Alan Hampton was a police officer for the Village of Bolingbrook. Hampton was on duty on December 20, 2016 when he responded to an accident with injuries in the center of an intersection. Hampton’s lights and sirens were on. There was a fire vehicle on the scene with activated lights. Hampton tried to position his vehicle to protect the scene by blocking traffic from entering the intersection, and while positioning his patrol car was struck on the driver’s side. As a result of the collision, Hampton suffered injuries to his left shoulder, and had to be extricated from the police car.

Hampton submitted an application for line-of-duty disability pension benefits on December 4, 2017. In addition to his treating physicians, he was examined by three physicians at the Board’s direction and expense.

HAMPTON’S TREATING PHYSICIANS

Dr. Charles Paik

Dr. Paik ordered an MRI of Hampton’s left shoulder, which revealed moderate glenohumeral osteoarthritis with an associated superior labral tear extending to the posterior inferior portion of the labrum. The MRI also revealed a paralabral cyst, a Bankart lesion and a Hill Sachs deformity. After reviewing the MRI, Dr. Paik referred Hampton to Dr. John Lee, an orthopedic surgeon.

Dr. John Lee

Dr. Lee diagnosed Hampton with left shoulder pain due to degenerative joint disease, a labral tear, and a possible Bankart lesion. Dr. Lee recommended 4 weeks of physical therapy.

Dr. Steven Chudik

Hampton was next seen by Dr. Chudik, another orthopedic surgeon. Dr. Chudik referred Hampton for physical therapy followed by work conditioning. At the completion of work conditioning, Dr. Chudik ordered an FCE. After the FCE, Dr. Chudik recommended a return to modified duty because Hampton’s shoulder injury posed an unacceptable risk if Hampton was involved in a physical altercation or a situation requiring physical force. Dr. Chudik placed Hampton at maximum, medical improvement as of September 15, 2017.

THE WORKERS’ COMPENSATION SECTION 12 MEDICAL EXAMINER

Dr. Vishal Mehta

Dr. Mehta examined Hampton as part of the underlying workers’ compensation claim. Dr. Mehta opined that Hampton had an underlying glenohumeral osteoarthritis that was aggravated by the work incident on December 20, 2016. Mehta recommended restrictions of no pushing, pulling, or lifting greater than 20 pounds with the left shoulder, no over-the-shoulder use, and indicated that Hampton was not to be placed in situations that could result in physical altercations.

THE BOARD DESIGNATED PHYSICIANS

Dr. Joshua Alpert

Dr. Alpert, an orthopedic surgeon, certified Hampton disabled from performing full and unrestricted police duties based on aggravation of the osteoarthritis in Hampton’s left shoulder, which had been asymptomatic prior to the accident.

Dr. Denis Williams

Dr. Williams, also an orthopedic surgeon, agreed that Hampton had pre-existing osteoarthritis that was aggravated by the accident, but found Hampton not disabled based on the FCE.

Dr. Sam Biafora

Dr. Biafora, an orthopedic surgeon, certified Hampton not disabled from performing his duties as a police officer, opining that Hampton sustained only a temporary exacerbation of pre-existing arthritis in the left shoulder. Dr. Biafora opined that Hampton’s left shoulder pain was due to the natural progression of the arthritis, and was not related to the accident.

After the hearing, the Board found that Hampton was not disabled and denied Hampton’s claims for both line-of-duty disability benefits and not-on-duty disability benefits.

The circuit court reversed the Board’s decision, finding there was insufficient evidence in the record to support the Board’s findings, and that the Board’s findings were against the manifest weight of the evidence.

The appellate court noted that a police officer is entitled to a line-of-duty pension if “as the result of sickness, accident or injury incurred in or resulting from the performance of an act of duty, is found to be physically or mentally disabled for service in the police department, so as to render necessary his or her suspension or retirement from the police service.” 40 ILCS 5/3-114.1(a). In defining disability, the court referred to article V of the Pension Code, which states that disability is “a condition of physical or mental incapacity to perform any assigned duty or duties in the police service.”

The appellate court affirmed the circuit court, and found that the Board’s conclusion that Hampton was not disabled from being a Bolingbrook police officer was against the manifest weight of the evidence, and pointed to the following facts in the record:

  • An MRI from January 2017 objectively showed a labral tear, paralabral cyst, Bankart lesion and Hill Sachs deformity.
  • Mehta, the IME doctor from the underlying workers’ compensation claim, found that the pre-existing shoulder condition was aggravated by the December 20, 2016 accident and that Hampton required work restrictions that could be permanent in nature.
  • Alpert, one of the Board designated physicians, concluded that Hampton was disabled from performing full and complete police duties.
  • Chudik, a treating doctor, recommended modified duty that restricted Hampton from situations that would require any type of physical altercation.

The appellate court found that the Board’s reliance on Dr. Williams was misplaced in that Williams’ conclusions were inconsistent with the facts available to him. The appellate court also found Dr. Biafora’s conclusion that Hampton had suffered merely a temporary exacerbation to be inconsistent with the facts in the record.

The Board’s decision did not address whether Hampton was injured in the performance of an act of duty. The appellate court found that the Board did make the necessary factual findings for the appellate court to make that finding as a matter of law. Relying on the Board’s findings of fact, the appellate court found that Hampton was injured while performing an act of duty.

TAKEAWAYS:

  • When appearing before the pension board, be sure to present a complete record of all treatment received for the injury, including the opinions of any doctors that rendered care and treatment in any underlying workers’ compensation claim. Make sure that the record includes the opinions of treating physicians in addition to the chart notes.
  • If a pension board finds that an officer is not disabled, the Board might not address the issues of line of duty vs. not-on-duty disability benefits in its decision. When appealing such a decision, be sure to present arguments to the court as relates to line of duty vs. not-on-duty disability benefits, as the court does have the power to take the Board’s factual findings and apply those facts to determine whether the officer was injured while performing an act of duty. Be sure to reference any non-disputed facts contained in the record to bolster your argument for a line of duty disability pension.

If you are a police officer and have been injured on the job, feel free to call me for a free consultation.

Governor JB Pritzker has activated 250 members of the Illinois National Guard for State Active Duty in response to the warnings issued this week by the Federal Bureau of Investigation (FBI) regarding threats to state capital cities in the days leading up to the inauguration of President-elect Joe Biden. At the request of the U.S. Department of Defense, the Governor also activated an additional 100 members of the Illinois National Guard in support of the 59th Presidential Inauguration in Washington D.C. These additional troops will join the approximately 200 members of the Guard that were previously activated by the Governor. What happens if  an officer, warrant officer or enlisted member of the Illinois National Guard is injured while he or she is on duty?

The Illinois Workers’ Compensation Act states that for purposes of the Act, members of the National Guard are considered employees of the State while on active duty in service of the State in Section 1(b). The Military Code of Illinois  addresses treatment and compensation for members of the Illinois National Guard who are injured while on duty and lawfully performing the same. Section 52 of the Code states:

Officers, warrant officers, or enlisted personnel of the Illinois National Guard who may be injured in any way, including without limitation through illness, while on duty and lawfully performing the same, are entitled to be treated by an officer of the medical or dental department detailed by the Adjutant General, or at the nearest appropriate medical treatment facility if such an officer is not detailed. Officers, warrant officers, or enlisted personnel of the Illinois National Guard who may be wounded or disabled in any way, while on duty and lawfully performing the same, so as to prevent their working at their profession, trade, or other occupation from which they gain their living, are entitled to be treated by an officer of the medical or dental department detailed by the Adjutant General, or at the nearest appropriate medical treatment facility if such an officer is not detailed, and, as long as the Illinois National Guard has not been called into federal service, are entitled to all privileges due them as State employees under the “Workers’ Compensation Act”, approved July 9, 1951, as now or hereafter amended, and the “Workers’ Occupational Diseases Act”, approved July 9, 1951, as now or hereafter amended. For purposes of this Section, injured, wounded, or disabled “while on duty and lawfully performing the same” means incurring an injury, wound, or disability while in a State military status pursuant to orders of the Commander-in-Chief, except when the injury, wound, or disability is caused by the officer’s, warrant officer’s, or enlisted personnel’s own misconduct. 20 ILCS 180-5/52. 

This means that as long as the Illinois Guardsman is injured while in a State military status, he or she is entitled to the protections of the Illinois Workers’ Compensation Act and the Illinois Occupational Diseases’ Act so long as the injury, wound or disability is not caused by the Guardsman’s own misconduct. It is important to note that if the Guard is federalized, an injured Illinois Guardsman is no longer considered a State Employee, and therefore would lose any protections afforded by the Workers’ Compensation Act and / or Workers’ Occupational Diseases Act.

If you are a member of the Illinois National Guard injured while on active duty in service of the State of Illinois, do not hesitate to contact me for a free consultation.

 

 

The purpose of the Public Safety Employee Benefits Act (PSEBA) is to ensure the health benefits of public safety employees who have suffered catastrophic injuries in the line of duty. Nowak v. City of Country Club Hills, 2011 IL 111838, ¶16. Section 10(a) of PSEBA provides in relevant part:

“An employer who employs a full-time ***firefighter, who ***suffers a catastrophic injury or is killed in the line of duty shall pay the entire premium of the employer’s health insurance plan for the injured employee, the injured employee’s spouse, and for each dependent child of the injured employee until the child reaches the age of majority***. 820 ILCS 320/10(a).

The Illinois Supreme Court has defined “catastrophic injury” to mean an injury resulting in the awarding of a line-of-duty disability pension. Nowak, 2011 IL 111838, ¶ 12.

Section 10(b) of PSEBA also requires that the injury occur “as the result of the ***firefighter’s response to what is reasonably believed to be an emergency.” 820 ILCS 320/10(b).

In the case of Heneghan v. City of Evanston, 2020 IL App (1st) 192163-U, the plaintiff Sean Heneghan was a firefighter with the City of Evanston. On June 10, 2016, he participated in a voluntary live fire exercise held at the Northeastern Illinois Public Safety Training Academy (NIPSTA) in Glenview, Illinois. This exercise was part of a firefighter training course, and his attendance was approved by the Division Chief.

