6-23-14; No-Fault Attendance Policies Will Put You In The "Danger Zone", analysis by Bradley Smith, JD; HIPAA Fines To Soar, analysis by Ellen Keefe-Garner, JD; June is PTSD Awareness Month and more

Synopsis: No-Fault Attendance Policies May Put Your Company in the “Danger Zone.” Analysis by Bradley J. Smith, JD.

Editor’s Comments: Taking aim at No-Fault Attendance Policies, the EEOC takes action against auto parts retailer AutoZone for Its alleged failure to accommodate in their policy pursuant to the ADA. To fix the problem, we feel you need to consider implementing a “some-fault” policy because a blind or “no-fault” policy sounds good and easy to implement but is sure to get you into unwanted litigation.

Generally, when it comes to employer attendance policies, application of the policies should be applied the same across a broad range of employees. This allows the employer’s attendance policy to be applied without the impression of discrimination. In other words, you are applying the attendance policy fairly to all employees regardless of religion, color, race, gender, or any other protected category under applicable Federal and State law. Nonetheless, the opposite may be true when considering the Americans with Disability Act’s (“ADA”) failure to accommodate provision. Consequently, in EEOC v. AutoZone, Inc., the Equal Employment Opportunity Commission (“EEOC”) is taking aim at AutoZone Inc. regarding its no-fault attendance policy for allegedly failing to accommodate certain disability-related absences and further for retaliation for engaging in protected activities. EEOC v. AutoZone, Inc., No. 1:14-cv-03385 (filed May 9, 2014). Initially, the EEOC unsuccessfully attempted to reach a pre-litigation settlement with AutoZone through its conciliation process. Subsequently, the EEOC brought the suit under the ADA, which prohibits disability discrimination in employment and retaliation for reporting such discrimination. The EEOC claims for a period of approximately two (2) years, AutoZone assessed its employees and distributed points for absences. The EEOC further alleges AutoZone created no general exceptions for disability-related absences. Thus, any employee who violated AutoZone’s twelve (12) point attendance policy regardless of the reason for the absence was terminated. The EEOC alleges qualified employees with disabilities with minimal disability-related absences were fired. In further opposition to the no-fault policy, the EEOC argues reasonable accommodations should have been made for these employees. In essence this claim is a disparate impact claim as it relates to the no-fault policy, along with a disparate treatment claim as it relates to the individual instances of failure to accommodate and retaliation.

As an example, the EEOC asserts an Ottawa, IL employee with Type 2 diabetes was fired because he/she had to leave work early occasionally because of insulin reactions. The Complaint also alleges an employee was discharged in retaliation for objecting to the attendance policy and filing a charge with the EEOC.

Can Your Company Provide Light Work But Only for Work-Related Injuries?

This action by the EEOC also brings up the continuing question in the workers’ comp arena whether U.S. employers can offer temporary light work for work-related injuries but not offer similar accommodations for non-work-related problems and issues. If your company only offers medically modified work for work-related injuries, you may want to contact the author to discuss that delicate issues.

A reasonable accommodation under the ADA is one that would enable an employee with a disability to enjoy an equal opportunity for benefits and privileges of employment as are enjoyed by employees without disabilities. However, employers do not have to provide an accommodation if doing so would cause undue hardship to the employer. Undue hardship means the accommodation would be too difficult or too expensive to provide, in light of the employer’s size, financial resources, and the needs of the business. Generally, whether the accommodation creates an undue hardship relates to the job duties and descriptions of the position. However, employers cannot deny an accommodation because it will incur some costs.

Consider an Absence Committee

One way to avoid the uncertainty and litigation in this situation is to have your employees get points for absences but, in lieu of termination, have their chart moved to a management committee for review and final decision. In this fashion, you aren’t providing a “no-fault” approach and could make careful accommodation to avoid rancor. The committee can keep records of their decisions and all of this would be the sort of evidence needed to defend any EEOC or state discrimination charge.

