Synopsis: "I See Dead People"--How Should U.S. Gov'ts Deal With First-Responder PTSD? Thoughts and Analysis by Lindsay R. Vanderford, J.D. and Gene F. Keefe, J.D.

Editor’s comment: One part of U.S. Government that is sadly necessary is handling cadavers. It is a stark aspect of life that someone has to be able to handle and manage the unfortunate duty of quickly and safely removing bodies/remains of dead humans and animals. One concern we see happening is our U.S. courts and benefits commissions appear to be leaning toward such work being a “Get-Out-of-Work-Free” card for anyone who has a poor reaction to doing what sadly needs to be done. Some States are making such expensive lifetime benefits “presumptive.”

In 2017, these States were working to pass PTSD specific legislation for first responders:

Colorado – Two bills: First recognizes PTSD as compensable under workers’ compensation and second allows for treatment of PTSD with medical marijuana
South Carolina – Created a $500,000 fund to help fund first responders’ out of pocket medical costs related to treatment of PTSD
Texas – Act eases evidentiary burden for first responders filing PTSD claims: “preponderance of evidence” and without the need to declare mental impairment
New York – Included PTSD references in 2018 budget allowing first responder claims for mental injury based on extraordinary work-related stress
Vermont – Created a true occupational presumption for PTSD
Maine – Created a true occupational presumption for PTSD

These States considered PTSD legislation but did not pass:

Florida; Connecticut; Minnesota; New Mexico; Ohio

This IL Appellate Court decision raises issues which may have wider reach than the Court is aware. We feel the Court viewed this condition to arise from normal work stresses of this worker—the Court also implicitly seems to rule the condition is completely untreatable. In our view, one of the best things for this worker would be to bring her back to other work, not as a paramedic. That is never mentioned, even in passing by the appellate panel. For example, could Claimant answer the phones in the City’s Water Department? Is the only conceivable option lifetime “no-work” benefits?

This worker worked for the City of Chicago as a paramedic for only five years. For about one more year, she worked as a driver and aide to a higher ranking fire official. Due to what we consider to be a fully expected pair of somewhat unfortunate but fairly routine events, City taxpayers are now going to pay her 75% of her salary on a tax-free basis plus group medical care for the rest of her life. Neither event relied on for these lifetime benefits was truly “unusual” or shocking in any way—these events are part and parcel of the work of first-responders in many of our nation’s municipal areas. Our concern about this published ruling is the long line of other paramedics, police officers, coroner’s aides and firefighters across the City of Chicago and all the United States who see such rulings and are more than happy to sign up by claiming unverifiable and subjective maladies, terrors and other issues to demand the same lifetime tax-free largesse. What is a better deal than getting paid in full with great benefits and not have to ever work? When does it end? Who is going to handle dead bodies and not be able to make such claims?

Plaintiff Siwinski, appealed from an order of the Circuit Court of Cook County which confirmed a decision of the Retirement Board of the Firemen's Annuity and Benefit Fund of the City of Chicago (Board) denying her a line-of-duty disability pension. The Appellate Court, First District, reversed to award benefits. The Court’s reversal was based on a decision the Board’s findings were against the “manifest weight of the evidence.” Siwinski v. Ret. Bd. of Firemen's Annuity & Benefit Fund of City of Chicago. With respect to the august members of the Court, we don’t agree.

In brief, the following facts were presented during the Board's initial hearing. Ms. Siwinski began working as a paramedic for CFD in 2008. You may note her tenure ended six years later. Two years after starting work, she and another paramedic Dan Kelly responded to a call involving injured firefighters. The body of a firefighter she indicated she “recognized” was placed on her stretcher. She transported nonresponsive individuals previously without being affected, but she asserted she was mentally and emotionally affected by this particular transport noting she was not “prepared” to transport a person she knew, things turned to a blur, and she had a feeling the fellow officer could have been her. She later attended the officer’s funeral. Subsequently, she claimed she became anxious whenever the firehouse alarm sounded and while on calls, withdrew from personal relationships, and developed problems in her romantic life. She experienced what she claimed was a “near syncopal” episode (she claimed she almost fainted, whatever that means) while on the job and went on leave for “non-duty illness.” Doctors related the syncope or “almost-fainting” to anxiety at work; nonetheless, she returned.

