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!

4-10-2017; Hacking May Change Workers’ Comp Record/Bill Keeping But Not in a Good Way; Whistleblower Complaints have to Relate To Problems Complained Of by Shawn Biery, J.D. and more

Synopsis: Hacking May Change Workers’ Comp Record/Bill Keeping But Not in a Good Way.

Editors’ comment:  If your financial stuff has ever been hacked, consider a challenging new statistic, by 2024, everyone in the U.S. may have had health care and workers’ comp data compromised if online theft keeps accelerating at the current pace. As ouir health records are going digital in the past several years, they've become far more vulnerable to poaching—and far more interesting to online thieves, who may sell a complete medical record for more than $1,000 on the darknet. That is because the records contain not just your insurance info—which can be used for fraudulent billing and prescriptions—but also they include your Social Security, driver's license and credit card numbers. As a result, the health care and work comp industry is scrambling to play catch-up to secure patient and hospital data.

Always remember workers comp benefits are about 45% health care costs in the U.S. and other countries. Health care has lagged far behind banking, financial services and retail when it comes to implementing security protocols. Until Obamacare mandated electronic records, many medical providers still operated with ancient concepts like paper, faxes and handwritten charts. Once electronic systems were finally implemented, the industry struggled to attract and retajn top IT talent to protect us. The access issues are industry-specific. "Security in health care has some unique challenges because we have to share data in order to save lives while also protecting patient information," says Steven Smith, chief information officer at Evanston-based NorthShore University HealthSystems. "If you think of a bank, your financial information is locked up and not shared. But we need to share our data with all doctors, nurses and outside payers, as well as with the patients themselves."

IT security experts say it's tough to overstate the enormity and frequency of the threats, which have skyrocketed in the past decade as everything has become exponentially more networked.

So far in 2017, 79 security breaches, each affecting at least 500 patients, have been reported to the U.S. Health & Human Services Department. That's more than five incidents a week. Only one, involving Walgreens Boots Alliance and 4,500 records, took place in Illinois. Still, our State has experienced nearly 100 incidents since 2010, according to the HHS breach portal, known as the "Wall of Shame" to security professionals.

Major hospital systems here are beginning to pay the price as HHS levies fines on providers who have lost sensitive patient data. In January, Chicago's Presence Health agreed to pay $475,000 to HHS for failing to report in a timely manner a 2013 breach involving missing paper schedules containing patient information. Presence is "working diligently" on a corrective plan, including additional security training for staff, a spokesman says.

That figure pales in comparison to the $5.5 million shelled out by Advocate Health Care in August. The Downers Grove-based hospital network agreed to pay HHS the largest settlement ever by a single entity for potential violations of federal patient privacy law related to three separate 2013 breaches that compromised the data of at leaset 4 million people. Two of the incidents involved stolen employee laptops, while a third involved a consultant's potentially unauthorized access to patient records. Since then, Advocate has "enhanced (its) data encryption measures," says a spokeswoman, adding that there's been no indication the information was misused.

Nationwide, IT breaches cost the medical and workers comp industry more than $6 billion annually—a number that grows each year.

Hospitals and physicians' practices make enticing targets. For starters, the protections are lax. "Based on our testing, health care applications performed more poorly on just about every (security) measure than applications in any other industry," says Tim Jarrett, a senior director of product marketing at Veracode, a Boston software security firm. Then there's the industry's personnel problem. "The U.S. has a huge shortage of highly qualified cybersecurity people across all industries," says Rod Piechowski, a senior director at the Healthcare Information & Management Systems Society, or HIMSS, a Chicago-based nonprofit with more than 50,000 members. "Being late to the game, health care just can't compete."

Although they're in high demand, IT professionals in health care and workers’ comp historically have not had a major say in their employers' procurement process, unlike in other industries, according to Jarrett. Until recently, security wasn't prioritized the way it was in finance or banking, and, as a result, network administrators couldn't effectively lobby manufacturers to increase software security standards, so they often ended up overseeing systems that are tough to keep safe. Plus, it's not just computer and billing systems that are vulnerable. Medical devices from insulin pumps to pacemakers store information wirelessly. Several years ago, former Vice President Dick Cheney revealed that, while he was in office, his doctors had disabled his heart implant's wireless connection because of a fear of assassination attempts. More recently, Johnson & Johnson warned customers about a security problem with one of its insulin pumps.

Some medical devices aren't made to allow any remote management, which prevents IT people from detecting problems and installing updates efficiently. Once tech teams are saddled with subpar systems, they're really stuck—because medical equipment tends to have a much longer life cycle than consumer electronics. Jarrett says he knows of one Midwestern drug company where computers that prepare prescription for patients use Windows XP, a 16-year-old operating system that stopped being supported in 2014. "That's horrifying," he says.

