deposition or recorded sworn statement of whoever is listed in the petition. We are confident there are very few claimant attorneys who would agree to have their client deposed.

If they wouldn’t agree and we filed for a dedimus, we are certain there are no Arbitrators who would order claimant to be deposed because there are no rules requiring it.

9-27-11; The lawyers, adjusters and WC claims managers in the various WC systems across the U.S. are all setting up literally thousands of Medicare Set-Aside Trusts, as part of the ongoing...

In our humble view, the answer is “no one knows.” You may note below, if a claimant dies, the trust money is to be ‘disbursed pursuant to state law.’ We have no clear idea what that might mean but assume the trust money may be an asset in claimant’s estate. We are aware some carriers are trying to have reverter clauses in the trusts to have the money revert back if unused for the reasons intended. That isn’t common and to our knowledge, the concept hasn’t been tested in the courts in Illinois, Wisconsin or Indiana where we practice. It also requires continuing audits of injured claimants for years and possibly decades.

It appears there is a process that may allow the money to be spent for other purposes, after five years and under very limited circumstances. We are fairly confident the CMS claims folks aren’t going to want thousands of “can we have the money” applications from all the claimants. Whatever happens, we assure all attorneys you don’t want to “mess with CMS” and should follow the law closely.

From the CMS web site:

v  Beneficiaries that Request Termination of a WCMSA Account (Ref: 7/11/05 Memo Q10)

The administrator of the CMS-approved WCMSA should not release set-aside funds for any purpose other than the purpose for which the WCMSA was established without review from CMS. However, if the treating physician concludes that the claimant's medical condition has substantially improved, then the claimant (or the claimant's representative) may submit a new WCMSA proposal covering future expected medical expenses. Such proposals must justify at least a 25% reduction in the outstanding WCMSA funds. In addition, such proposal may not be submitted until at least five years after a previous CMS approval letter and should be accompanied by all supporting documentation not previously submitted with the original WCMSA proposal. The CMS decision on the new proposal is final and not subject to administrative appeal. The above proposals shall be submitted to:

CMS
c/o Coordination of Benefits Contractor
P.O. Box 33849
Detroit, MI 48232-5849
Attention: WCMSA Proposal

If CMS determines that a 25% or greater reduction is justified, CMS will issue a new approval letter. After CMS issues a new approval letter, any funds in the current WCMSA in excess of the newly calculated amount may be released to the claimant. Effective August 25, 2008, the July 11, 2005 memorandum at Question and Answer 10, entitled "Beneficiaries that Request Termination of a WCMSA Account," is rescinded.

What do you do if the money is sitting there and claimant passes?

v  Death of a Claimant Prior to Exhaustion of the Medicare Set-Aside Money (Ref: 4/21/03 Memo Q21)

Once the Regional Office (RO) and the contractor responsible for monitoring the claimant's case verify that all of the claimant's claims have been paid, then any amount left over in the claimant's WCMSA may be disbursed pursuant to State law. This may involve holding the WCMSA open for some period after the date of death, as providers, physicians, and other suppliers are permitted to submit their initial bill to Medicare for a period ranging from 15-27 months after the date of service.

If you have questions or concerns, Shawn R. Biery, J.D. has the M.S.S.C. certification and is available by email at sbiery@keefe-law.com.