Synopsis: New IL WC Ruling in Allen v. Hot Spot Affirms Idiopathic Defense to Fall Downs (and others??).
Editor’s comment: The IL WC Appellate Ruling in McAlister caused much commotion when a worker injured himself merely standing up at work. Lots of folks worried this ruling indicated similar defenses were at an end with our current Commission and reviewing courts.
Not so fast! Now the IL WC Bar is talking about Allen v. Hot Spot, 30 ILWCLB 210 (Ill. W.C. Comm. 2022).
This claim involved a worker who was opening a gambling room as part of her work. The claimant worked for Hot Spot as an attendant in a gambling room. Her job involved opening the business, setting up for the customers, cleaning, sweeping, carrying cases of soda and stocking coolers. What was moderately unusual is she testified she had preexisting health problems, including chronic kidney disease and a foot injury that caused her to walk with a cane.
On April 27, 2021, the claimant arrived at work. She testified that she entered the business, put her breakfast on the table, and walked over to the property alarm to turn it off. She further testified she was walking fast but was not in a hurry. She had 60 seconds from the time she entered to turn off the alarm. The claimant fell while walking to the alarm. She did not testify so as to identify a specific cause that led to the fall-down.
The IL Arbitrator denied benefits, finding Claimant failed to prove her fall at work arose out of and in the course of her employment. In so ruling, the Arbitrator explained that walking is a personal risk. Further, the claimant could not explain her fall or identify a cause. The Arbitrator ruled Claimant’s fall constituted an “idiopathic accident,” that could only be caused by something internal or inherent to the claimant. An idiopathic accident is only related to employment if she can show her work created a hazard.
Here, the claimant did not testify to any defect or that she was carrying any objects or unusually hurrying. Moreover, she clearly explained that she was not rushing, as she had enough time to calmly put her breakfast down and walk to the alarm. The claimant was walking and, for a reason unrelated to her employment or otherwise unknown, she fell. Accordingly, her fall was not compensable under the WCA.
Upon review, the IL WC Commission panel affirmed and adopted the decision of the Arbitrator. Regardless of the ruling in McAlister, we feel Illinois will not turn into a “positional risk” state—if you aren’t sure what that means, send a reply.
We are not aware if the matter is pending on further appeal. If we get further news, we will report.
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Synopsis: Firefighter With Rare Kidney Cancer Establishes Condition as Occupational Disease That I Feel is Causally Related to His Job Title and Not His Actual Work.
Editor’s comment: The Illinois Appellate Court, WC Division upheld an award of benefits to a firefighter for kidney cancer, finding he established an occupational disease by a preponderance of the evidence. Please note this ruling has a WC reserve value well into the millions.
Claimant Wood worked as a firefighter for a city in Missouri before moving to Illinois and becoming a firefighter for the City of Springfield. In July 2013, Wood sought medical treatment for abdominal pain and fever. He was diagnosed with diverticulitis.
After undergoing a computed tomography scan, Wood saw a Dr. Sandercock. The scan revealed kidney cancer. A Dr. Lieber performed surgery to remove the upper portion of the kidney in September 2013. Wood was released to full duty the next month.
Wood filed a workers’ compensation claim, and an Arbitrator found that his cancer was compensable. The arbitrator noted that Wood was a firefighter for about 16 years and was entitled to a statutory presumption that his cancer had been caused by his employment. The Arbitrator didn’t make any findings as to how many fires Claimant Wood fought.
Please note my respectful opinion that all “firefighters” don’t typically or routinely fight fires. I would say, statistically, a very small part of any firefighter’s work involves dealing with live fires. And to some extent, the term “firefighter” is therefore misleading. However, when such workers go to the IWCC, everyone focuses on the word ‘firefighting,’ as if they are involved in heavy smoke and exposure to carcinogens all day, every day. Please also remember firefighters don’t typically encounter heavy smoke—they wear breathers. I have yet to see any defense attorney actually check records to confirm how many live fires a given firefighter dealt with in a year or five years or their entire career.
In this claim, while the Arbitrator acknowledged testimony from a Dr. Eggener that the type of cancer Wood had was rare and had a completely different etiology compared to more common types, the arbitrator said Dr. Eggener’s opinion that there was no evidence in the medical literature or elsewhere to suggest that the development of this kind of kidney cancer is associated with being a firefighter was unsupported by the credible evidence.
On appeal, the Workers’ Compensation Commission agreed with the Arbitrator’s ultimate determination but differed in analysis. The Commission panel found that the city successfully rebutted the presumption by submitting evidence of an alternative cause of Wood’s kidney cancer in form of Eggener’s opinion, but that Wood still proved by a preponderance of the evidence that he suffered an occupational disease based on a Dr. Orris’ testimony that it was more likely than not that Wood’s years of “firefighting” contributed to the development of cancer. Again, please note my view the Commission panel appears to assume anyone with the title “firefighter” has to fight fires.
A circuit court judge affirmed the Commission’s decision.
