Illinois employers should review and take note of this important Commission decision which indicates simply because a heart attack or other cardiac event occurs while a claimant is working does not necessarily mean the accidental injury is compensable under the Act. Claimant and their counsel still must meet their burden of proof in demonstrating a compensable event through expert testimony and a preponderance of the evidence. As we indicated when Twice Over Clean was issued, we were greatly concerned any and all cardiac events or dysfunction might be covered in Illinois because claimant in that ruling was found to have arteries that were 95% occluded and his own doctor said he could have had a heart attack while brushing his teeth. It would appear our Commission is still using strong common sense in deciding when and if to provide Illinois’ high death benefit.

In Dragovan v. Western Utility Contractors Inc., 06 IL.W.C. 31304, No. 09 I.W.C.C. 0969 the Commission reversed an arbitration decision which found Decedent to have sustained fatal cardiac arrhythmia. It was undisputed Decedent in Dragovan had a labor intensive job. On the date of claimed loss, he had in fact been digging and performing strenuous physical labor. However this work was performed several hours prior to his death. Decedent was not performing heavy physical labor of any kind when the fatal cardiac event began.

Although Petitioner’s expert opined Decedent’s physical activity “led” to the fatal event, both experts agreed Decedent had a globoid-shaped heart with a longstanding occlusion of the descending coronary artery that left only a pinhole-sized opening, a condition that greatly increased the likelihood Decedent would experience cardiac arrhythmias, thus increasing the risk of sudden death. More important, both expert physicians also agreed Decedent’s heart was in such a diseased state little or no physical activity was needed for cardiac arrhythmia to occur. Nevertheless, the Arbitrator found this case to be analogous to Twice Over Clean and Petitioner’s expert to be more credible and awarded full death benefits. As we have indicated death benefits in Illinois are start at over $600,000 and now cap at $1,615,900!! We consider Illinois to be the third highest state for death benefits in the entire country.

On review the Commission disagreed and clearly distinguished this case from Twice Over Clean in that Decedent in this claim was neither performing physical labor at the time of the incident nor was he working at or near the level of physical activity as claimant in Twice Over Clean. To be clear, in Twice Over Clean the claimant was actually performing physically demanding labor outside in the cold in Minnesota when symptoms related to a non-fatal heart attack were experienced. In this case Respondent’s expert testified the physical activities performed earlier in the day by Decedent were too far away from a temporal perspective to be relevant in causation. Thus even with medical testimony that physical activity could precipitate cardiac arrhythmia and later death, the Commission viewed the facts and testimony in their entirety and issued a well-reasoned thoughtful decision which provides significant insight into how such claims should be handled.

This case is of extreme importance to anyone who might find themselves handling and/or defending a fatal or non-fatal cardiac or stroke claim. Please note this ruling might not apply to firefighters with five years or more of seniority—in Illinois, cardiac problems for such workers are presumed to be related to work.

Although it may seem at times as though the Act provides all-encompassing coverage to any employee who happens to be working at the time of a heart attack, stroke or other cardiac problems, thorough investigation and reliable expert testimony may speak to the contrary. With that in mind, we never recommend blind acceptance of cardiac claims simply because the incident occurs at work, it is the employer’s duty and right to fully investigate and make their decision after reviewing the facts in their entirety. Please don’t hesitate to contact us about handling, reserving or defending such claims.

This article was drafted by law student and KC&A paralegal Michael F. Sullivan. Please do not hesitate to reply with thoughts and comments or post them on our blog.

Illinois employers and more particular truck leasing organizations should be aware of this important and peculiar decision. You may want to take steps to prevent the potential windfall that may come as a result of frivolous third party claims.

In U.S. Bank v. Lindsey, No. 1-07-2606 (1st Dist. Dec. 7, 2009) the Illinois Appellate Court affirmed a Circuit Court decision on appeal. Defendant Carmichael Leasing Company leased a vehicle to a company and their driver of the leased vehicle ran into and killed a co-employee whose job it was to load the truck. Only in Illinois would the leasing company now owe over a million dollars for their simple act of leasing the vehicle that allegedly caused injury.

To clarify, on the date of injury Decedent was an employee of the driver’s employer. He was unloading trucks when he was struck by the truck being operated by the driver. There was conflicting testimony as to what precisely caused the accident, however the prevailing testimony was the driver somehow negligently misused the truck’s brakes causing the vehicle to roll and pin Decedent against another vehicle. Decedent’s ribs were crushed and he passed from his injuries.

This was an unfortunate accident to be sure, and our hearts go out to Decedent’s children but it must be noted he was under the influence of heroin at the time of the accident. In fact, Defendant’s expert testified Decedent had 10-20 times the amount of morphine in his blood as would be given to a normal patient in severe pain. This amount of morphine is not only enough to kill a man but the fact that he was able to tolerate it was suggestive of chronic abuse. Defendant’s expert further testified the amount of heroin in Decedent’s blood was tantamount to “molasses on the brain” and his cognitive and motor abilities were undoubtedly significantly impaired. This was not lost on the jury who found Decedent to be contributorily negligent, but only 50%. Likely because of unusual jury instructions including the circuit court barring of some of Defendant’s expert’s testimony, this level of comparative fault may have been far less than we would have anticipated given someone working directly next to Decedent was able to smoothly avoid injury while Decedent was crushed.

