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 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.
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. 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 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.
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.
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 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 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 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.
- 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.
- 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.
- 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.
- 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.