During the exercise, the live fire generated smoke and combustible particles. The teams combatting the live fire relied on Heneghan to ventilate the structure, letting heat, combustible gas, and smoke being generated by the fire to escape. Ventilating the structure helps to extinguish the fire by lowering the structure’s internal temperature an increasing visibility for het firefighters fighting the live fire. Heneghan, 2020 IL App (1st) 192163-U, ¶6.

Heneghan was instructed to pry up the cover near the peak of the roof. Heneghan’s teammate was instructed to use a saw to cut open ventilation holes in the plywood covers. The saw failed, and Heneghan was told to open the ventilation holes with his axe. He grabbed his axe from the ground, climbed to the roof, and began using his axe to open the plywood covers. Heneghan, 2020 IL App (1st) 192163-U, ¶9.

After Heneghan removed the first cover, he was directed to pry up the cover near the edge of the roof. The cover was easy to remove and gave no resistance. Heneghan’s momentum caused him to lose his balance and fall twelve feet to the ground. Heneghan, 2020 IL App (1st) 192163-U,¶ 10

Heneghan suffered bilateral calcaneal fractures, required multiple surgeries, and was permanently disabled causing him to be unable to work as a firefighter. Heneghan, 2020 IL App (1st) 192163-U, ¶11.

Heneghan was approved for a line-of-duty disability pension, but was denied PSEBA benefits because the City’s Safety and Workers’ Compensation Manager decided that Heneghan’s injuries were “not in response to what was reasonably believed to be an emergency” as required by section 10(b) of the Act.  Heneghan, 2020 IL App (1st) 192163-U, ¶14. The circuit court confirmed the decision of the city denying Heneghan PSEBA benefits, and Heneghan appealed to the appellate court. Heneghan, 2020 IL App (1st) 192163-U, ¶18.

The sole issue before the Appellate Court was whether Heneghan’s injury satisfied §10(b)’s requirement that the injury occur “as the result of the firefighter’s response to what is reasonably believed to be an emergency.” 820 ILCS 320/10(b).  Heneghan argued that he was responding to what he reasonably believed to be an emergency when the saw failed during the exercise.

The court was not persuaded by Heneghan’s argument, and affirmed the decision of the circuit court upholding the City of Evanston’s denial of PSEBA benefits. The court held that Heneghan’s catastrophic injury was not a consequence of the failure of the saw during the exercise, based on the following:

  • The emergency that Heneghan described was the failure of the saw and his belief that the vent covers could not be opened. The emergency ended once Heneghan successfully pried open the first cover with axe. Heneghan, 2020 IL App (1st) 192163-U, ¶34
  • Heneghan could not reasonably believe that his fellow firefighters were still in imminent danger after finding a replacement tool. Heneghan also would have known that it was possible to open the vent with his axe. Heneghan, 2020 IL App (1st) 192163-U, ¶34
  • Heneghan was not injured because of his actions addressing the saw’s failure. Instead, he was injured because he miscalculated how much force would be necessary to open the cover, used too much force, and fell from the roof as a result. The loose vent cover did not create a new emergency. Therefore, Heneghan’s fall was due to his miscalculation of force, not from a consequence of the saw’s failure. Heneghan, 2020 IL App (1st) 192163-U, ¶35

The specific issue surrounding the failure of the saw was resolved, and the emergency had ended before Heneghan was injured.  Heneghan, 2020 IL App (1st) 192163-U, ¶37 Therefore, the appellate court affirmed the circuit court’s decision confirming the City’s denial of PSEBA benefits.

Takeaways:

  1. When applying for PSEBA benefits, a public employee should be careful and deliberate when describing the emergency that gave rise to the injury. What may be an emergency in one circumstance may not be an emergency in another circumstance. “The question of whether an emergency exists is not categorical but depends on the circumstances of the moment.” Pedersen v. Village of Hoffman Estates, 2014 IL App (1st) 123402, ¶ 58.
  2. The Act does not define the phrase “as the result of.” No Illinois court has expressly defined or construed that phrase as used in the Act. The appellate court noted that in the case of Marquardt v. City of Des Plaines, 2018 IL App (1st) ¶23, the appellate court wrote that the dictionary defines the term “result” as “[a] consequence, effect or conclusion” and equates the phrase “as a result” with the phrase “because of something.” However, the court declined to equate the phrase “as a result of,” as used in the Act, with proximate cause. Perhaps arguing that the removal of the vent covers constituted the emergency as opposed to the failure of the saw could have yielded a different result in this case? Maybe, maybe not.

 

***This case is a Rule 23 order published prior to January 1, 2020 so it is not to be cited for persuasive purposes. However, Rule 23 orders that are issued after January 1, 2020 can be cited for persuasive purposes. ***

In order to qualify for a line-of-duty disability pension, a police officer in Illinois must be disabled as the result of an injury resulting from an “act of duty” as defined by the Pension Code. The mere fact that an officer is on duty at the time he or she is injured is not enough to qualify the officer for a line-of-duty disability pension. 

Paul Griffin, a detective with the New Lenox Police Department, injured his left knee on September 7, 2016. When Detective Griffin reported to work at 8 a.m. on that date, his supervisor informed him that he was to testify before a grand jury at the county courthouse pursuant to a subpoena. Detective Griffin drove his assigned vehicle to the courthouse along with his partner, Jeff Furlong. Upon arriving at the courthouse, Detective Griffin parked the vehicle and carried paperwork, police reports and the subpoena into the courtroom.

After his testimony had concluded, Detective Griffin and his partner Jeff Furlong left the courthouse and walked towards the vehicle with the intention of driving back to the police station. While getting into the vehicle, Detective Griffin slipped off the curb, hyper extended his knee, and grabbed the car door to keep from falling. He immediately noted pain in the front and rear of his left knee.  He returned to the police department and reported the incident to his supervisor.

Detective Griffin sought medical treatment that eventually led to a knee replacement in August of 2017. He resigned his position with the department on October 10, 2017. The resignation was unrelated to the knee injury that occurred on September 7, 2016.

Detective Griffin applied to the Board of Trustees of the Village of New Lenox Police Pension Fund for a line-of-duty disability pension pursuant to section 3-114.1 of the Illinois Pension Code. In the alternative, he requested a not-on-duty disability pension. In accordance with section 3-115 of the Code, Detective Griffin was examined by three physicians.

THE EXAMINING PHYSICIANS

The first physician was Dr. Junaid Makda, a board-certified orthopedic surgeon. Dr. Makda opined that Detective Griffin was permanently disabled, and that the disability was a direct result of a permanent aggravation of a pre-existing condition. The second examining physician was Dr. Leon Huddleston, a board-certified physical medicine and rehabilitation physician. Dr. Huddleston diagnosed pre-existing degenerative changes in the left knee that were aggravated by the September 7, 2016 accident. Dr. Huddleston also noted that Detective Griffin would have difficulty stooping and bending due to limited range of motion and pain in the left knee. The final examining doctor was Dr. Daniel Samo, an occupational and environmental medicine physician. Dr. Samo noted that prior to the September 7, 2016 accident, Detective Griffin had been fully functioning and asymptomatic in regard to his underlying preexisting degenerative left knee condition. Dr. Samo further opined that the September 7, 2016 injury caused Detective Griffin’s left knee condition to become symptomatic.

THE BOARD’S DECISION

The Board found that Detective Griffin was disabled by the September 7, 2016 accident. The Board denied a line-of-duty disability pension, and instead awarded a not-on-duty disability pension. In support of their decision the Board pointed to the following facts:

  • Numerous citizens walk to and from buildings with paper in their hands every day.
  • Detective Griffin was not on patrol or responding to a call when he misstepped.
  • Detective Griffin had a motive to be dishonest in his testimony because he would be unable to return to work if the Board denied him benefits.
  • Detective Griffin only applied for disability benefits after learning that he was under investigation and would likely be discharged.
  • The Board found Detective Griffin to be less than credible.

The Board decided that slipping off a curb while getting into a car to return to the police station does not involve special risks. Detective Griffin argued that he was engaged in an act of duty when he was injured because he was complying with a direct order to complete a required duty as detective, and therefore faced special risks.

THE CIRCUIT COURT’S DECISION

Detective Griffin sought review of the Board’s decision before the circuit court of Will County, naming the Village of New Lenox Police Pension Fund, the Board of Trustees of the Village of New Lenox Police Pension Fund, and the Village of New Lenox as defendants. The court reversed the Board’s decision. Subsequently, the Board appealed the case to the Illinois Appellate Court.

THE APPELLATE COURT’S DECISION

The appellate court reversed the circuit court, and agreed with the Board. In support of its decision confirming the Board’s award of a non-duty disability pension, the appellate court reviewed the requirements for a line-of duty disability pension. Section 3-114.1(a) of the Pension Code provides for a line-of-duty disability pension:

If a police officer as the result of sickness, accident or injury incurred in or resulting from the performance of an act of duty, is found to be physically or mentally disabled for service in the police department, so as to render necessary his or her suspension or retirement from the police service, the police officer shall be entitled to a disability retirement pension.

A police officer shall be considered “on duty” while on any assignment approved by the chief of the police department of the municipality he or she serves, whether the assignment is within or outside the municipality.

A police officer is not always performing an act of duty within the meaning of the Code just because he or she is “on duty.” There has to be something more than just being “on duty” to receive a line-of-duty pension. The disability must be the result of an accident or injury sustained in the performance of an “act of duty”. The Code defines “act of duty” as:

Any act of police duty inherently involving special risk, not ordinarily assumed by a citizen in the ordinary walks of life, imposed on a policeman by the statutes of this State or by the ordinances or police regulations of the city in which this Article is in effect or by a special assignment; or any act of heroism performed in the city having for its direct purpose the saving of the life or property of a person other than the policeman. 40 ILCS 5/5-113.