Burden of Proof is on the Government But The Costs are on U.S. Employers

The author notes the EEOC may have a difficult time in proving AutoZone failed to reasonably accommodate the alleged disabled employees, but may likely reach a jury trial on the issues. The EEOC will initially need to demonstrate the individuals allegedly discriminated against suffered from a disability under the ADA. Although the EEOC would likely not bring the case if there was no evidence that the individuals suffered from disabilities, this element will need to be proven. Second, the EEOC will need to establish AutoZone was actually aware of the employees’ disabilities, as required to sustain a failure to accommodate claim under the ADA. Although this element is a prime area for summary judgment, in the event there is no dispute AutoZone was unaware of the disabilities, it is highly likely this area will be factually disputed by the EEOC and the individuals. In other words, at a minimum, if the EEOC can establish there is a factual dispute as to whether AutoZone had actual knowledge the disabilities, then the case will proceed to a trial. Nonetheless, to finally prevail on the ADA failure to accommodate claim, the EEOC will need to prove the employer failed to reasonably accommodate the employee’s disability. Of course, if the EEOC fails to demonstrate AutoZone’s actual awareness of the alleged disabilities, then consideration of whether AutoZone failed to reasonably accommodate the individuals will be unnecessary. Despite the EEOC’s difficulties, the case will likely proceed to trial without any early disposition.

As for the ADA retaliation claims, the EEOC will need to prove AutoZone retaliated against certain individuals for asserting their ADA rights and/or engaging in protected activities. Thus, the EEOC must evidence that AutoZone discharged its employees for filing their claims with the EEOC, an action all employees should have the right to engage in without fearing termination.

Notably, this is not the first time that the EEOC set its sights on AutoZone. In 2009, a consent decree resolved an EEOC claim that AutoZone allegedly failed to promote a visually impaired employee and further denied his/her use of a service animal. (EEOC v. AutoZone, Inc., No. CV-06-1767 (D. Ariz)). That decree awarded the employee $140,000.00 and required the company to conduct ADA training in all of its Arizona stores. In yet another case in 2001, a central Illinois jury found that AutoZone refused to accommodate a sales manager’s disability by requiring the employee to mop of floors, which led to additional injuries. (EEOC v. AutoZone, Inc., No. 07-cv-1154 (C.D.Ill.)). The case resulted in a $424,000.00 judgment against AutoZone. Moreover, in 2012, the EEOC claimed that AutoZone fired an employee rather than accommodating her lifting restriction. (EEOC v. AutoZone, Inc., No. 12-cv-303 (E.D. Wis.)). This case is currently proceeding to trial.

Summary

Essentially, the EEOC is attempting to force AutoZone to alter its nationwide no-fault attendance policy—and in doing so, to set an example—to account for individuals with disabilities needing “reasonable accommodations” related to their attendance at work. Although this is not a novel concept, employers and their insurers need to be aware no-fault attendance policies must leave room to accommodate for known disabilities, as long as those accommodations will not create an undue hardship on the employer. In other words, having clearly mandated policies and detailed written job descriptions, and further application of the same, can alleviate the stress of future litigation and expensive attorneys’ fees and costs. Thus, if employers provide a strong legal foundation for their policies and procedures, employers can avoid becoming the EEOC’s target.

It is not our intention to comment on the merits of the claim reported above—our goal is to inform our readers of these important developments. This article was researched and written by Bradley J. Smith, who is our employment law defense team leader. Fully ready to service your legal defense needs, Mr. Smith also manages the firm’s general liability department. Feel free to contact Bradley about this article at bsmith@keefe-law.com.

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Synopsis: News from Washington D.C., HIPAA Fines are Skyrocketing. Analysis by Ellen Keefe-Garner, RN, BSN, JD.

