Keefe: Can't Legislate Causation in State Workers' Comp

Tuesday, April 25, 2017 | 0

Gov. Bruce Rauner, state Sen. Christine Radogno and other Illinois legislators were fighting to change “causation” in workers’ comp with an eye on saving billions for business and local government.

Eugene Keefe

The defense team here at Keefe, Campbell, Biery & Associates told all of our readers and anyone who will listen: You can’t change causation, because it is a common-sense issue that isn’t truly amenable to legislative fiat. As we have advised, Rauner controls the jobs of our administrators and if he tells them to be conservative on causation or look for other work, they probably will be conservative on causation. Doesn’t seem that complex to me.

Illinois firefighter unions have spent literally millions to convince our General Assembly and our nutty legislators to create a presumption of causation on cardiac, pulmonary and cancer problems. This approach is precisely the opposite of what the governor wants, but the lobbyists for the unions were still seeking to liberally legislate causation.

In short, Illinois has a statutory presumption of WC causation if a firefighter begins to suffer from heart problems. I assure our readers it is a rebuttable presumption and thankfully, the facts still have to point to the problem being related to work.

When the General Assembly added Section 6(f) to the Workers’ Compensation Act in 2007, I was quoted to confirm the fear would be that Illinois firefighters with at least five years’ experience might be summarily entitled to expensive WC benefits if they have heart attack “anywhere on the planet, doing anything on the planet.”

But two shocking recent rulings by our Appellate Court — WC Division in Johnston v. IWCC, and now Simpson v. IWCC — have now made it crystal clear “that’s not going to be the case,” as I was recently quoted in a national publication.

Section 6(f) of the WC Act provides that any disability caused by a “blood-borne pathogen, lung or respiratory disease or condition, heart or vascular disease or condition, hypertension, tuberculosis or cancer” is presumed to be causally connected to a person’s work as a firefighter, emergency medical technician or paramedic if the claimant worked as a firefighter, EMT or paramedic for at least five years.

In the Johnston decision issued about a week ago, a claimant suffered a heart attack while sweeping his parking spot at the firehouse. Faced with such facts, our Appellate Court said the Section 6(f) presumption can be rebutted if an employer can offer at least “some evidence sufficient to support a finding that something other than claimant’s occupation as a firefighter caused his condition.”

The court concluded that evidence of claimant Kevin Johnston's many risk factors for developing and suffering from coronary artery disease — including obesity, smoking and family history — were enough to rebut the statutory presumption.

Please note that Illinois firefighter unions obtained passage of Section 6(f) with the thought that their members couldn’t lose on causation; any cardiac issues are presumed to be work-related. In my opinion, causation still has to be properly determined by our hearing officers, who carefully consider the facts and expert opinion.

This past week, the same Appellate Court, WC Division, issued its ruling in Simpson, which involved a claim by a fire battalion chief from Peoria who suffered a mild heart attack while at home, doing literally nothing for the department. I assure you the attorneys who brought this claim thought the causation standard was a complete judicial lock and couldn’t lose. Think again! A finding of causation still needs facts confirming a relation to work actions.

The court said Section 6(f) could still apply to claimant Curtis Simpson, even though his job was mainly administrative, since he served as a frontline firefighter for 22 years and continued to respond to live fires as a battalion chief in order to coordinate firefighting efforts.

However, the court said the City of Peoria successfully rebutted the statutory presumption under the standard laid out in the Johnston decision, with the testimony of its medical expert. The same expert who opined in Johnston testified that Simpson had three major risk factors for heart disease: high cholesterol, hypertension and obesity. These risk factors caused Simpson to develop the heart disease that resulted in his at-home heart attack, the expert said.

The arbitrator found causation and awarded 25% body as a whole, or about $83,000. The Illinois Workers' Compensation Commission reversed and denied the claim. The Appellate Court said the IWCC was entitled to weigh the credibility of the witness testimony, and the commission’s decision to accept the opinion of the city’s expert was within the manifest weight of the evidence. I salute the panel for an excellent and well-reasoned ruling.

Appellate Justice William E. Holdridge, the lone dissent in both the Johnston and the Simpson decisions, is from Peoria. He thought Section 6(f) requires an employer to affirmatively show fighting fires was not a causative factor in the worker’s development of heart problems. I promise you, Justice Holdridge takes the very liberal view that any firefighter with a heart attack or other cardiac issue at any time, anywhere, suffers it due to work, whether at work or at the mall or a Little League ballgame.

According to the International Association of Fire Fighters, 37 states provide a presumption of compensability to firefighters with cardiac conditions. There are also 32 states that provide a similar presumption to firefighters with pulmonary ailments, and at least 33 with a cancer presumption.

The firefighter presumption for cardiac, pulmonary and cancer is based on an urban legend. The folks from the firefighters unions argue that their members are constantly swathed in smoke. I assure our readers that very few firefighters across our country fight live fires anymore. If you look at statistics and not legislative public relations, most of their work is actually medical calls for heart attacks and strokes. You don’t get a heart attack from carrying out a patient on a gurney.

But I am also sure you can’t legislate causation. The cause and effect between work and a medical condition have to be clear to the hearing officers who remain the gatekeepers. In these claims, I feel the IWCC got it right and, other than Justice Holdridge as an outlier, the Appellate Court agreed. I am sure the attorneys who represent firefighters are going to limit themselves to claims where causation is clearer and supported by the facts.

Eugene Keefe is a founding partner of Keefe, Campbell, Biery and Associates, a Chicago-based workers' compensation defense firm. This column was reprinted with his permission from the firm's client newsletter.