The Appellate Court conclude that Detective Griffin was not performing an act of duty when he was injured on September 7, 20176. He was walking toward his police vehicle while carrying paperwork in the courthouse parking lot. He was not looking for crimes, and nobody contacted him on his department phone or radio to respond to any emergency call or service. He was not protecting the public, responding to a disturbance, patrolling or addressing a public safety hazard. He had completed all of his duties related to the grand jury at the time he slipped and injured his left knee. Therefore, the court opined, Detective Griffin was not acting in a way different than a citizen in the ordinary walks of life.

THE TAKEAWAYS

  • The court is aware that many of the duties performed by police are the same or similar in civilian occupations. The court is also aware that there is no comparable civilian occupation to that of a police officer responding to the call of a citizen. When police officers are called upon to respond to a citizen, they must have their attention and energies directed toward being prepared to deal with any eventuality, and unlike an ordinary citizen, the police officer has no option as to whether to respond. It is the duty of the police to respond regardless of any hazards they encounter.
  • In this case, Detective Griffin was acting in a capacity in which civilians commonly act. Ordinary citizens are called upon every day to testify in court and face the same risk of slipping on a curb when returning to their vehicle with papers in hand. The court found that although Detective Griffin’s presence in the courthouse parking lot was the result of a department requirement, there was no evidence that he was exposed to special risks as a result.
  • The mere act of carrying police reports and subpoenas will not be enough to expose an officer to special risk. This is different from the act of an officer serving a notice to appear which has been held to be an act of duty. According to the appellate court, the type of documents Detective Griffin was carrying wasn’t enough to render Detective Griffin’s act of walking to his vehicle an “act of duty.”

Applying for a disability pension as a first responder can be a tricky proposition. When applying for disability benefits, first responders are allowed to hire a lawyer to assist them with their application and represent them in proceedings before Pension Board. If you are a first responder and have questions about either a work injury or a disability pension application, feel free to call me for a free consultation.

 

Can you have your wage differential and your perm total, too? In the case of Chlada v. Ill. Workers’ Comp. Comm’n, 58 N.E.3d 848, 405 Ill.Dec. 587 (Ill. App. 2016) , the answer from the Appellate Court was a resounding YES. In this case, the petitioner was employed as a beer truck driver / salesman. He suffered two separate work injuries. The first injury occurred on July 15, 1999. This led to permanent restrictions and an accommodation that paid less than he earned as a truck driver / salesman. The second injury occurred on October 23, 2002, and led to additional restrictions that went unaccommodated by the employer and was followed by a thorough but fruitless self directed job search followed thereafter by an award for permanent total disability benefits.

THE FIRST ACCCIDENT

On July 15, 1999, petitioner injured his lower back while pulling a hand truck loaded with six cases of beer up a stairway. From January 17, 2000 through March 15, 2000, petitioner worked a light duty job in the employer’s warehouse. While working light duty, petitioner earned only $629.20 per week for a 40 hour work week working the warehouse job, whereas he had earned $1294.20 per week as a driver / salesman. The employer paid wage differential benefits during the time that petitioner worked the light duty job warehouse job.  On May 31, 2000, petitioner was eventually given permanent restrictions of no continuous, repetitive lifting, carrying, bending or stooping, along with no repetitive lifting over 35 pounds, and no occasional lifting over 75 pounds.

Petitioner returned to the light warehouse job on June 12, 2000. He continued to work in that capacity through January 12, 2003, initially earning $15.73 per hour for 40 hours per week. This later increased to $16.23 per hour for 40 hours per week.

THE SECOND ACCIDENT

On October 23, 2002, petitioner injured his neck while working in the warehouse. While pulling up on the spring of a dock plate, he experienced neck pain that radiated down into his left arm. This led to the imposition of restrictions including no repetitive activities of the upper extremities, frequent bilateral lifting and carrying at the chest level limited to 58 pounds, and only occasional overhead reaching. These restrictions were deemed permanent as of January 14, 2004. The employer did not take petitioner back to work after the additional restrictions were imposed, and petitioner conducted a job search during which he contacted over 1000 companies. He never received a job. His last date of work was January 13, 2003.

THE PROCEDURAL HISTORY

Petitioner filed two separate workers’ compensation claims, one for the July 15, 1999 case (lower back), and a second claim for the October 23, 2002 case (cervical spine). The parties stipulated that in the year prior to the 1999 work accident, petitioner’s average weekly wage was $1294.20. Petitioner also produced a collective bargaining agreement during the hearing that package driver salesmen earned .37 per case. Petitioner testified that he had averaged 4,500 cases sold per week. The CBA also showed that warehouseman were paid $17.49 per hour. Petitioner testified that prior to his cervical injury, he worked as a warehouseman for 40 hours per week on average. Petitioner’s evidence regarding wages was unrebutted.

The Arbitrator found that petitioner had proven that he sustained a compensable accident on July 15, 1999 and that his lower back condition was causally related to that accident. The Arbitrator awarded TTD for 27 weeks, with the final TTD period ending on June 11, 2000. The arbitrator also awarded the petitioner “TPD / maintenance” benefits for the period from June 12, 2000 through October 23, 2002 (the date petitioner sustained the cervical injury) at a rate of $485.65 per week.

Respondent appealed to the Commission. The Commission modified the decision by vacating arbitrator’s award of TPD / maintenance benefits and by awarding the petitioner wage differential benefits pursuant to section 8(d)(1) of the Act from June 12, 2000 through January 12, 2003. The Commission found that as a result of the July 15, 1999 work accident, petitioner was unable to return to his usual occupation as a delivery truck driver, and that although petitioner did eventually return to work for the employer, he did so as a warehouseman at a reduced hourly rate. The Commission calculated the rate of the petitioner’s wage differential benefits by calculating the difference between the petitioner’s average weekly wage as a beer truck driver ($1294.20 per week) and what the petitioner testified he was earning while he worked in the employer’s warehouse ($629.20 per week through February7, 2002 and $649.20 per week thereafter), and then multiplying the resulting figure by two-thirds. The Commission awarded a wage differential benefit of $443.33 per week for the time period of June 12, 2000 through February 7, 2002, and $430 per week from February8, 2002 through January 12, 2003.

The Commission rejected the petitioner’s argument that his wage differential should be based upon the salary he could have earned as a beer truck driver at the time of the arbitration ($1665.00 per week) rather than the average weekly wage he had been earning prior to his back injury. In so ruling, the Commission stated that “the parties stipulated to an average weekly wage of $1294.20 and that stipulation is binding.” In support of its decision to terminate the petitioner’s wage differential benefits on January 12, 2003, the Commission stated:

“Pursuant to Section 8(d)(1), the claimant’s entitlement to wage differential continues for the ‘duration of the disability’. The Commission finds that the claimant’s disability as a result of this injury ended on January 12, 2003 when he began losing time from work on account of his injury on October 23, 2002 (case #02 WC 54676). Therefore, no further wage differential payments would be due thereafter.”

The Commission affirmed and adopted the arbitrator’s decision in all other respects.

Petitioner sought judicial review of the Commission’s decision in the circuit court of Cook County, arguing that his entitlement to wage differential benefits did not end on January 12, 2003, and that the Commission had miscalculated the rate for those benefits. The circuit court confirmed the Commission’s determination that wage differential benefits should cease on January 12, 2003, noting as follows:

In order to qualify for wage differential benefits under section 8(d)(1) of the Act, a claimant must prove: (1) a partial incapacity which prevents him from pursuing his usual and customary line of employment; and (2) an impairment of earnings. The object of section 8(d)(1) is to compensate an injured claimant for his reduced earnings capacity, and if an injury does not reduce his earning capacity, he is not entitled to compensation under that section. After January 12, 2003, petitioner was unable to work at all due to his subsequent cervical injury. At that point, the claimant was not suffering an impairment to his earning because he was unable to show the average amount he was earning or was able to earn in some suitable employment or business after the July 15, 1999 accident.

However, the circuit court found that the Commission’s calculation of the petitioner’s wage differential benefit rate was contrary to law, and  ordered the Commission to calculate petitioner’s wage differential benefits “in accordance with the court’s findings as to the amount petitioner would have been able to earn in the full performance of his duties as a beer truck driver at the time of the arbitration hearing, and the amount that he is able to earn after his injury and subject to the limitations as the maximum amounts set forth in the Act.”

On remand, the Commission noted that the circuit court’s order had confirmed the portion of the Commission’s prior decision holding that the petitioner “was not entitled simultaneously to a lifetime wage differential and a lifetime permanent and total disability award.” However, the Commission stated that the circuit court had reversed the portion of the Commission’s prior decision in which the Commission found that the petitioner’s right to wage differential benefits terminated on January 12, 2003. The Commission stated that “[t]he Circuit Court decision specified that the wage differential award should be set at $485.65 a week and that [the] right to wage differential should extend past January 12, 2003.” based on this understanding, the Commission extended petitioner’s wage differential award through April 22, 2004, the date that the petitioner was found to be permanently and totally disabled from his cervical injury.

***Petitioner’s cervical injury resulted in the Commission finding that petitioner was permanently and totally disabled as of April 22, 2004. This finding was subsequently confirmed by the circuit court. The PTD award was not appealed to the Appellate Court.***

The Respondent subsequently filed a “Motion to Correct Clerical Error” with the Commission, arguing that the Commission had misstated and misapplied the circuit court’s remand order. The Commission denied respondent’s motion. Petitioner sought review of the Commission’s decision on remand in the circuit court of Cook County. Petitioner argued that his wage differential benefits should continue indefinitely and should not cease on April 22, 2004, because his disability from the July 15, 1999 work injury had not ended. The circuit court found that the Commission’s decision to extend the claimant’s wage differential award through April 22, 2004 was against the manifest weight of the evidence because the claimant’s entitlement to wage differential benefits terminated on January 13, 2003, “at which time PTD benefits began.” Accordingly, the circuit court set aside the Commission’s remand order.