Editor’s comment: It has long been known failure to comply with HIPAA can result in civil and criminal penalties (42 USC § 1320d-5). Our recommendation to all our readers in the WC industry is to get an HIPAA-GINA compliant release signed by the claimant whenever/wherever possible. If the release is later withdrawn, you can then rely on the WC “exception” to HIPAA-GINA but you are much better protected to have a signed release in your files. If you need our draft HIPAA-GINA compliant release for your use, send a reply and we will email it to you, no charge. Either way, when you come to the end of handling a workers’ comp file, it has to be appropriately and securely stored and then shredded.

Civil Penalties

 The “American Recovery and Reinvestment Act of 2009”(ARRA) that was signed into law on February 17, 2009, established a tiered civil penalty structure for HIPAA violations (see below).  The Secretary of the Department of Health and Human Services (HHS) still has discretion in determining the amount of the penalty based on the nature and extent of the violation and the nature and extent of the harm resulting from the violation.  The Secretary is still prohibited from imposing civil penalties (except in cases of willful neglect) if the violation is corrected within 30 days (this time period may be extended).

HIPAA Violation

Minimum Penalty

Maximum Penalty

Individual did not know (and by exercising reasonable diligence would not have known) that he/she violated HIPAA

$100 per violation, with an annual maximum of $25,000 for repeat violations (Note: maximum that can be imposed by State Attorneys General regardless of the type of violation)

$50,000 per violation, with an annual maximum of $1.5 million

HIPAA violation due to reasonable cause and not due to willful neglect

$1,000 per violation, with an annual maximum of $100,000 for repeat violations

$50,000 per violation, with an annual maximum of $1.5 million

HIPAA violation due to willful neglect but violation is corrected within the required time period

$10,000 per violation, with an annual maximum of $250,000 for repeat violations

$50,000 per violation, with an annual maximum of $1.5 million

HIPAA violation is due to willful neglect and is not corrected

$50,000 per violation, with an annual maximum of $1.5 million

$50,000 per violation, with an annual maximum of $1.5 million

Criminal Penalties

In June 2005, the U.S. Department of Justice (DOJ) clarified who can be held criminally liable under HIPAA. Covered entities and specified individuals, as explained below, whom "knowingly" obtain or disclose individually identifiable health information in violation of the Administrative Simplification Regulations face a fine of up to $50,000, as well as imprisonment up to one year.

Covered Entity and Specified Individuals

The DOJ concluded that the criminal penalties for a violation of HIPAA are directly applicable to covered entities—including health plans, health care clearinghouses, health care providers who transmit claims in electronic form, and Medicare prescription drug card sponsors. Individuals such as directors, employees, or officers of the covered entity, where the covered entity is not an individual, may also be directly criminally liable under HIPAA in accordance with principles of "corporate criminal liability." Where an individual of a covered entity is not directly liable under HIPAA, they can still be charged with conspiracy or aiding and abetting.

Enforcing Agencies

The DHHS Office of Civil Rights (OCR) enforces the privacy standards, while the Centers for Medicare & Medicaid (CMS) enforces both the transaction and code set standards and the security standards (65 FR 18895). Enforcement of the civil monetary provisions has not yet been tasked to an agency.

No Private Cause of Action

While HIPAA protects the health information of individuals, it does not create a private cause of action for those aggrieved (65 FR 82566). State law, however, may provide other theories of liability.

The Office of Civil Rights (OCR), a division of the U.S. Department of Labor, investigates potential HIPAA violations. Since 2013, the Department of Health and Human Services (HHS) has recovered more than $10 million from health care entities and business associates for alleged violations of HIPAA. During a American Bar Association conference, in mid-2013, Jerome Meites, Chief Civil Rights Counsel for the HHS predicted future awards for HIPAA violations will be increasingly larger than in the past. Mr. Meites supported his prediction with the premise that HHS’s Office of Civil Rights is attempting to send a strong message that entities should comply with HIPAA or face steep penalties.