In a later episode, Siwinski dispatched to the scene of a shooting where a large crowd gathered. When the paramedics confirmed the victim was dead, people in the crowd closed in, threw objects, shouted racial slurs, and threatened violence. Siwinski testified she was “frozen” and thought she would be killed. Not only was she not killed—it appears she wasn’t touched. She claimed the supposed after-effects of this controversial event lasted several weeks (which will turn into years, if you keep reading), but she claimed she did not tell anyone due to her opinion there is a stigma related to any first responder having such feelings. In avoidance, she claimed she enrolled in college courses but soon began failing. Her romantic relationship ended, and she claimed she was “losing all control,” whatever that means. She claims she stopped cleaning and cooking, showered less frequently, struggled to leave bed, and, despite her asserted ennui and poor personal hygiene, developed an aggressive shopping addiction. We are sorry to indicate we don’t consider those complaints consistent—did every annoyance of daily life relate to this raucous crowd? Did she forget to water her houseplants because of the crowd?

Five years after starting work for the City as a paramedic, in June 2013, Siwinski transitioned to work as a driver or divisional aide to Assistant Deputy Chief O'Connell. This work took her out of the field with duties including scheduling, processing paperwork, and managing disciplinary and training files. This is precisely what we feel should be done with emergency personnel who don’t do mentally well. Take them out of the need to handle dead bodies. That change in work didn’t make any difference to this very liberal Appellate Court.

The last reported “incident” was in November 2013 when Siwinski was dispatched to a hospital to meet with an ambulance crew that transported a firefighter Claimant asserted she “knew” who shot himself in the head—you may note she didn’t transport this other firefighter, she talked to crew that did. After that discussion, she claimed she began intentionally cutting herself when therapy and medication reportedly “failed.” After experiencing what she claimed were nightmares, anxiety, and depression, she reported these issues to her Chief and went out on extended medical leave. Please note the driving force behind this extended leave was simply a discussion with a crew that handled the unfortunate passing of another firefighter—Claimant didn’t handle this dead person and from the record, this wasn’t her best friend, it was someone she knew.

Siwinski was diagnosed by a social worker with Major Depressive Disorder and Post-Traumatic Stress Disorder (PTSD) in February 2014. We don’t consider social workers to be psych experts—they are simply social workers. Claimant attended inpatient and outpatient programs and eventually began meeting with the social worker and asserted PTSD specialist, Gilligan. If you keep reading, the “treatment” didn’t do much for her. She claimed to be suffering from hypervigilance (whatever that might be), isolation, intrusive thoughts, and nightmares as of the date of hearing—with respect to this worker who was working as a driver/aide at the time, it is hard to imagine how one conversation could completely shock and disable her and cause all these asserted issues. She also claimed ambulance lights and wearing a uniform somehow triggered her to commit self-injury.

Siwinski admitted she was able to work as a divisional aide from June 2013 through January 2014 and she had personal and family histories of depression which she did not disclose on her application to work as a paramedic for CFD. Her explanations included a lack of awareness of these histories at the time of application, a misunderstanding of “medical problems” as inquired, and her claim she had a lack of any depressive symptomology since high school.

The Chicago Retirement Board produced a treatment record which noted Siwinski did not like her job and did not want to go back but wanted to remain in the position to meet pension eligibility. Her explanations included her dislike for the position was “a one-time thought,” and she had a true desire to work as a paramedic for at least ten years. She testified she was not accruing pension time while on leave and wanted to return to work as soon as possible.