ANALYSIS BY THE APPELLATE COURT AS TO THE DURATION OF CLAIMANT’S WAGE DIFFERENTIAL BENEFITS

This case raised a first impression regarding the interplay between wage differential benefits under section 8(d)(1) of the Act and permanent total disability (PTD) benefits under section 8(f) of the Act. Can a claimant be entitled to collect both types of benefits simultaneously when his earning capacity is diminished by a work related accident and he subsequently suffers a second work related accident that renders him permanently and totally disabled? The appellate court wrote that the fact that the claimant subsequently suffered a more disabling work injury to his neck does not alter the fact that he was still disabled from the July 15, 1999 work injury to his lower back, which permanently diminished his earning capacity. Once entitlement to a wage differential for the July 1999 back injury was established, claimant was entitled to collect such benefits for the duration of his disability, and his disability did not end merely because he suffered a second, more disabling work injury. The claimant’s entitlement to wage differential benefits would end if and only if he later became able to earn the salary he formerly earned as a delivery truck driver. That never happened in this case.

Furthermore, ending claimant’s wage differential benefits as of the date he began to miss work due to his subsequent neck injury, or as of the date he became entitled to collect PTD benefits as a result of his neck injury, the claimant would not be made whole. The PTD benefits were based on the salary he was earning as a warehouseman at the time of his disabling injury, which was less than he was earning when he was a beer delivery truck driver at the time of his back injury. If his wage differential benefits ended when his PTD benefits began, he would lose compensation for the prior work related injury that had impaired his earning potential by rendering him unable to return to work as a beer truck driver. This would frustrate the fundamental remedial purpose of the Act, which is to protect employees by providing efficient remedies and prompt and equitable compensation for their injuries.

The appellate court broke it down like this:

  • The first economic disability is compensated by paying the claimant a wage differential benefit equal to 2/3 of the difference between what he was able to earn as a beer truck driver at the time of arbitration and what he was actually earning as a warehouseman at the time of arbitration.
  • The second economic disability is compensated by paying the claimant PTD benefits in the amount of 2/3 of the salary he was earning as a warehouseman at the time of the second injury subject to the statutory cap, which amounts to $446.40 per week.
  • Thus, in order to be fully compensated under the Act for both of these work related economic injuries, the claimant should receive both wage differential benefits of $485.65 per week indefinitely, and PTD benefits of $446.40 per week indefinitely.
  • An employer should not be allowed to take advantage of a fortuitous circumstance (i.e. the timing of the PTD award) that has nothing to do with the claimant’s entitlement to wage differential benefits.

There is nothing in the Act that prohibits the Commission or the court from awarding both PTD and wage differential benefits simultaneously and indefinitely under circumstances like those presented in this case. If the legislature intends these two types of benefits to be mutually exclusive, it is up to the legislature to make sure that intention is clear. Until that happens, the court will continue to construe the Act liberally as authorizing both types of benefits simultaneously.

TAKEAWAYS

  • When handling a case, remember that a prior wage differential award can run concurrently with a subsequent award for PTD benefits. The two are not mutually exclusive.
  • Remember that this situation applies to Commission decisions awarding wage differential and permanent total disability benefits. This doesn’t apply to past settlements of disputed wage differentials, perm totals, etc.
  • In this case, both injuries occurred with the same employer. This situation could easily occur with two separate employers. The same analysis should apply, except that now wage differential benefits are awarded only through age 67, and not for the life of the claimant.

If you have questions about what benefits you are entitled to after being injured at work, do not hesitate to contact me for a free consultation.

 

 

(From the Illinois Workers’ Compensation Commission) ​Arbitrator Anthony (Tony) Erbacci will retire effective December 31, 2020, after a long and distinguished career with the State of Illinois and the Illinois Workers’ Compensation Commission.

Arbitrator Erbacci began his career with the State of Illinois on December 1, 1982 and has continuously served the people of Illinois for a period of 38 years. At the Illinois Workers’ Compensation Commission, Tony has served as an Arbitrator from 1997, until the current date.

Please join us in extending our best wishes and appreciation to Tony for his leadership and dedication in helping to transform the IWCC into the strong organization that it is today. He has earned the respect of all members of the practicing bar and the stake holders that have had an opportunity to work with him in the disposition of thousands of matters.

Our Best Wishes and Congratulations go with Arbitrator Erbacci in his retirement from State service.

Michael J. Brennan,
Chairman

In this case, the Illinois Appellate Court addressed the denial of a line of duty disability to a fireman who suffered from post traumatic stress disorder. Gregory Prawdzik (Prawdzik) was employed as a firefighter for the Homer Township Fire Protection District Fire Department (District) starting on May 8, 2006. He also served in the Air National Guard. In 2008-2009, during his employment as a firefighter, Prawdzik was deployed for military duty in Afghanistan for 10 months.  Prawdzik testified that he encountered many life-threatening incidents while in Afghanistan, and that he felt as though his life was under constant threat and that he was going to die there. When Prawdzik returned from Afghanistan and resumed work as a firefighter for the District, he suffered from symptoms that he did not experience pre-deployment including migraine headaches, panic attacks, tightness in his chest, shortness of breath, nausea, blurred vision, irritability, sadness, emotional numbness, poor concentration, insomnia and feelings of detachment. He sought treatment, and was diagnosed by the Veterans Administration as suffering with post traumatic stress disorder (PTSD).  He was awarded VA disability benefits for PTSD, traumatic brain injury and tinnitus.

Prawdzik experienced panic attacks and related symptoms while on duty as a firefighter in 2009 and 2010, but did not report this to the District. He also experienced panic attacks while not on duty. While attempting to complete a driving program at work, Prawdzik was having issues getting into the vehicles and driving the vehicles because the firefighting vehicles were similar to the MRAP vehicles he drove while in Afghanistan. On July 13, 2011, Prawdzik informed the district that he suffered from PTSD. HE discussed some of his experiences in Afghanistan and reported that one of the things that bothered him at work was driving the fire engine and other trucks, noting the similarity between these vehicles and the military vehicles he drove in Afghanistan.

Dr. Tracy Rogers performed a fitness for duty evaluation on August 23, 2011. Rogers diagnosed Prawdzik with PTSD and found him conditionally fit for duty, noting that certain thoughts about trauma caused Prawdzik stress and “exacerbated his symptoms” and that Prawdzik was avoiding driving the fire engine and trucks because the cabs of those vehicles reminded him of the military vehicles he drove while deployed, including a military vehicle he was trapped in after receiving a head injury.  On August 6, 2013, Prawdzik reported increased PTSD symptoms to the Veterans Administration. He related this increase to his stressful work environment and driving rigs at work. The social worker who evaluated Prawdzik opined that his PTSD symptoms were impacted by “occupational stress” and “parenting stress.”

On November 7, 2014, Prawdzik was working full duty as a firefighter when he was dispatched to an emergency call. On the way back from the call, the fire truck he was in was shifting roughly between gears. As Prawdzik tried to check the pump shift lever to fix the problem, he inadvertently hit the power switch, shutting off all the power in the vehicle while the vehicle was traveling at approximately 45 miles per hour. This reminded him of his experience in Afghanistan when his vehicle was hit by an IED, and resulted in an anxiety attack followed by a progressive worsening of his PTSD symptoms thereafter. He did not report the panic attack until November 16, 2014 when he reported having issues with PTSD and asked to go home. At that time, he was placed on modified duty and never returned to full, unrestricted firefighter duties thereafter. During the three years prior to the November 7, 2014 incident, Prawdzik had been able to perform his full, unrestricted firefighter duties despite his PTSD.

Another fitness for duty evaluation was performed on November 21, 2014. The evaluator was Dr. Wasyliw. Wasyliw concluded that Prawdzik was unable to drive fire trucks due to his anxiety issues.  Since driving trucks was a necessary requirement of Prawdzik’s employment, Wasyliw found Prawdzik unfit for duty due to generalized anxiety disorder with residual PTSD symptoms and a major depressive episode. Wasyliw wrote that Prawdzik was experiencing increased generalized anxiety in early November which worsened after the November 7, 2014 work incident, noting that Prawdzik’s anxiety disorder was “more widespread” than it had ben at the time of his August 23, 2011 fitness for duty evaluation.

A May 2015 fitness for duty evaluation concluded that Prawdzik’s panic attacks could occur at any time and were not related to any specific situation. A June 3, 2015 PTSD assessment at the VA concluded that Prawdzik’s job duties as a firefighter resembled his service related traumas and contributed to his PTSD symptoms relapse. On June 18, 2015, Prawdzik filed an application for disability benefits with the Board.

THE EXAMINING PHYSICIANS

Pursuant to Section 4-112 of the Illinois Pension Code, the Board had Prawdzik evaluated by three physicians of its choosing: Dr. Robert Reff, Dr. Stevan Weine, and Dr. Cathy Frank.

Dr. Reff’s opinions

Dr. Reff opined that Prawdzik suffers from generalized anxiety disorder with residual post traumatic symptoms that prevented Prawdzik from functioning as a firefighter. Reff acknowledged that Prawdzik’s preexisting PTSD and anxiety disorder was caused by his combat experiences in Afghanistan, but opined that Prawdzik’s disability from PTSD was, at least in part, the result of his firefighter duties:

It is my opinion that Mr. Prawdzik suffers from a disability resulting from an act of duty. It was not until the November 7, 2014 indicdent that Mr. Prawdzik experienced performance limiting anxiety again. His current episode would be considered an aggravation of his pre-existing psychiatric condition, more likely than not, caused by the incident that occurred on November 7, 2014.”

Dr. Reff also opined that Prawdzik’s disability was permanent based upon the length of time Prawdzik had suffered some degree of symptoms and the significant symptoms suffered following the November 7, 2014 incident.

The opinions of Dr. Stevan Weine

Dr. Weine opined that Prawdzik was disabled and suffered from chronic PTSD, recurrent major depression, and isolated traumatic stress symptoms. Weine wrote that over time, Prawdzik’s PTSD symptoms had diminished to the point where he no longer meets the formal criteria for PTSD, but he continues to suffer from generalized anxiety disorder and major depressive disorder. Weine opined that the persistence and worsening of Prawdzik’s disorders as due to his exposure to stress as a firefighter / EMS and that although his conditions were initially caused by combat exposure in Afghanistan, they were exacerbated by the stress of firefighter work.