In addition to the potential onus of huge financial penalties for a HIPAA violation, Mr. Meites informed many more investigations of possible violations were already planned. He explained portable media devices used for storing health care information have caused a huge number of complaints about breaches of protected health care information. In addition, Mr. Meites indicated the failure of an entity to perform the required HIPAA investigation—called a comprehensive risk assessment—has been a factor in most of the data breach cases with which HHS has been confronted.

The warnings given by Mr. Meites about the proposed upswing in the number of investigations was intended to cause health care entities and their business associates (including attorneys, law firms and insurance claims managers) to take a closer look at their policies and procedures related to HIPAA protection. The warnings were intended to force entities to analyze how and when they will investigate a potential HIPAA violation. Needless to say, a strong message was sent to indicate that all entities should carefully scrutinize their policies for protecting data in relation to portable media devices, devices which are or could be used to store private health care information of patients.

This article was researched and written by Ellen Keefe-Garner, RN, BSN, JD who is our health law defense expert, along with handling numerous defense roles. Feel free to contact Ellen about this article at emkeefe@keefe-law.com.

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Synopsis: PTSD Continues to Vex Workers’ Comp Managers.

Editor’s comment: In order to bring greater awareness to the issue of posttraumatic stress disorder (PTSD), the United States Senate designated June 27th as National PTSD Awareness Day. In addition, June has been designated as PTSD Awareness Month by the National Center for PTSD.

 
PTSD is an anxiety disorder resulting from exposure to a single traumatic event or multiple traumatic events, such as assault, natural or man-made disaster, and work- or war-related combat stress. Symptoms of PTSD include persistent intrusive thoughts and distressing dreams about the traumatic event, triggered emotional responses to reminders of the trauma, efforts to avoid thinking or talking about the trauma, and persistent hypervigilance for cues that  indicate additional danger or trauma re-occurring. Indeed, according to estimates published by The National Center for Post-Traumatic Stress Disorder, some 7.8 percent of Americans will experience post-traumatic stress disorder (PTSD) at some point in their lives. Statistics indicate women are twice as likely to suffer from the condition than men.

Because the employer supposedly takes the “egg-shell” employee as it finds them, employers, claims administrators, and insurers view PTSD as an ongoing and difficult challenge to claims management and administration. Some industry experts are taking action to assist employers to identify if and confirm when a worker might be at risk of PTSD. Prevention and early identification of PTSD as an important part of their overall risk management.

One caveat we always tell our readers, clients and friends, always remember if someone is seriously injured or killed in the workplace, you have to handle the injury/death but also have to consider potential PTSD claims from everyone around the event. Be sure to offer counseling or medical care to your entire workforce, as needed. If you want assistance in finding such counselors, send a reply.

The “Double Whammy” of Dealing with PTSD Claims

·         PTSD usually lurks in the shadows, only to become present when the employee is confronted with a slow-developing or sudden physical or psychic trauma.

·         PTSD doesn’t have open scars or surgical sites--like other mental injury conditions, this condition has a significantly subjective component. The problem with all “soft-tissue” WC claims is when to give the worker the benefit of the doubt and when to shut the claim down.

Current Status Illinois and Indiana WC Mental Claims, Including PTSD

Mental conditions resulting from physical injuries are almost always compensable. The extent of care required is going to be an issue for litigation, like all other IL and IN claims.

Mental stimulus-mental reaction cases are compensable, but only if the stimulus is “unusual.” Our research indicates Colorado, Illinois, Iowa, Louisiana, Maine, Mississippi, Missouri, New Jersey, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, South Carolina and Vermont fall within this group. In most of the decisions “unusual” means unusual for a typical person holding the claimant’s job. Thus, a police officer or firefighter is expected to handle some levels of stress within his or her ordinary duties that would be deemed “unusual” for someone else in the general public. However, please compare the recent City of Montgomery ruling where a police officer faced with an orange-tipped toy pistol was provided line-of-duty disability benefits for a confrontation that didn’t result in injury. We feel the Illinois Workers’ Compensation Commission is more conservative in handling PTSD claims than our much more liberal reviewing courts.