'SHADOW IT' SYSTEMS

Compounding the issue, some physicians, frustrated by clunky systems and compelled to find quick workarounds in the name of patient care, have created ad hoc "shadow IT" systems that rely on insecure methods like texts or unencrypted personal email, according to Coady.

As health care systems struggle to secure their data, increasingly sophisticated thieves have more reasons to steal it. Because the records include so much information, thieves can falsify insurance claims and collect checks, get tens or hundreds of thousands of dollars of free care on someone else's insurance (which might affect the real policyholder's coverage limits), and falsify driver's licenses to illegally get prescriptions. "The fraud that can be executed against payers is incredible," Coady says. Medical hackers have also been known to attempt extortion. In late 2014, Clay County Hospital, an 18-bed facility in downstate Flora, received an anonymous message saying that more than 12,000 patient files would be released unless it paid thousands of dollars. Administrators instead contacted the FBI—but other hospitals, including Hollywood Presbyterian Medical Center in Los Angeles, have paid thousands of dollars in similar situations.

Most Chicago hospital systems are reluctant to discuss their security efforts beyond confirming that they've invested lots of time and money. But they acknowledge the pressing issue. "The Cook County Health & Hospitals System has invested considerable financial and human resources into ensuring the highest level of security possible," Donna Hart, the system's chief information officer, says in a statement. "The security of our systems is one of our highest priorities."

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

Synopsis: Whistleblower Claims Have to Relate to Issues Complained Of.  Analysis by Shawn Biery, J.D., M.S.CC.

Editor’s comment:  Interesting decision for anyone who has been subjected to defending claims made under the Whistleblower Act. In Corah v. The Bruss Co., No. 1-16-1030, decided before the Appellate Court of Illinois, First Judicial District, Third Division March 2017, the court found no whistleblower protection for employee Corah due to lack of any evidence that his refusal to complete accident reporting.

Joseph Corah was the supervisor of bone-in-steak production at The Bruss Co., an affiliate of Tyson Foods. In September 2010, an employee under his supervision named Yvette Albea began having issues with lightheadedness and sweating, which caused her glasses to fog up. At Corah's recommendation, Albea was taken off the production line however after Albea threatened a union grievance, she was placed back on the line and after her return, cut her finger on a band saw. Corah completed an accident report (internally identified as an AIR) in which he placed the root cause of the accident on the superintendents for negligently placing Albea back on the line. After a dispute with the two superintendents and the plant's human resources manager over what to put in the report, Corah was terminated for insubordination.

The court again held that the language of section 20 is unambiguous and thata‘plaintiffmustactuallyrefusetoparticipate’  inanactivitythatwouldviolatealawor regulation.” citing Lucasv.  CountyofCook,  2013ILApp(1st)  113052(quoting Sardigav. Northern Trust Co., 409 Ill. App. 3d 56, 62 (2011) which indicated Plaintiff bears the burden of establishing his claim under the Whistleblower Act.

The appellate court found that because the worker was not being asked to do anything illegal, his actions were not protected under whistleblower laws.

Key to the decision was evidence that Corah's managers said they were willing to include typewritten notes from Corah "voicing (his) concerns about Albea being permitted to remain qualified on the band saw" in the report. They said they terminated Corah after he refused to fill out the AIR completely. The court also accurately determined that the AIR was an internal document not submitted to any outside agency so Corah failed to demonstrate that modifying the AIR would have violated any state or federal law, rule or regulation.

The court specifically noted "Defendant did not ask Plaintiff to falsify the AIR but merely to include the technical cause of Albea's accident,"  and “In addition, defendant's safety manager established the AIR was an internal document that would not have been submitted to any government agency."

Other facts determined in the matter also confirmed Bruss Co. submits a separate workers' compensation form to the state and only circulates the AIR internally, managers testified. The workers' compensation administrator for Tyson, a self-insured company, indicated access to AIRs when processing claims but confirmed they are not submitted anywhere.

It is probably also relevant that Bruss/Tyson approved Albea's application for workers' compensation benefits as a result of the accident.

This case is a strong example of an employer’s ability to control their internal documentation process and procedures. It also supports our general longstanding advice to KCBA clients when we consistently recommend investigation matching the urgency of claims and detailing all issues, including facts which may impact other potential claims—in this case, the initial WC investigation noting the threat of union grievance provided evidence to defend the whistleblower claim.

It is also important to note that Bruss/Tyson did not violate any state or federal laws in this matter—and it is significantly easier to defend a well-managed and innocent client!  This article was researched and written by Shawn R. Biery, JD. You can contact Shawn at sbiery@keefe-law.com for questions regarding any of your employer defense claims.

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