Dr. Cathy Frank’s opinions

Dr. Frank opined that Prawdzik’s PTSD prevented him from driving firefighter vehicles, and that his exposure to trauma on the job continues to aggravate his PTSD causing anxiety, hypervigilance, insomnia, and panic attacks, and that as long as he continued to drive fire fighting / paramedic vehicles he would continue to suffer aggravation of PTSD. Frank opined that Prawdzik’s job duties as a firefighter did not cause his PTSD or major depressive disorder, but that his employment as a firefighter could aggravate his PTSD at times.

THE BOARD’S DECISION

The Board issued a written order granting Prawdzik a “non-duty” disability pension pursuant to section 4-111 of the Code, but denied him a “line of duty” disability pension pursuant to section 4-110. The Board found that Prawdzik was entitled to a “non-duty” disability pension because he was “mentally permanently disabled for service in the fire service” as a result of the “sickness” of PTSD. The Board denied the “line of duty” disability pension because it found that Prawdzik’s PTSD “was not incurred in and did not result from the performance of an act of duty or the cumulative effects acts of duty.” The Board further noted that Prawdzik had experienced symptoms of PTSD, including some panic attacks, both before and after the November 2014 incident and that Dr. Wasyliw opined in 2015 that the panic attacks could occur at any time and were not related to any specific situation. The Board also found that there was no evidence to support Prawdzik’s claim that his disabling PTSD was caused by his performance of “general firefighting / EMS duties”, noting that Prawdzik was able to perform general firefighting and EMS duties (including fire rescue, fire suppression, and EMS duties) albeit with driving restrictions before and after the November 7, 2014 incident. The Board also found that even if there were evidence to support Prawdzik’s claim that general firefighting and EMS duties caused his PTSD, the claim would fail because “stress or depression resulting from general employment functions inherent in the occupation and common to all firefighters is not the equivalent of the specific acts of duty contemplated by section 4-110” of the Code. The Board concluded that the underlying cause of Prawdzik’s disabling PTSD was “external to, and independent of, any specific act of duty or to the cumulative effects of acts of duty.”

THE CIRCUIT COURT

Prawdzik filed a complaint for administrative review of the decision in the circuit court of Will County. The court affirmed the Board’s decision, but noted that “[h]ad the [court] been a member of the administrative board, the [court] might have reached a different conclusion.” The circuit court ruled that regardless of the standard of review that applied, the record did not justify reversal.

THE APPELLATE COURT

The appellate court reviews the decision of the Board, not the circuit court’s determination. Factual findings made by an administrative agency are deemed prima facie true and correct, and can be reversed only if they are against the manifest weight of the evidence. An agency’s decision is against the manifest weight of the evidence only if the opposite conclusion is clearly apparent, and it is particularly within the Board’s province to accord weight to the evidence, resolve conflicts presented by the evidence, and determine the credibility of witnesses.

However, the deference afforded to the Board decision is not boundless. Even when the decision is supported by some evidence, which if undisputed would sustain the administrative finding, it is not sufficient if upon consideration of all the evidence the finding is against the manifest weight. Whether the facts, as found by the Board, satisfy the standard for awarding a line-of-duty disability pension is a mixed question of law and fact subject to the clearly erroneous standard of review. This is a less deferential standard than the manifest weight of the evidence standard. Under this standard, we should affirm the Board’s decision unless, after reviewing the entire record, the court is left with a definite and firm conviction that a mistake has been committed.

To recover a line of duty disability pension, a claimant need not prove that his job duties were the sole or even the primary cause of his disability. Rather, it is sufficient that an act of duty was an “aggravating, contributing or exacerbating factor” in the ensuring disability. An “act of duty” is defined in the Illinois Pension Code as “[a]ny act imposed on an active fireman by the ordinances of a city, or by the rules or regulations of its fire department, or any act performed by an active fireman while on duty, having for its direct purpose the saving of the life or property of another person.” 40 ILCS 5/6-110.

The Board argued before the appellate court that Prawdzik’s claim is governed by a stricter causation standard because Prawdzik alleges a mental or psychological injury rather than a physical injury. The Board alleged that the Illinois Supreme Court has held that in cases involving mental disabilities, the claimant must prove that the act of duty was the sole cause of his disabling injury, not merely a contributing cause.

The Board is referencing the case of Robbins v. Board of Trustees, 177 Ill. 2d 533 (Ill. 1997), which dealt with a line of duty disability pension application by a police officer, not a firefighter. The Illinois Pension Code defines “act of duty” very differently for police officers than for firefighters. For police officers, the Code defines “act of duty” as any act of police duty “inherently involving special risk, not ordinarily assumed by a citizen in the ordinary walks of life” that is imposed on a policeman by statues, ordinances, or regulations, or “any act of heroism” having for its direct purpose the saving of a life or property of a person other than the policeman. 40 ILCS 5/5-113. For firefighters, the Code defines “act of duty” more broadly to include “any act imposed on an active fireman by the ordinances of a city, or by the rules or regulations of its fire department, or any act performed by an active fireman while on duty, having for its direct purpose the saving of the life or property of another person.” 40 ILCS 5/6-110. These divergent statutory definitions of “act of duty” entail different standards for awarding “line of duty” disability pensions to police officers as compared to firefighters.

For a police officer to receive a line of duty disability pension related to mental or psychological injury, the disabling stress must result entirely from a specific, identifiable act of duty that is unique to police work and that involves a special risk not confronted by members of the general public. This causation standard does not apply to firefighters. Unlike a police officer, a firefighter seeking a line of duty disability pension may establish that the disability is caused by an “act of duty” even if work-related stress was a contributing cause, rather than the sole cause of the disabling psychological condition.

Prawdzik presented evidence of a specific, work-related traumatic incident that aggravated his preexisting symptoms and rendered his preexisting psychological condition permanently disabling. His claim was not based entirely upon allegations of stress or depression resulting from general employment functions, and the manifest weight of the evidence establishes that Prawdzik’s psychological disability was caused, at least in part, by his work duties. The appellate court found that even when all reasonable inferences were drawn in the Board’s favor, an opposite conclusion was clearly apparent.

 

TAKEAWAYS

  • The decision by a Board is an agency decision, and the standard of review is a manifest weight standard. An agency’s decision is against the manifest weight of the evidence only if the opposite conclusion is clearly evident.
  • Whether the facts found by the Board satisfy the standard for awarding a line of duty disability pension is a mixed question of law and fact subject to the clearly erroneous standard of review. While less deferential than the manifest weight standard, it is still significantly deferential to the agency’s decision.
  • Police Officers and Firefighters are treated differently when it comes to line of duty disability pensions. When it comes to firefighters, an “act of duty” is any act imposed on an active fireman by the ordinances of a city, or by the rules or regulations of its fire department, or any act performed by an active fireman while on duty, having for its direct purpose the saving of the life or property of another person. 40 ILCS 5/6-110. For police officers, an “act of duty” is defined as any act of police inherently involving special risk, not ordinarily assumed by a citizen in the ordinary walks of life, imposed on a policeman by the statutes of this State or by the ordinances or police regulations of the city in which this Article is in effect or by a special assignment; or any act of heroism performed in the city having for its direct purpose the saving of the life or property of a person other than the policeman. 40 ILCS 5/5-113.
  • Unlike a police officer, a firefighter seeking a line of duty disability pension may establish that his disability is caused by an “act of duty” even if work-related stress was a contributing cause, rather than the sole cause, of his disabling psychological condition.

If you are a firefighter or a police offer seeking a disability pension, you are entitled to counsel. If you have questions as to whether you might be entitled to a line of duty disability pension, a non duty disability pension or an occupational disease disability pension, do not hesitate to call me for a free consultation.

If there is a third party case associated with your workers’ compensation claim, you need to be careful about what body parts you list in that contract at the time of settlement! The third district of the Illinois Appellate Court recently decided the case of Clifton Armstead v. National Freight, 2020 IL App (3d) 170777. In that case the court addressed the question of whether plaintiff’s workers’ compensation settlement contract estopped the plaintiff from pursuing injuries in his third party tort claim.

THE ACCIDENT

Plaintiff was injured on March 6, 2015. He was working as a truck driver for Manfredi Mushroom Company when his semi-truck was struck by another driver in a semi working for National Freight.  Plaintiff filed a workers’ compensation claim in Pennsylvania for his injuries, and was represented by an attorney.

THE PENNSYLVANIA WORKERS’ COMPENSATION CLAIM

During the workers’ compensation proceedings, plaintiff was examined by an independent medical examiner who opined that plaintiff had suffered an injury to his right knee as a result of the accident. The examiner further opined that plaintiff’s lower back condition was not related to the accident. On November 9, 2016, plaintiff settled his workers’ compensation claim. In the settlement agreement, plaintiff was required to state the precise nature of the injury. Plaintiff described the injury as “right knee strain. The parties agree that Claimant did not sustain any other injury or medical condition as a result of his 3/06/2015 work injury.” The agreement was signed by the plaintiff.

THE THIRD PARTY CLAIM AT THE CIRCUIT COURT

Plaintiff  filed his third party claim against National Freight and their driver in Grundy County where the accident occurred. He claimed injuries not only to his knee but to his back as well. The defendants moved for partial summary judgement on plaintiff’s third party tort claim, arguing the claim was barred under the doctrines of (1) collateral estoppel, (2) res judicata, and (3) judicial admission. The circuit court granted defendant’s motion, finding that the statement in the settlement contract concerning the scope of plaintiff’s injuries to be a judicial admission disclaiming other injuries. The court limited plaintiff’s tort claims to injuries to his right knee. The circuit court rejected summary judgement on the basis of collateral estoppel. Plaintiff moved for reconsideration, which the circuit court denied. Plaintiff then dismissed the underlying complaint.

