Pointing a Toy Gun at a Cop Is now an Accident-as-a-Matter-of-Law

Friday, May 3, 2013 | 0

You can’t make this up, folks. We are saddened to see state governors from all over the U.S. visiting/advertising and sending letters to Illinois CEOs trying to get them to move or open new operations in their states. The most vocal business-grabber is Gov. Rick Perry of Texas, who makes a compelling case for his state that has no state income tax and is creating new jobs like crazy. In contrast to the pleas of such state leaders to snatch away our Illinois jobs and industry, we read challenging Appellate Court workers' compensation decisions like this that drive Illinois business and government leaders completely batty.
 
In Diaz v. Illinois Workers' Compensation Commission, (120294WC, issued April 8, 2013), our Appellate Court's Workers’ Compensation Division reviewed the Illinois workers' compensation claim of a village patrol officer who filed for workers' compensation benefits for post-traumatic stress disorder, or PTSD, from a standoff with a person who initially appeared to be armed with a handgun and aimed it at the officer, when this officer responded to a call of disturbance between neighbors.

Reporting Officer Diaz admitted he had taken cover behind a sports utility vehicle. The suspect moved to within 10 feet of the officer. Officer Diaz also admitted he noticed the gun was brightly orange-tipped, which indicated it was a toy gun. He later confirmed the “weapon” was a toy gun. There is no question this officer was not in severe danger of imminent bodily harm at any time. Neither the toy gun nor the officer’s weapon or any other weapons were discharged at any time. The event was later peacefully resolved without any injuries. Not sure what about that set of facts should even make a workers' compensation hearing. We wouldn’t offer a dime to settle such a claim. Okay, maybe one dime.
 
If you don’t know it, the orange-tip painted on toy guns is there for two reasons. One is to signal to non-police personnel the object is a toy and isn’t capable of causing significant harm. For the mothers and fathers among our readers, the other closely related idea of “orange-tipping” a toy gun is to protect your children from being shot by police officers if they didn’t know the otherwise realistic-looking gun wasn’t a toy. We assure you police officers across the country are trained to know the difference between a toy gun and a real gun, if it is possible to make that rapid visual determination. We are also certain police officers and firefighters, security officials and judges/justices have to deal with the threat of firearms of many types every single day they are on the job. It is a risk they learn to deal with early on in their training and later in their careers. If you can’t deal with a gun or toy gun being pointed at you, you aren’t cut out to be a cop.
 
The Illinois workers' compensation arbitrator decided the claim for the officer and found this mild event was an “accident.” In a 2-1 decision, the Illinois Workers' Compensation Commission panel reversed, ruling against compensability.
 
In a shocking turn, the Appellate Court, Workers’ Comp Division found the officer was exposed to a risk which arose out of and in the course of his employment. They basically now have “locked in” the definition of this accident-as-a-matter-of-law which is going to require immediate acceptance and payment of benefits. We don’t feel all Illinois municipalities, government bodies and security companies that have sworn police officers, firefighters or security officials should have to pay generous Illinois workers' compensation benefits when there is the slightest menace to such a worker from a rubber knife or toy gun or any fake weapon. We don’t think that is a very solid idea.

The Appellate Court majority relied on the claim by petitioner in ruling the officer did not realize “until later” the object being pointed at him was a toy gun. We will bet hundreds, if not thousands of police officers, firefighters and security officials have arguably dangerous things pointed at them every day of every year—are all such events now going to be compensable accidents without any chance of defense? Are you kidding us? With deference and respect to our Appellate Court members, we feel the majority ruling is composed of typical Illinois workers' compensation mish-mash of legal buzz-words like mental-mental, physical-mental, dental-rental. None of these legal terms or concepts are contained in the Illinois Workers' Compensation Act or Rules. The terminology and debate is over judicially created concepts and not something outlined or defined in legislation.
 
The legal analysis we much prefer is from the landmark ruling of the Illinois Supreme Court in a claim named Pathfinder v. IIC. In Pathfinder, the claimant wasn’t physically injured but closely witnessed a gruesome and unfortunate accident suffered by a coworker—trust us, you don’t want the details. We have no idea why that claim was brought to the reviewing courts; benefits should have been accepted and paid by the employer. The legal standard for psych injuries provided by our highest court was and remains simple—“sudden, shocking event.” If a claimant suffers from the effects of seeing a “sudden, shocking event” at work, benefits should be due. The Supreme Court’s members didn’t feel it necessary to outline a definition to the term “sudden, shocking event.” In our minds, they left that simple challenge to the rest of us to figure out on a case-by-case basis in a reasonable fashion. We don’t feel the daily occurrence of a toy gun being pointed at a sworn police officer should be compensable as a matter of law and require Illinois employers and government bodies to pay benefits.
 