Similarly, where the level of stress faced by the employee is objectively quite ordinary, although subjectively quite the opposite, the bulk of the jurisdictions, , either through court decision or actual statute, deny compensability for mental injury claims, including those related to PTSD. We have always felt attorneys on both sides don’t like to deal with psych claims and we hope that trend continues.

If you need experts or consultation on best practices in handling/defending PTSD claims, send a reply.

Synopsis: Gene Keefe, JD and Joseph D’Amato, JD to Speak about the future of workers’ compensation at American Insurance Ass’n in Washington DC tomorrow.

Editor’s comment: As you read today’s KCB&A Update, we are leaving for O’Hare to participate in a panel discussion on where the IL WC system has been and where we hope it is going under future administrations. If you have thoughts or comments you would like us to make to this important national association, please send them along.

6-16-2014; IL Appellate Court Upholds Coal-Miner Denial, analysis by Jim Egan, JD; Does IL WC Still Have a Notice Defense?; IL Supreme Court to Rule on Need for IL Treasurer to File WC Bond and more

Synopsis: In a Ruling We Consider Positive for Illinois Business and the Coal Mining Industry, the IL Appellate Court Upholds Denial of Coal Miner’s Claim under the Occupational Diseases Act. Analysis by James F. Egan, JD.

Editor’s Comment: In a positive decision which effects numerous employers in the State of Illinois, the Illinois Appellate Court, Workers’ Comp Division upheld the IWCC’s denial of benefits based upon the Statute of Limitations. In Carter v IWCC, the Appellate Court upheld the Commission’s denied of a claim for COPD or chronic obstructive pulmonary disease under Section 6(c) as time-barred as it was not filed within the three-year Statute of Limitations. In Carter, the claimant was a 22-year coal miner who had worked mainly underground during that period. The mine in question closed on September 24, 2004 which was also the claimant’s last day at the mine and last exposure to coal dust. While he told his foreman he was having breathing problems/congestion, he never mentioned that he had black lung or coal workers’ pneumoconiosis. Claimant filed an Application for Adjustment of Claim with the IWCC on September 3, 2008, nearly four-years after the last claimed exposure.

Competent medical evidence presented by Respondent, which included chest x-rays negative for coal workers’ pneumoconiosis  revealed the claimant was diagnosed with COPD. While the diagnosis did confirm Mr. Carter’s COPD was secondary to the inhalation of coal dust along with his smoking history, there was no diagnosis of pneumoconiosis. It is important to note claimant’s own treater also diagnosed COPD and not pneumoconiosis.

In March 2009, the Department of Labor issued an SSAE in connection with Mr. Carter’s concurrent claim for federal black lung benefits indicating he did not have coal workers’ pneumoconiosis and did not have a totally disabling respiratory or pulmonary impairment caused in part by pneumoconiosis. Clearly the DOL had no other logical alternative upon reflection of the medical evidence. Accordingly the DOL denied federal benefits.

The Arbitrator denied benefits under the IL Occupational Disease Act as untimely as the Act places a three-year Statute of Limitations on benefits with an exception for pneumoconiosis which extended the Statue to five-years. 

Pursuing benefits under the Occupational Disease Act, Petitioner presented a case in chief in which his expert opined no distinction could be made between COPD and coal workers’ pneumoconiosis and argued that as such one could not deny the claim as untimely. Claimant argued that based upon this argument the five-year Statute must include COPD caused by exposure to coal dust.

The Appellate Court, WC Division disagreed; holding the plain terms of the exception to the Statute of Limitations was for coal miners’ pneumoconiosis and not COPD. The Court held the exception clearly does not apply to all disabilities caused by exposure to coal dust and had the legislature intended to include all disabilities to do so, they could have done so.  The Court went on to distinguish claimant’s expert noting that his doctor had not provided any scientific reason to apply different limitation periods to coal miners alleging COPD, as opposed to pneumoconiosis and that claimant’s own doctor agreed with Respondent’s expert in his diagnosis.