THE THIRD PARTY CLAIM AT THE APPELLATE COURT

On January 17, 2019, the appellate court issued a Rule 23 order reversing the circuit court’s grant of summary judgment in favor of defendants. Plaintiff moved to publish the order as an opinion. On February 5, 2019, the court granted plaintiff’s motion and published the opinion the same day. Two days later, defendants filed a petition for rehearing, which the court granted.

ANALYSIS BY THE APPELLATE COURT

In the initial disposition, the court agreed with plaintiff that the statement about the scope of his injuries as contained in the Pennsylvania workers’ compensation settlement contract did not constitute a judicial admission. What exactly is a judicial admission? The court explained that judicial admissions are formal admissions in the pleadings that have the effect of withdrawing a fact from issue and dispensing wholly with the need for proof of that fact. For a statement to qualify as a judicial admission, it must be clear, unequivocal, and uniquely within the party’s personal knowledge. The statement must also be an intentional statement that relates to concrete facts, and not an inference or unclear summary. Also, judicial admissions do not include admissions made during the course of other court proceedings. Those statements constitute evidentiary admissions, not judicial admissions.

What is an evidentiary admission? Evidentiary admissions may be explained by the party and may be made in pleadings in a case other than the one being tried. The appellate court found that plaintiff’s contradictory statement about the scope of his injuries in the Pennsylvania workers’ compensation claim amounted to an evidentiary admission.

On rehearing, the defendants asked the appellate court to address their argument that plaintiffs claims were barred under collateral estoppel, stating that plaintiff should be estopped from seeking any damages beyond those identified in the Pennsylvania workers’ compensation settlement agreement. The appellate court agreed with the defendant that plaintiff’s claim was barred under the doctrine of collateral estoppel.

What is collateral estoppel?  Collateral estoppel is an equitable doctrine precluding a party from relitigating an issue decided in a prior proceeding. The minimum threshold requirements for the application of collateral estoppel are as follows:

  1. The issue decided in the prior adjudication is identical with the one presented in the suit in question.
  2. There was a final judgment on the merits in the prior adjudication.
  3. The party against whom estoppel is asserted was a party or in privity with a party to the prior adjudication.

Was the issue in the Pennsylvania workers’ compensation claim identical to the issue presented in the third party tort claim? Yes. The court found that the workers’ compensation claim resolved the issue of the extent of plaintiff’s injuries following the March 6, 2015 accident and plaintiff’s tort claim resulted from the same accident.

Was there a final judgment on the merits in the Pennsylvania  workers’ compensation claim? Yes. The settlement agreement set the parties’ rights and liabilities based upon the agreed facts stated in the agreement. Therefore, it qualified as a judgment on the merits. In Illinois, a settlement award entered by the Workers’ Compensation Commission is a final adjudication of all matters in dispute up to the time of the agreement. Consequently, the Pennsylvania settlement agreement acted as a final adjudication as to the extent of plaintiff’s injuries.

Is the party against whom estoppel is asserted a party or in privity with a party to the prior adjudication? Yes. Plaintiff in the third party tort action is the same party to the workers’ compensation case.

Since all three requirements of collateral estoppel were met, plaintiff is estopped from seeking compensation for any injury beyond that contained in the Pennsylvania workers’ compensation settlement agreement. The court went on to find that there was no unfairness in applying collateral estoppel because the Pennsylvania workers’ compensation system was in adequate. The plaintiff made no argument that the workers’ compensation forum in Pennsylvania differed in any meaningful way from the same type of proceedings in Illinois, which have long been recognized as procedurally adequate by Illinois courts. And plaintiff had a full and fair opportunity to litigate the extent of his injuries in Pennsylvania.

TAKE AWAYS

  1. When you file a workers’ compensation claim, thoroughly investigate the possibility of a third party claim, whether that claim would lie in Illinois or in another jurisdiction. You should be doing this anyway, but you may want to include a section in your intake sheet that is dedicated solely to the potential of a third party tort claim. In addition to taking the usual and customary precautions related to statutes of limitation and possible referral of the third party claim to another attorney, you will want to make sure that you list all of the injuries that are alleged by your client at the time you meet them, and keep a running tab of any other injuries that subsequently develop that may be related to that initial accident.
  2. Communicate. Communicate. Communicate. If you are not handling the third party tort claim yourself, make sure that you stay in communication with the lawyer handling the third party claim. Keep him or her informed about the medical treatment and the development of any additional injuries throughout the course of the claim. Don’t leave anything out, even if it seems mundane.
  3. When it comes time to settle the workers’ compensation claim, sit down and discuss the settlement with both your client and the attorney handling the third party claim. Make sure everybody is on board with what injuries and body parts will be listed in the contract, and what language you want to use to protect the third party tort claim. You should list injuries even if they are disputed by the employer in the workers’ compensation claim. List all the injuries, and if necessary add the word disputed after injuries that are disputed as being related to the work injury.
  4. If necessary, go to hearing. Sometimes you have no choice but to go to hearing to clear up disputes about work related injuries that are also the subject of a third party claim.

 

 

If you have a work related injury and feel that you may have a third party claim, do not hesitate to contact me for a free consultation.

With all the talk about COVID19 vaccinations in the news, have you thought about how vaccinations in the workplace could result in workers’ compensation and occupational disease claims? The Illinois Workers’ Compensation Act has a section that deals directly with vaccinations in the workplace:

Any injury to or disease or death of an employee arising from the administration of a vaccine, including without limitation smallpox vaccine, to prepare for, or as a response to, a threatened or potential bioterrorist incident to the employee as part of a voluntary inoculation program in connection with the person’s employment or in connection with any governmental program or recommendation for the inoculation of workers in the employee’s occupation, geographical area, or other category that includes the employee is deemed to arise out of and in the course of the employment for all purposes under this Act. This paragraph added by this amendatory Act of the 93rd General Assembly is declarative of existing law and is not a new enactment. 820 ILCS 305/11.

The same verbiage exists in the Illinois Workers’ Occupational Diseases Act:

Any injury to or disease or death of an employee arising from the administration of a vaccine, including without limitation smallpox vaccine, to prepare for, or as a response to, a threatened or potential bioterrorist incident to the employee as part of a voluntary inoculation program in connection with the person’s employment or in connection with any governmental program or recommendation for the inoculation of workers in the employee’s occupation, geographical area, or other category that includes the employee is deemed to arise out of and in the course of the employment for all purposes under this Act. This paragraph added by this amendatory Act of the 93rd General Assembly is declarative of existing law and is not a new enactment. 820 ILCS 310/1(d).

I have only gone to hearing on one case that involved a vaccination. My client had received a flu shot while working as a medical coder for a hospital. She had previously worked as a general nurse for the same hospital, but had taken the coder job in order to have a more flexible schedule that would allow her to care for her school age children. It was the custom and practice at the hospital that employees would be informed when flu shots were available. She received the flu vaccine on September 28, 2018. At the time the shot was administered, she was not ill and was not exhibiting any flu like symptoms. She had no prior issues with her left shoulder or her left upper extremity prior to receiving the flu vaccine.

My client began noticing pain in her left shoulder. The pain grew progressively worse, causing her to seek treatment at the hospital’s urgent care center. The doctor at the urgent care center thought she might be experiencing a possible deep muscle infection secondary to the injection, and that she might be hypersensitive to the flu vaccine. She next saw an orthopedic surgeon, who diagnosed her with left shoulder pain and a possible rotator cuff injury. An MRI was performed on October 17, 2012, revealing mild supraspinatus and infraspinatus tendinosis along with mild fraying on the bursal side of the supraspinatus tendon and articular side of the infraspinatus tendon.

My client underwent physical therapy and cortisone injections but to no avail. Surgery was performed on February 21, 2013 consisting of a left shoulder arthroscopy with posterior labral repair, extensive debridement of the labrum and rotator cuff, and subacromial decompression. She continued to have problems, and eventually underwent an MR arthrogram that revealed suspicion for a recurrent posterior labral tear. After another course of physical therapy, an FCE was performed on August 25, 2016 that resulted in permanent restrictions.

I argued that Section 11 of the Act would apply, and that the vaccination should be deemed to have arisen out of and in the course of my client’s employment as a medical coder. The Respondent argued that Section 11 of the Act would not apply, because it was a bioterrorism centered law and would not apply to our case.

The arbitrator declined to address the argument about Section 11, but still found that my client sustained a work accident arising out of and in the course of employment. The arbitrator wrote that it was clear from the evidence that my client was working for the respondent, was heavily involved with patient contact, and was advised / directed to get the flu shot to further the health interest of the patients and her employer who is in the business of providing medical care. I should also note that the respondent’s Section 12 examining physician agreed that the injuries sustained by my client were causally related to the flu shot she received on September 28, 2018. The arbitrator awarded 15% loss of use of the person as a whole, along with payment of bills and temporary total disability benefits. The case subsequently settled while pending review by the Commission.

TAKEAWAYS

  1. You can prove up a vaccination related injury without having to resort to Section 11 of the Illinois Workers’ Compensation Act or Section 1(d) of the Illinois Workers’ Occupational Diseases Act.
  2. This one is my opinion, but I think that a straightforward reading of both the Workers’ Compensation Act and the Occupational Diseases Act makes it clear that any vaccination that is administered at the workplace arises out of and in the course of employment even if the vaccination is part of a voluntary inoculation program. As long as the employee is able to show that he or she is receiving the vaccination in connection with any governmental program or recommendation for the inoculation of workers in the employee’s occupation, geographical area, or other category that includes the injured employee, the injury will be deemed to arise out of and in the course of employment.
  3. Causal connection is still going to be an issue, but it appears based upon my particular case that physical injuries resulting from vaccinations are not that uncommon. The respondent’s Section 12 examining orthopedic surgeon found causal connection in this case.
  4. I haven’t found an Illinois appellate or Supreme Court case that addresses these sections to date. I suspect that will change once the coronavirus vaccine hits the market and workplaces in the coming months.