Sworn police officers, firefighters and judges/justices are warriors and need to have the chops to do their critical and life-protecting work.
 
Why is this appellate decision so impossible to understand? Well, we want all of our readers to remember not all of us can be warriors. Most of us didn’t sign up for it or train for it or understand the magic of the men and women in uniform who are warriors and put their lives on the line every day for us. Police officers who take an oath to protect us and carry weapons, wear badges and flak jackets doing their jobs know they are at daily risk whenever they do so. For civilians like your editor and our attorneys and staff, we salute each and every one of our Warriors every day and night for being the “Thin Blue Line” that protects us from miscreants, crooks and misguided folks.
 
Warriors to salute and herald God bless include Massachusetts Institute of Technology Officer Sean Collier, who was tragically killed earlier this month in pursuit of the cowardly Boston bombers. Warriors like him give their lives to protect you and me and your kids so we can congregate as a community, run in races like the Boston Marathon, go to a ball game or congregate in churches, synagogues and temples. The Warrior class of police officers, firefighters and security officials has to know and understand the risks they bravely train for and meet every minute of every shift.
 
More warriors to salute include the officers who, early Sunday morning shot and wounded a man who allegedly pointed a sawed-off shotgun at an officer during a traffic stop in the Humboldt Park neighborhood. The incident began about 4:30 a.m. in the 3600 block of West Franklin Boulevard, according to an Independent Police Review Authority spokesman. Did all the police officers in the area suffer a compensable work-related accident, as a matter of law? Should they all receive substantial WC settlements? Is there any limit to this?
 
How is Illinois growing different from the country in dealing with such issues?
 
In a 2011 case, Richter v. Village of Oak Brook, a firefighter found out he developed rhinitis when fighting fires. If you don’t know what rhinitis is, someone who suffers from rhinitis gets watery eyes and a running nose. When former firefighter Richter was no longer around smoke from fighting fires, he completely recovered. In most states across the United States, such a person would have been encouraged to find other work outside the fire department, as they clearly weren’t cut out to be a firefighter. Other than maybe the folks on the Left Coast, no one would award or reward someone for that personal and non-work-related condition of getting watery eyes and a runny nose around a fire.
 
In the People’s Republic of Illinois, we find such folks to be magically “disabled.” We can tell you how the legislation works and how the judges and justices deal with it to provide this largesse—in our eyes, it is dramatically rewarding people who never should have been Warriors to begin with. All of it appears crooked to folks outside our state; for Illinoisans, we shrug and deal with it while our politicians borrow more money to pay for it.
 
We assure you the hard-working taxpayers of Oak Brook will be contributing to a line-of-duty disability pension for former firefighter Richter for the rest of his life. While he continues to receive their money as a second income, he can work in any non-firefighter position and make thousands or millions of dollars in any job he wants without any concern about it having an effect on this generous benefit stream. As the problem occurred while fighting live fires, former firefighter Richter will also receive free lifetime family medical coverage at taxpayers’ cost—he will never pay a health care premium again for himself, his spouse or his kids. That benefit alone will almost certainly cost millions over the coming years.
 
Where do we go from here?
 
Well, this decision isn’t final. We hope the defense is asking for rehearing or certification for the Illinois Supreme Court to hear the matter. If the Appellate Court will rehear the matter, we hope they can provide some guidance on a standard for such psych claims that isn’t wildly broad and impossible to defend. We assure all of our readers, these are the sorts of rulings that will encourage police officers, firefighters, security officials and other folks to make bogus and questionable claims because, as we read this unprecedented ruling, such a situation will be impossible to defend. We don’t think that is good for lawyers on either side or the arbitrators and commissioners who consider such claims.

Eugene Keefe is a founding partner of the Keefe, Campbell, Biery & Associates workers' compensation defense law firm in Illinois. This column was reprinted with his permission from the firm's client newsletter.