The Court also rejected an equal protection argument that by setting the Statute of Limitations as it has been set, miners with COPD were being treated differently that “similarly situated” miners with coal workers’ pneumoconiosis. The Court held that the two diagnosis were clearly shown to be different and therefore claimant was not similarly situated as with workers’ with pneumoconiosis.

The author notes this to be a solid decision in which the IL WC Appellate Court upheld the plain reading of the Section 6(c), rather than re-interpreting the legislative intent. The decision also appears to continue a recent, positive trend in which the Commission, the Circuit Courts along with the Appellate Court have resisted an urge to reverse well-thought out opinions by Arbitrators which are supported by the manifest weight of the evidence.

This article was researched and written by James F. Egan, JD who is our coal mining defense expert, along with handling numerous defense roles. Feel free to contact Jim about this article at jegan@keefe-law.com.

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Synopsis: Does IL WC Still Have a Statutory Notice Defense?

Editor’s comment: Last week’s article about the IL Appellate Court, WC Division ruling in Tolbert v. Illinois Workers’ Compensation Commission, Plaintiff/Petitioner suffered an alleged and questionable occupational exposure to pigeon and sparrow droppings. The ruling appears to have led some observers to question whether our statutory notice requirement is still valid due to the strident pro-Petitioner tone of the Appellate Court’s ruling.

Unlike other states, our IL WC Act has relatively few statutory defenses. The “45-day” notice requirement in Illinois is one such statutory defense. Section 6(c) of the IL WC and OD Acts require the claimant to give notice of the accident or occupational exposure "to the employer as soon as practicable, but not later than 45 days after the accident." Section 6(c) further provides that "[n]o defect or inaccuracy of such notice shall be a bar to the maintenance of proceedings on arbitration or otherwise by the employee unless the employer proves that he is unduly prejudiced in such proceedings by such defect or inaccuracy."

In the Tolbert ruling, the unanimous majority ruling noted the Commission found Claimant's last day of work for the employer was August 31, 2010. Therefore, Claimant was required to give the employer notice of a work injury or exposure at least by October 15, 2010.

The Arbitrator and Commission found Claimant did not give requisite statutory notice until November 9, 2010, when the employer received a letter from the claimant's attorney well beyond the 45-day requirement of Section 6(c).

The majority opinion confirmed the legal standard of whether a given claimant gave the employer timely notice required by section 6(c) of the Act is a finding to be made by the Commission which will not be disturbed on appeal unless it is against the manifest weight of the evidence. The Court’s members noted the purpose of the notice requirement is "both to protect the employer against fraudulent claims by giving him an opportunity to investigate promptly and ascertain the facts of the alleged accident and to allow him to minimize his liability by affording the injured employee immediate medical treatment." The requirement the employee provide notice is jurisdictional, and the failure of the claimant to give notice will bar the workers’ comp claim. However, a claim is only barred if no notice whatsoever has been given. If some notice has been given, but the notice is defective or inaccurate, then the employer must show they have been unduly prejudiced.

From our perspective, the Appellate Court majority then looks to an undisputed phone call that took place on September 1, 2010. In that call, the employee advised the supervisor he thought he had cancer. There was a significant factual dispute present. To the extent the Commission ruled against Plaintiff/Petitioner, we would assume the reviewing court would give deference to the IWCC’s findings. In our respectful view, we don’t feel that occurred. Actually, it doesn’t appear the supervisor was rude or disrespectful to the worker—when/if a report of cancer was provided, it would appear the supervisor would not typically feel that might be related to the normal work at Respondent and would not have inquired further.

However, we also note there are numerous mistakes and problems caused by the handling of this matter by the defense attorney assigned. As we advised last week, someone had to stipulate this seasonal worker was an “employee” for a date of exposure long after the worker left the employ of Respondent. As veteran defense lawyers, we would never enter into such a stipulation.