The Illinois Appellate Court said the Commission’s finding of compensability was not against the manifest weight of the evidence. They noted while Wood offered no evidence to causally connect his specific form of kidney cancer to his work as a firefighter, the reviewing court said neither Drs. Eggener and Orris were provided with the medical records pertaining to the specific form of kidney cancer that Wood had, and neither made any distinction among different forms of kidney cancer.
The experts agreed smoking, obesity, dietary habits and hypertension are risk factors for the development of kidney cancer, and none of these applied to Wood, the court added.
“The biggest issue with Dr. Eggener’s report is that he sought to find an absolute causation explanation where none was required,” the court said. “Orris reviewed the same literature and concluded that the studies established a connection between firefighting and the development of kidney cancer.”
With respect to our Appellate Court’s august members, that sentence indicates to me they found causation related to Claimant’s job title without any real indication of what he was exposed to in his actual work. To read the court’s decision in City of Springfield v. IWCC, No. 4-21-0604WC, 09/15/2022, unpublished, click here.
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Synopsis: Rich Hannigan, RIP.
Editor’s comment: The IL WC Industry is saddened to hear of the passing of Richard “Rich” Hannigan. I am fairly sure Attorney Hannigan dates back to the days of working with the venerable Jack Cunningham and Arbitrator Angelo Caliendo. Rich practiced workers’ compensation law since 1973. From 1973 to 1991, he represented both employers and injured employees before the good ole Illinois Industrial Commission. After 1991, his practice was limited to serving the injured worker. Mr. Hannigan received his Bachelor’s from the University of Dayton in 1970, and his Juris Doctor from what used to be known as the John Marshall Law School in 1973.
Rich was a member of the Illinois Trial Lawyers Association, the Illinois State Bar Association, the Workers Compensation Lawyers Association, Chicago Bar Association and Lake County Bar Association. He was also a member of the Arizona State Bar since 1975 and was a member of the Arizona Bar Association’s Workers’ Compensation Section.
Rich was a member of the Illinois State Bar Association’s Workers’ Compensation Section Council from 1992 through 2001 and 2002 to date. In 1998 he was appointed Vice-Chairman of the Workers’ Compensation Section. In 1999 he was appointed Chairman of the Illinois State Bar Association Workers’ Compensation Section Council. Richard Hannigan served as president of the Workers’ Compensation Lawyers Association in 1992, vice president in 1991, and secretary from 1989 to 1990 and on the Workers’ Compensation Lawyers Association Board of Managers from 1984 to 1988 and 1983 to 1985.
Rich Hannigan was editor of the Illinois Bar Association Workers’ Compensation Newsletter since 1998. As editor of the newsletter, he was responsible for a minimum of four newsletters per year. I considered him a “competitor” with the highest and greatest respect. His newsletter was used as a teaching tool for attorneys, risk managers and adjusters handling workers compensation. He was honored by the Illinois Bar Association with an award for his commitment to the Workers’ Compensation Newsletter.
I believe I speak on behalf of the entire IL WC industry to confirm he was a great and wonderful man and strong advocate for his many clients. Speaking for myself, I will always miss this great man and remain sad about his passing.
Synopsis: Governor Pritzker Appoints Ms. Efi James as IL WC Arbitrator.
Editor’s comment: Illinois Gov. J.B. Pritzker appointed Efi James to serve as an arbitrator on the Illinois Workers’ Compensation Commission starting March 1, 2023. Ms. James was with the Chicago area law firm of Karchmar & Stone.
She has appeared and argued cases at arbitration before the Illinois Workers’ Compensation Commission, in circuit court and at the appellate court level.
James received her bachelor’s degree from De Paul University and her law degree from what used to be called the John Marshall Law School. Upon admission to the bar, she worked in the Criminal Prosecutions Bureau of the Cook County State’s Attorney’s Office until 2007. During her time there, Efi worked in Appeals, Traffic Court, Misdemeanor Court, Domestic Violence Court, Preliminary Hearings, Felony Review and was assigned to the Jury Room.
She has participated in more than 500 bench trials and has seen 18 jury trials to verdict. She has been honored for her advocacy work on behalf of victims of Domestic Violence and has worked as an adjunct professor at Moraine Valley Community College and Kaplan University. Since then, Efi has concentrated her practice in the area of worker’s compensation and Personal Injury.
She has appeared and tried numerous cases at the Arbitration level before the Illinois Workers’ Compensation Commission and argued in Circuit Court and at the Appellate Court levels on behalf of her clients. In the Appellate Court, Efi successfully argued the case of Cox. V. Illinois Workers’ Compensation Commission, 406 Ill. App. 3d 541 (Ill. App. Ct. 2010) which was instrumental in changing the law applicable to traveling employees.
Ms. James is a past chair of the Chicago Bar Association Workers’ Compensation Committee, has acted as moderator for the Workers’ Compensation Lawyers Association Seminar on Current Issues in Illinois Workers’ Compensation and is a member of the Illinois State Bar Association.
New Arbitrator James is bi-lingual and fluent in Greek.