Gilligan testified he had fifteen years of experience as a social worker with PTSD and causally connected Siwinski’s PTSD to her work. He justified her unquestioned delay in reporting of symptoms, calling it “a common temporary coping mechanism for individuals with PTSD.” Additionally, he claimed PTSD symptoms usually take six months to manifest and Claimant working as a divisional aide and driver somehow “worsened” the symptoms. The Appellate Court ruling doesn’t outline this asserted mechanism of increased psych issues.

In its case-in-chief, the Board called psychiatrist Dr. Cathrine Frank and physician Dr. George Motto. While Dr. Frank diagnosed Siwinski with PTSD with delayed expression and mild recurrent Major Depressive Disorder, Dr. Motto did not feel a diagnosis of PTSD was appropriate. Dr. Frank noted individuals with a history of Major Depressive Disorder may be more at-risk for developing PTSD. After explaining the differences between the two conditions, Dr. Frank opined Siwinski suffered from Major Depressive Disorder prior to joining CFD. Nonetheless, Dr. Frank noted Siwinski did not have PTSD until she was exposed to work related “trauma.” Dr. Frank noted PTSD sometimes presents well after trauma. She opined Siwinski’s PTSD precluded her from further work as a paramedic, even though Claimant was no longer a paramedic when she left her job.

Based on the above, the Board issued a unanimous decision denying Siwinski’s line-of-duty disability pension. They based their decision on an unsupported diagnosis of PTSD noting (1) delay in symptom reporting; (2) underlying incidents being common to paramedic work; (3) a PTSD diagnosis which relied on lack of verification for self-reported symptomology; and (4) lack of credibility considering Siwinski’s explanations during cross examination, lack of initial reporting, and the indication of possible secondary gain motivation.

The claim went back and forth between the Circuit Court and the Retirement Board—the denial remained. Her appeal to the IL Appellate Court followed. Though Siwinski argued the appeal involved both questions of law and fact, the Appellate Court decided all issues were questions of fact, to which the manifest weight standard ought to be applied.

The IL Appellate Court found Siwinski experienced traumatic situations while on duty as a paramedic in December 2010, when she carried the stretcher holding the body of the firefighter she knew, and in October 2012, when she felt she was threatened by the crowd on the scene of the shooting. The Court found her credible in her testimony that she became hypervigilant, felt anxiety from hearing the firehouse alarm and while on calls, and withdrew from relationships. They considered her hospitalization from her almost-syncopal episode and her struggles with cleaning, cooking, showering, and leaving bed in the morning as well as her self-mutilation and nightmares, anxiety, and depression.

The IL Appellate Court found the testimony of Gillian, the therapist, and Dr. Frank, the psychiatrist more credible than the opinions of Dr. Motto noting Dr. Frank’s opinions that Petitioner’s PTSD was triggered by stimuli specifically connected to her job as a paramedic and the exposure to same restricted her from working in any position for the CFD. Please note our respectful view the finding one side of a claim “more credible” for an appellate ruling doesn’t match the “manifest weight” standard. Because the Court found the manifest weight of the evidence showed what they asserted Siwinski’s PTSD diagnosis arose out of an act or acts of duty while working for CFD, and as a result, was disabled from working in any capacity there, it reversed the decision of the Board and remanded the matter the Circuit Court to determine appropriate fees and costs and order the Board to award retroactive benefits.

PTSD Decisions From IL WC

As our workers’ compensation regulars may be aware, Pathfinder v. IWCC and its subsequent line of case law instruct us that a claimant of work disability benefits must (1) suffer sudden, severe emotional shock, (2) traceable to definite time and place and to readily perceivable cause, (3) which produces psychological disability to recover workers compensation benefits even though no physical trauma or injury was sustained. While we understand this standard differs from that applied by the IL Appellate Court above due to the alternate standard applied to first responders in an award of disability pension, we could foresee arguments against the “sudden” arm of the Pathfinder standard when a court considers Dr. Frank’s and James Gillian’s opinions regarding the onset of PTSD as presenting well after trauma or taking six months to manifest.