The decision I reference in this post is an Arbitrator’s decision. It is in line with other flu vaccine cases decided by the Commission. If you would like a copy of this decision, feel free to contact me through this blog, and I’ll email you a copy.

Before the battle, a general will run through countless scenarios as to what might happen on the battlefield. Often, the keys to victory lie in lessons learned from past conflicts. It’s very much the same in any legal battle, including workers’ compensation litigation. I have yet to see any COVID19 decisions from the Illinois Workers’ Compensation Commission, but rest assured that litigation is pending as we speak. As is often the case in workers’ compensation and occupational disease claims, the blueprint to victory or defeat can be found in past decisions. One decision to add to your arsenal is the case of Omron Electronics v. Illinois Workers’ Compensation Commission, 21 N.E.3d 1245 (Ill. App. 2014). This appellate court decision gives litigants a good overview on how the Commission and the courts will look at the causation standards, and weigh the opinions of the experts and supporting evidence. Omron Electronics is particularly interesting give that the occupational disease at issue is a bacterium that spreads via respiratory droplets, and can result in acute respiratory failure and death. Does this sound familiar?

THE FACTS

The Petitioner in this claim was E. Belinda Bauer, the wife and Special Administrator for Craig Bauer, deceased. Craig Bauer was the President and Chief Operating Officer for the respondent, Omron Electronics. His job duties required international travel. He traveled to China and Japan from June 7, 2006 through June 14, 2006. He then returned to Chicago and worked from his office in Schaumburg. On June 20, 2006, Bauer left Chicago at 2:55 p.m., and flew to Sao Paolo, Brazil. He arrived in Brazil at 7:52 a.m. on June 21, 2006. He left Brazil on June 2, 2006 at 9:50 p.m., arriving in Chicago at 9:30 a.m. on June 23, 2006. His wife testified that when he returned home, she noticed that he was pale. They drove to their second home in Wisconsin, but instead of going out to dinner like they normally did, they decided to eat at home because Mr. Bauer was not feeling well. He was tired, felt achy and thought he might have the flu. The next day, Mr. Bauer awoke early and went to get a haircut. When he returned home, he laid down on the couch because he had a fever and was feeling achy. His condition worsened as the day progressed, and by late afternoon he had developed reddish-purplish spots all over his face and down his arms.

Mr. Bauer was taken to the emergency room at Mercy Walworth Hospital and Medical Center in Walworth, Wisconsin. By the time he arrived at the emergency room, the rash had spread over his entire body. He was driven to the St. Mercy Health System intensive care unit in Janesville, Wisconsin where he died of Neisseria bacterial meningitis.

THE MEDICAL RECORDS

EMERGENCY ROOM RECORDS FROM MERCY WALWORTH HOSPITAL AND MEDICAL CENTER

The records reveal that Dr. Kevin Parciak noted complaints of a rash on June 24, 2006. Parciak recorded that Mr. Bauer had started to feel some mild upper respiratory tract illness symptoms approximately one week prior, consistent of general malaise, nonproductive cough, and intermittent low-grade temperatures. The symptoms had improved somewhat over the week, but at about 5:00 p.m. on June 24, 2006, reddish-purplish spots started appearing on his bilateral lower extremities and gradually ascended throughout the rest of his body over the course of the ensuring hours up until the time of presentation. Mr. Bauer’s only medication was Mucinex, which he began taking for a cough that afternoon. Mr. Bauer denied any specific bug bites, exposure to exotic foods, or exposure to any sick contacts specifically when travelling.

Dr. Parciak’s impression was purpuric rash due to infectious etiology. Parciak also charted that he “entertained the possibility of this patient having meningococcemia” but did not have a “high suspicion” of meningitis because Mr. Bauer did not have a significant headache, neck pain, neck stiffness, or photophobia, although meningitis was still a possibility. He further opined that Mr. Bauer was most likely “septic from some unknown bacteria or viral cause which is especially concerning because of his recent travel history.” The ambulance was contacted, and Mr. Bauer was transferred to St. Mercy Health System in Janesville, Wisconsin. Parciak noted that Mr. Bauer did not exhibit any signs of deterioration.

MEDICAL RECORDS FROM ST MERCY HEALTH SYSTEM IN JANESVILLE 

Mr. Bauer came under the care and treatment of Dr. Badar Kanwar on June 25, 2006. Kanwar charted that Mr. Bauer had been sick with cold like symptoms since his return from Japan, but that he only developed a rash, generalized malaise, and weakness on June 25, 2006. When Mr. Bauer arrived, he was able to talk and answer Kanwar’s questions appropriately. Kanwar noted that MR. Bauer appeared to be in respiratory distress, appeared very cyanotic and had a diffuse, purpuric rash all over his body. Mr. Bauer became bradycardic and was sedated and intubated. He went into asytole and died. Unsuccessful attempts were made to resuscitate Mr. Bauer. Dr. Kanwar’s total time caring for Mr. Bauer amounted to 90 minutes.

The autopsy report from St. Mercy Health System in Janesville stated a final diagnosis of hemorrhagic adrenals consistent with Waterhouse-Friderichsen Syndrome, and pre-mortem blood culture positive for Neisseria meningitides.

THE EXPERTS

DR. CHARLES STRATTON

Dr. Charles Stratton testified on behalf of the Petitioner. Dr. Stratton is the clinical director of the microbiology laboratory, an associate professor of pathology and medicine, and an associate director of the pathology residency at Vanderbilt University in Nashville, Tennessee. He is board certified in internal medicine, infectious diseases, medical microbiology, and public health and medical microbiology. Dr. Stratton has had experience treating patients with Neisseria meningitides since 1971. Dr. Stratton reviewed the medical records from Mercy Walworth, St. Mercy Health System, the death certificate, the autopsy report, and Mr. Bauer’s travel itinerary. Dr. Stratton testified to the following:

  • The clinician at Mercy Walworth Hospital diagnosed Mr. Bauer with disseminated intravascular coagulation which means sepsis syndrome. Sepsis involves a cytokine storm which makes blood vessels leaky as evidenced by the purpuric rash. The leaky blood vessels in the lungs caused acute respiratory distress. Mr. Bauer was intubated and sedated, then his heart stopped.
  • The premortem blood cultures were significant because it confirmed the clinical impression from the first physician who examined the employee that he indeed had Neisseria meningitides in his blood. Neisseria meningitides is another term for meningococcemia.
  • Mr. Bauer died of meningococcemia. Dr. Stratton agreed with the cause of death listed on the death certificate.
  • Humans are the only natural reservoirs of Neisseria meningitides meaning that it is not something a person could get from drinking water, petting a cat or cleaning a chicken coop.
  • An individual can be exposed to meningococcal disease and become colonized, but not infected. These people are then carriers of meningococcal disease.
  • The most common method of transmission of Neisseria meningitides is airborne respiratory droplets. If a person is in an area with other people and someone who has colonized Neisseria meningitides coughs, sneezes, talks, or sings, the aerosolized droplets from his nasopharynx get into the air and can be inhaled by someone else causing that person to contract the organism. The droplet nuclei remain in the room and circulate until the air system replaces the air with other air. Depending on the air circulation, the droplet nuclei can float around for weeks.
  • More likely than not, the Neisseria meningitides was transmitted to Mr. Bauer through airborne respiratory droplets.
  • The early symptoms of Neisseria meningitides are nonspecific, meaning that the patient does not feel good, may have a low grade fever, and has malaise. The symptoms do not include a sore throat, runny nose, cough, or sneezing, and it does not act like a cold or upper or lower respiratory tract infection. However, a person who already has an upper respiratory tract infection is at greater risk to develop Neisseria meningitides.
  • Mr. Bauer’s records show that he had a mild respiratory tract infection, and because of that , Mr. Bauer was “primed or he had a cofactor that would make the likelihood of him not only becoming colonized but becoming infected with the Neisseria meningitides more likely.
  • The incubation period for meningococcemia is 2 to 10 days. In Mr. Bauer’s case, the concomitant respiratory tract infection acted as a cofactor and facilitated the meningococcemia so it was Stratton’s opinion that the incubation period would be 2 days for Mr. Bauer rather than 10 days.
  • International travel increases the risk for Neisseria meningitides infections, and Sao Paolo is well known in the medical literature, as well as among infectious disease specialists, as an area where there is an increased prevalence of Neisseria meningitides. The endemic rate of Neisseria meningitides is 2 to 5 per 100,000 people in Sao Paolo versus 1 per 100,000 in the United States.

Dr. Stratton opined that it was Mr. Bauer’s international travel, specifically the trip to Sao Paolo, that allowed the meningococcemia that he died from to occur. Had Mr. Bauer not gone to Sao Paulo, or had any international travel, then Mr. Bauer would not have died from Neisseria meningitides. Dr. Stratton testified that his opinions were based on his experience and training, and his ability to interpret the medical literature. He provided medical articles to support that he used evidence-based medicine in terms of coming to his decision. Those articles were admitted into evidence.

 

DR. WILLIAM LAWRENCE DREW

Dr. Lawrence Drew also testified on behalf of the Petitioner. Dr. Drew is the director of the virology laboratory at the University of California at San Francisco and the chief of infectious disease at the University of California San Francisco Medical Center. He has a Ph.D. in experimental pathology with an emphasis on virology and is board certified in internal medicine with a subspecialty in infectious disease. Dr. Drew reviewed the medical records from Mercy Walworth and St. Mercy Health System in Janesville. Here are some of the important and interesting facts derived from this testimony:

  • As soon as Dr. Drew saw that the employee had been to Brazil, it was “a very major red alert to someone in his field because Brazil is known for an ongoing problem with meningococcus.” Drew testified that Brazil has at least three to six times the amount of problems with this organism than the United States.
  • He agreed with the cause of death as Neisseria meningitides bacterium. He also found it significant that the death certificate noted an interval between onset and death of one or two days. He felt this supported a very brief incubation period and a connection to the employee’s exposure in Brazil. The incubation period for Neisseria meningitides is completely compatible with Mr. Bauer having acquired it in Brazil.
  • Typically, a person who is infected with the Neisseria meningitides bacteria does not develop the clinical disease. A small subset may develop respiratory symptoms such as pharyngitis, a sinusitis, or a runny notes. An exceedingly small subset will develop a more serious disease such as meningococcemia or meningococcal meningitis.
  • The mild upper respiratory tract symptoms that Mr. Bauer was experiencing could have been due to Neisseria meningitides, but were more likely to have been a separate illness acquired before going to Brazil.
  • An ongoing prior infection may weaken a person’s defenses against Neisseria meningitides.