Similarly, it does not appear defense counsel was aware in presenting a statutory notice defense consistent with Section 6(c) of our IL WC Act, the employer may have an affirmative duty to demonstrate prejudice. In our view, demonstrating prejudice due to late reporting of an accident or exposure is a simple but necessary task. The employer or its supervisor should have been called at the hearing to testify to their accident/exposure reporting protocols and what they could or might have done if an appropriate report had been provided. It is hard to criticize the reviewing courts when the employer and its defenses were not properly presented in the first instance.

In summary, we feel the ruling provides an excellent review of the statutory notice defense and emphasizes it remains a vibrant and valid statutory defense. While we don’t agree with the outcome, we are sure there are many court observers who do. We appreciate your thoughts and comments.

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Synopsis: IL Supreme Court to Decide Bond Requirement for State Treasurer in WC Setting; analysis by Michael L. Shanahan, JD.

Editor’s comment: The Illinois Supreme Court will soon take up a workers’ comp case to determine whether the State Treasurer as ex officio custodian of the Injured Workers’ Benefit Fund is required to post an appeal bond for review of Commission cases.

To provide some background on Illinois State Treasurer v. Illinois Workers’ Compensation Comm’n., the claimant worked as an at-home care-giver for an elderly blind man. The claimant testified that she normally wore slippers around the house; however, she would change into regular shoes before walking downstairs. Claimant testified she was putting on her shoes at the top of the stairs when she fell, hit her head against a wall, and lost consciousness.

Claimant subsequently filed a workers’ compensation claim against her employer, the elderly man. Since he did not have workers’ comp insurance, the Illinois State Treasurer was named a co-Respondent as custodian of the Injured Workers’ Benefits Fund. The IWBF was created in 2005 to provide benefits to workers whose employers do not have insurance and it’s funded by penalties and fines collected by the Commission from uninsured employers.

At trial, the arbitrator found the injury to be compensable and awarded benefits. The Commission unanimously affirmed the arbitrator’s decision. The Treasurer appealed. Normally, section 19(f)(1) of the Workers’ Compensation Act (820 ILCS 305/19(f)(1)) requires the party seeking review to obtain an appeal bond. The appeal bond provides security to ensure payment on appeal. The bond also vests the circuit court with jurisdiction to review an award made by the Commission. However, the Act expressly exempts “every county, city, town, township, incorporated village, school district, body politics or municipal corporation against whom the Commission shall have rendered an award for the payment of money.” 

On review, the IL WC Appellate Court reversed the Commission’s decision after concluding the Claimant had “failed to present evidence supporting a reasonable inference that her injuries arose out of a risk associated with her employment.” However, Claimant filed a motion for rehearing and asserted the court lacked jurisdiction on two separate grounds. First, Claimant argued the Court was barred from review as it involves a claim against the state. Next, the court did not obtain jurisdiction since the Treasurer failed to file an appeal bond. The Appellate Court did not find the first argument persuasive but the second posed a more difficult question.

With regard to the failure to obtain a bond, the Treasurer argued it was exempt from the bond requirement under section 19(f)(2). The Court disagreed based on the plain language of the Act. Essentially, the Court found that if the legislature intended to limit the requirement to employers, it would have simply said so. Plus, since the Act specifically lists certain entities who are exempt, it is unlikely the Treasurer was an intended exemption as it was not specifically listed. Nonetheless, the issue will ultimately be decided by the Illinois Supreme Court.

At the outset, an appeal bond must be considered in terms of the strategy of litigation if an adverse decision is rendered. For us, this is a reminder of the importance of communication with our clients. If there is an adverse decision, we have twenty days to meet all of the preliminary requirements prior to taking the work comp fight to state court for review. The State Treasurer may very well have won in the Appellate Court; however, now the focus has shifted to whether the Treasurer is exempted from the bond requirement.

Please direct all questions or comments to Michael L. Shanahan at mshanahan@keefelaw.com

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.

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

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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.

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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.