We have defenses to any such arguments which include distinguishing this case law and proving any lack of immediate or emergent care or relation of any symptomology to work by either a claimant or their treater. For our clients and potential clients, if you want help handling and defending PTSD and other challenging psych claims, send a reply.

We appreciate your thoughts and comments. Please post them on our award-winning blog. This article was researched and written by Lindsay R. Vanderford, J.D. and Gene Keefe, J.D. Lindsay can be reached with any questions related to workers’ compensation defense and employment law defense at lvanderford@keefe-law.com.

Synopsis: Tennessee Supreme Court Rules Employer Had No Duty To Use AED To Assist Employee In Need Of Cardiac Care—Not Sure If This Would Impact Your State/Work Sites But Important News for Safety/Risk Folks

Editor’s comment: The Tennessee Supreme Court ruled an employer is not liable for workers’ compensation benefits for not using an available automated external defibrillator (AED) to assist an employee who suffered a non-work related medical emergency. An AED is a medical device that delivers an electric shock to the heart to restore a normal heart rhythm after the heart suddenly stops beating or starts beating irregularly. Tennessee has statutes that encourage businesses to acquire AEDs and provide immunity from civil liability under certain conditions. Please note the application and use of an AED doesn’t guarantee positive results and it is possible to cause harm in normal use, particularly by amateurs not used to these devices. I consider AED’s a “last-chance” effort that everyone has to hope turns out well, without any guarantees.

Claimant Katherine D. Chaney sued her employer, Team Technologies, Inc., for workers’ compensation benefits in the Circuit Court. Ms. Chaney collapsed at work, presumably due to a heart problem unrelated to her employment. Emergency medical first-responders were called to provide medical care. Her employer had an AED, but did not use it to assist Ms. Chaney. Although the medical first-responders were able to revive Chaney, she suffered a permanent brain injury caused by a lack of oxygen to her brain. She brought the WC claim for medical, lost time and impairment/permanent disability benefits.

Her employer Team Technologies asked the trial court to dismiss Ms. Chaney’s claim, mainly asserting her injury did not arise out of her employment and, as her employer, Team Technologies was not required to use its AED. Under Tennessee Workers’ Compensation Law, Ms. Chaney had to show her injury arose out of and in the course of her employment. Ms. Chaney argued her injury arose out of her employment because her injury was caused by Team Technologies’ failure to rapidly implement its AED under the “emergency rule.” Under this rule, an employer can be liable for workers’ compensation benefits for an employee’s non-work related injury if the employer fails to provide medical assistance to an employee in urgent need of medical care. Ms. Chaney argued under this rule, her employer was required to take out and apply the AED to assist her while she was in obvious distress.

The trial court denied Team Technologies’ request to dismiss the case. The TN Supreme Court granted Team Technologies’ request for an interlocutory appeal to decide whether an employer can be liable for workers’ compensation benefits when it has acquired an AED but does not apply it to assist an employee in need of emergency care.

After reviewing applicable statutes and case law in Tennessee and other jurisdictions, the Supreme Court restated the emergency rule to clarify an employer can be liable for workers’ compensation benefits when

the employer fails to provide reasonable (not any and all) medical assistance to an employee who becomes helpless at work because of illness or other cause not related to the job;
the employee needs medical assistance to prevent further injury;
the employer knows of the employee’s helplessness; and
the employer can provide reasonable medical assistance but does not do so.

The TN Supreme Court applied this restated rule and held that Chaney’s claim did not arise out of her employment with Team Technologies. First, the Supreme Court ruled that Team Technologies provided reasonable medical assistance to Chaney by summoning emergency medical first-responders. Second, the Supreme Court held under Tennessee statutes and case law, Team Technologies had no obligation to use its AED to assist Chaney. The goal of Tennessee’s AED statutes is to make AEDs more available, but these statutes do not require businesses to acquire or use AEDs.