Dr. Drew testified that he reviewed Dr. Stratton’s report and he agreed that he is someone who has sufficient expert qualifications to write opinions concerning Neisseria meningitides. Dr. Drew agreed with Dr. Stratton’s opinions, testifying that “I can say that Mr. Bauer would not have died at this time in his life from this infection had he not made that trip to Brazil.”

 

DR. JEFFREY COE

Dr. Jeffrey Coe prepared a report at the request of the Respondent. Dr. Coe is board certified in occupational medicine. He reviewed the medical records, noting that Mr. Bauer became acutely ill with symptoms and clinical findings consistent with bacterial meningitis following his return from a business trip. Dr. Coe’s report contained the following facts:

  • Neisseria meningitides is spread though direct hand contact or droplets spread by coughing or sneezing from an asymptomatic carrier.
  • The incubation period varies from 2 to 10 days.

Dr. Coe opined that it would be impossible to state within a reasonable degree of medical certainty that the employee contracted bacterial meningitis during his business trip to Brazil in June 2006. His opinion was based on the fact that because the incubation period ranges from 2 to 10 days, it would be impossible to determine whether the employee was exposed to the bacteria before or during his trip to Brazil.

DR. FRED ZAR

A report from Dr. Fred Zar was also offered into evidence. Dr. Zar is a professor of medicine, the vice head for medical education, and the program director for internal medicine at the University of Illinois at Chicago. Dr. Zar wrote the following:

  • It was clear that Mr. Bauer died of meningococcal meningitis despite receiving timely and appropriate care.
  • Carriers transmit the bacteria to another person via respiratory secretions.
  • The typical clinical manifestations of infection include an acute onset of fever, nausea, vomiting, headache, altered mental state, severe muscle aches and about 50% of infected people will have a rash.
  • The incubation period for Neisseria meningitides is 4 days with a range between 2 and 10 days.
  • The first symptom Mr. Bauer appeared to have was the rash which occurred on the evening of June 24, 2006.

Dr. Zar opined that the bacterium was acquired 2 to 10 days prior to the appearance of the rash or sometime between June 14 and June 22, 2006. Because the average incubation period is four days, he opined that June 20, 2006, was most likely the date that Mr. Bauer contracted the bacterium. However, because of the incubation period, Dr. Zar opined that it was impossible for him to tell with any degree of medical certainty whether Mr. Bauer contracted the bacteria in the United States or Brazil.

Dr. Zar amended his report over a year later, noting that because Mr. Bauer was only in Brazil for about 36 hours, the time period represents only 19% of the total range of known incubation for the disease, thus making it statistically more likely than not that it was not acquired in Brazil. He also opined that it was unlikely that Mr. Bauer contracted his meningococcal infection on his flight to or from Brazil.

THE WITNESSES

RICARDO MOURA

Ricardo Moura worked as a general manager for the respondent in Sao Paolo, Brazil. Moura testified that he was interviewed for the position by Mr. Bauer on June 22, 2006. Moura said that when he was interviewed, he met with Mr. Bauer for about 30 minutes, and that Mr. Bauer “looked like a person that was a hundred percent fit and one that makes sports.”

MARCOS ITO

Marcos Ito worked as the technical support manager for the respondent in Sao Paolo. He met with Mr. Bauer on June 21, 2006 along with Eduardo Penteado. The three had dinner together at a restaurant that evening which lasted about 45 minutes. The next day, Mr. Bauer conducted interviews at the office, and left at around 3:00 p.m. to go to the airport.

EDUARDO PENTEADO

Eduardo Penteado was the marketing and technology manager for respondent. He picked up Mr. Bauer at the airport on June 21, 2006. Penteado drove Mr. Bauer back to the airport on June 22, 2006. He testified that Mr. Bauer did not look like he had any symptoms that might be the start of meningitis, but that he looked tired like a long distance traveler.

THE SPECIAL ADMINISTRATOR, E. BELINDA BAUER, WIFE OF CLAIMANT, CRAIG BAUER (DECEASED)

Mr. Bauer’s wife, who served as the special administrator and petitioner in this matter, testified that prior to June 25, 2006, Mr. Bauer was in good health and he was not under the care of any doctor. She helped Mr. Bauer pack for the trip to China nad Japan, noting that Mr. Bauer was excited about the trip because it involved an acquisition. She did not observe any physical problems or ailments on his return from China and Japan. She also confirmed that Mr. Bauer did not have any physical problems or ailments that she was able to notice prior to the trip to Brazil.

Stephen Kozik

Stephen Kozik was employed by the respondent for 19 years, and Mr. Bauer was his mentor. The two communicated on a daily basis by phone, in person and by email. On June 20, 2006, he received an email from Mr. Bauer stating that he was doing fine, but thought he might have picked up the bird flu in China. Kozik acknowledged that he did not know if Mr. Bauer’s comment was tongue in cheek, because the bird flu was news at the time of the email, and Mr. Bauer may have been joking around.

THE ARBITRATOR’S DECISION

The arbitrator denied benefits, finding that petitioner had failed to prove by a preponderance of the credible evidence that Mr. Bauer was infected with Nisseria meningitides while in Brazil. The arbitrator found that the evidence supported a finding that Mr. Bauer contracted meningitis while in the United States before he left for Brazil.

THE COMMISSION’S DECISION

The Commission unanimously reversed the arbitrator, finding that petitioner proved by a preponderance of the evidence that the employee acquired Neisseria meningitides during the course of his travels to Brazil. The Commission found the opinions of Dr. Stratton and Dr. Drew to be more persuasive than the opinions of Dr. Coe and Dr. Zar. The Commission awarded death benefits, burial expenses and reasonable and necessary medical expenses in the amount of $10,359.69.

THE CIRCUIT COURT’S DECISION

The Circuit Court of Cook County confirmed the Commission decision.

THE APPELLATE COURT’S DECISION

The respondent argued that the Commission decision was contrary to law as the evidence presented was legally insufficient to establish exposure, and the decision was based on mere speculation and conjecture. The court corrected the respondent, noting that their argument was not a legal argument, but an argument based on the sufficiency of the evidence. The Commission’s factual findings are reviewed under the manifest weight of the evidence standard and are not reviewed de novo. The court quickly moved to the real issue in the case, whether there was a causal connection between Mr. Bauer’s contracting Neisseria meningitides and his employment.

“A disease shall be deemed to arise out of the employment if there is apparent to the rational mind, upon consideration of all the circumstances, a causal connection between the conditions under which the work is performed and the occupational disease. The disease need not to have been foreseen or expected but after its contraction it must be apparent to have had its origin or aggravation in a risk connected with the employment and to have flowed from that source as a rational consequence.” 820 ILCS 310/1(d). 

The appellate court wrote that “[n]othing in the statutory language requires proof of a direct causal connection.” Sperling v. Industrial Commission, 129 Ill.2d 416, 421 (1989). A causal connection may be based on a medical expert’s opinion that an accident “could have” or “might have” caused an injury. Consolidation Coal Co. v. Industrial Commission, 265 Ill. App. 3d 830, 839 (1994). And “a chain of events suggesting a causal connection may suffice to prove causation even if the etiology of the disease is unknown.” Id. 

The appellate court noted that the Commission found the opinions of Dr. Stratton and Dr. Drew to be more persuasive than those of Dr. Coe and Dr. Zar. The court reminded respondent that “[t]he Commission is charged with resolving conflicts in medical opinion evidence, and that it is the function of the Commission to judge the credibility of witnesses, resolve conflicts in the evidence, assign weight to be accorded the evidence, and to draw reasonable inferences from the evidence. See Bernardoni v. Industrial Commission, 362 Ill.App.3d 582, 597 (2005); see also Hosteny v. Illinois Workers’ Compensation Commission, 397 Ill. App. 3d 665, 674 (2009). In light of this precedent, the appellate court could not conclude based on the record that the Commission’s decision was contrary to the manifest weight of the evidence.

TAKEAWAYS 

  1. Construct a timeline and gather evidence before you hire your experts. An occupational disease claim is a war of experts. But as the courts have instructed us time and time again, the opinions of an expert are only as credible as the information that opinion is based upon. In any occupational disease claim, it is essential that you have a timeline of events. The more detailed, the better. It will also be important to present witness testimony as to how the claimant appeared during this timeline. Did the claimant appear tired? Did he or she have a nagging cough or complain of a fever? All of this will be important information that you can provide to your expert for review. Best practices would include obtaining signed affidavits from witnesses early in the claim when their recollection of events is better. Stories can change over time. Be sure to provide these affidavits to your experts for review along with medical records.
  2. Get the best expert you can afford: As you can see from this claim, the Petitioner went to great efforts to secure testimony from well recognized experts in the fields of infectious diseases, public health and virology. Make sure your experts are in possession of all the relevant evidence, including witness statements and timelines.
  3. Don’t rely on reports. In an occupational disease claim, it is important that the arbitrator and the Commission have an opportunity to see how an expert responds to questions on cross examination. Make sure that you offer depositions of your experts into evidence at the time of the hearing.
  4. Try your case with the Commission and the Appellate Court in mind. As you can see from this claim, the Commission had a decidedly different take on the facts and the medical opinions than the arbitrator. Make sure that you offer solid evidence that will support a Commission decision in your favor on appeal, and withstand a manifest weight standard when your claim reaches the appellate court.