Nevertheless, $3,000,000.00 was awarded to Decedent’s estate, less 50% for his own negligence. As the Illinois Worker’s Compensation Act is the exclusive remedy for recovery against an employer in workplace injuries, Decedent’s employer was released of all civil liability. It may be presumed they paid death benefits pursuant Illinois workers’ comp law. Similarly, the driver could not be held liable as the Act provides immunity for injuries caused by the tortious acts of a coworker.

Who was then left for decedent’s estate to collect from? Well why not a company with no relation to any parties involved, other than a vehicle lease agreement with Decedent/Defendant’s employer?

That’s right, Carmichael Leasing was found to be liable for the entire award. To our knowledge, Illinois has never been faced with facts similar to this. Our Appellate court opted to take the most liberal route possible and implement what is called “logo liability.” Essentially, this means a company providing a leased vehicle is blindly liable for the negligence of the driver of said vehicle who they don’t know, don’t train and don’t warn. There were no allegations of any problem or dysfunction with the equipment. Particularly disturbing in the case at hand is Decedent was found to be within the coverage of the Interstate Commerce Act which provides protection to members of the travelling public. It is beyond us how unloading stationary trucks in the course and scope of his employment rendered Decedent a member of the “travelling public.”

The legislative intent in providing protection to the travelling public was to provide a financial remedy for those without other recourse. It was almost certainly not to provide a windfall of benefits from multiple sources with minimal or no relation to the injured party. We also don’t see the need for strict liability for anyone leasing a truck—the risk should fall upon the person who is actually negligent. The Appellate Court, in our opinion, took as liberal an approach as possible and the floodgates will almost certainly be opened for excessive litigation and frivolous third party suits, all at the cost of Illinois truck leasing companies.

This article was written by Michael Sullivan, one of our top law students and paralegals. Please do not hesitate to reply with thoughts and comments or post them on the blog. If you need the cite of the case, send a reply.

On a happier note, Illinois employers should review and understand two important Commission rulings which provide clarity with regard to the compensability of mental-mental injuries, a topic which has garnered a lot of discussion over the years and where there has long been ambiguity. We remain happy to report the Illinois Commission hasn’t gone to the legal standard on our “Left Coast” of allowing everyone who can demonstrate they are more stressed out from work than normal life can get weekly workers’ compensation benefits.

For our readers who are unaware, what Illinois calls a “mental-mental” injury occurs when normal and expected workplace stress causes psychological “injuries,” dysfunction or mental disorders. We see several such cases every year and with each claim even the most veteran adjusters have identical questions on whether it is acceptable to deny. Obviously the circumstances of each case are different and we cannot give a universal rule but in our experience it is rare that we find sufficient evidence to accept a mental-mental injury as compensable in this state. Over the years there have been conflicting decisions on the topic, however we applaud the Commission for the recently issued decisions in Cook v. Pactiv and Peters v. Albertson/Jewel Food Stores where in a well-reasoned and rational fashion, the Commission ruled against compensability for different mental-mental injuries. In doing so they provided significant clarity on the handling of such matters for attorneys on both sides, risk managers and claims adjusters alike.

In Cook, the Illinois Commission held the mental-mental theory of compensation for psychological injuries does not include mental injuries caused by stressful situations characteristic of the normal workplace. The claimant in Cook was a machine operator who alleged trouble sleeping, hypertension, depression and anxiety as a result of a change in his shifts and job duties. The case was initially found compensable by the arbitrator who noted claimant’s hypertension was physical, rendering what the Arbitrator felt was a compensable physical-mental claim.

On review, the Commission found error in the arbitrator’s rationale and reversed the decision as the physical-mental theory was improperly applied to the facts. To be clear, the physical-mental theory of compensability is applicable only where a sudden, unforeseen physical injury directly leads to an adverse mental condition. Thus the claim fell under the mental-mental theory and was not compensable because the claimant did not meet the requisite burden for establishing a compensable mental-mental claim. The Commission clearly identified the three aspects of a claimant’s burden as

1. A mental disorder must arise in a situation where stress is greater than the day to day emotional strain experienced by all employees,
2. The condition exists in reality, from an objective standpoint, and
3. The employment conditions were obviously a contributing factor to the mental disorder.

Similarly, in Peters the Commission affirmed an arbitration decision finding mental disorders not resulting from trauma must arise in a situation of greater dimension than day to day emotional strain and tension which all employees must experience. The claimant in Peters was a grocery store employee who was asked to apologize at a meeting and was prevented from leaving the room for five to ten minutes. It was ruled this situation did not expose the claimant to an identifiable condition of employment that was common and necessary to all or a great many occupations.

Please remember psychological injuries arising from sudden and unforeseen traumatic events at the Illinois work site are compensable. We tell all of our clients and readers if someone dies or is seriously injured in your workplace, you have to deal with the serious injury or death but also remember every worker who saw, experienced or knew of the accident is also potentially a claimant. Be sure to provide counseling and sensitive assistance if other ostensibly “non-injured” workers start to show signs of strain or mental problems. They may be suffering expected sequalae of the tragedy and may be entitled to benefits; a wise risk manager shouldn’t ignore their psychological needs in the workplace.

This article was drafted by law students and KC&A paralegals Michael F. Sullivan and Kevin J. Carey. We recommend all claims adjusters and underwriters use these decisions and Mike and Kevin’s analysis as guideposts for the future handling of mental-mental claims. Please respond with questions or concerns or post them on our blog.