In a previous case involving the use of an AED, the TN Supreme Court ruled a business that acquires an AED does not have to use it to assist a patron with a medical emergency. This ruling is consistent with the law in other states and the intent of Tennessee’s AED statutes. This same reasoning applies to employers who are encouraged to acquire AEDs, but are not liable to employees for not using the AEDs. The Supreme Court, in a unanimous opinion authored by TN Justice Sharon G. Lee, reversed the trial court and sent the case back to the trial court for dismissal.

We appreciate your thoughts and comments. Please post them on our award-winning blog.

Synopsis: Join KCB&A with the IL State Chamber for the IL WC Workshop on April 2, 2019 in Naperville. The link to register is: http://events.constantcontact.com/register/event?llr=omjkt4dab&oeidk=a07eg2i2618bf7c6629

Synopsis: Illinois WC Rates Jump Again—even with 313 residents leaving the state on average PER DAY, there was a jump in the Statewide AWW and Your existing PPD Reserves May Need To Be UPDATED RETROACTIVELY(!).

To any of our readers and/or fans, Send a Reply to Get a Free Copy of Shawn R. Biery’s Updated IL WC Rate-Sheet!

Editor’s comment: There continues to be an upward spiral of IL WC rates. Please don’t shoot the messenger for telling you how to get them right.

As mentioned before, twice every year, starting in the 1980’s, the IL WC Act provides a formula which effectively insures no matter how poor the IL economy is doing, your IL WC rates keep climbing.

We caution our readers to pay attention to the fact the IL WC statutory maximum PPD rate is now $826.79 (up from $790.64—a $36 increase when the last increase was only $15!!!).

When it was published, this PPD Max rate changed retroactively from July 1, 2018 to present. If you reserved a claim based on the prior rate for the period from July 1 to right now, your reserves are wrong.

If you have a claim with a date of loss after July 2017 and a max PPD rate, you need to take a look and see if the new maximum PPD rate applies.

The current TTD weekly maximum has risen to $1,506.81.

An IL worker has to make over $2,260.22 per week or $117,531.18 per year to hit the new IL WC maximum TTD rate.

The new IL WC minimum death or T&P rate also went up.

The IL WC minimum death benefit is 25 years of compensation or $565.06 per week x 52 weeks in a year x 25 years equaling a staggering $734,578.00! Yes, if Claimant makes $100 a week in a part-time job and dies in a work-related accident, the benefit is over $734K.

The new maximum IL WC death benefit is $1,506.81 times 52 weeks times 25 years or a lofty $1,958,853.00 plus burial benefits of $8K.

On top of this massive benefit, Illinois employers/governments have to contribute to a fund to pay COLA increases under the Rate Adjustment Fund that may double that already-high benefit, depending on the CPI.

The best way to make sense of all of this is to get Shawn Biery’s colorful, updated and easy-to-understand IL WC Rate Sheet.

If you want it, simply email Marissa at mpatel@keefe-law.com and include your mailing address if you would like to be mailed a laminated copy & you can also copy Shawn at sbiery@keefe-law.com with any questions, and his great team will get a copy routed to you before rates rise again.

Shawn remains your go-to defense source on any issue relating to IL WC rates!

Synopsis: Get your handy and updated 2019 Indiana Rate Chart Here. Research and reporting by Kevin Boyle, J.D., KCB&A’s Indiana WC defense team leader and Gene Keefe, J.D.

Editor’s comment: A new year, and our new 2019 Indiana WC Rate Chart is available. You can find it on our website, or if you’d like a laminated hard copy, please email Kevin and he’ll mail you as many as you and your staff need. Happy New Year!

Kevin Boyle, Esq., Keefe, Campbell, Biery & Assocs., LLC

885 South College Mall Rd. #222

Bloomington, IN 47401

Direct: 312.662.9899

Alternate: 812.369.7182

Email: kboyle@keefe-law.com

KCBA Blog

2-11-2019; "I See Dead People"--How Should Gov'ts Deal With First Responder PTSD?; TN Supreme Court Rules Employer Had No Duty To Use AED To Assist Employee and more