LAW OFFICES of THOMAS W. DUDA

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1 Thomas W. Duda, Esq. Craig Millman, Esq. Joseph V. Prieto, Esq. Of Counsel: John B. Schwartz & Associates Paralegal: Christina Kately Administrative Assistant: Michael Rick Merrill LAW OFFICES of THOMAS W. DUDA 330 West Colfax Street Palatine, Illinois (847) Facsimile (847) Southern Illinois Office: 929 South 2 nd Street Springfield, Illinois Available by appointment at: 55 West Monroe Street Suite 3600 Chicago, Illinois Lake County Bar Employment Law Committee Seminar Vernon Hills Municipal Golf Course Clubhouse 291 Evergreen Drive Vernon Hills, Illinois New Developments in Public Sector Disability Law I. Overview of Relevant Statutes. A. Illinois Workers Compensation Act 820 ILCS 305/1 et seq. / Illinois Workers Occupational Diseases Act 820 ILCS 310/1 et seq. B. Workers compensation is a no fault substitute for damages in a common law tort lawsuit. C. Accident v. Disease. 1. An accident is an unforeseen event that occurs at a specific date, time and place. D. Benefits are paid without fault for an injury or disease that arises out of and in the course of employment. E. The amount of weekly benefits are capped. The amount of weekly temporary total disability benefits ( TTD ) are paid to all workers at a rate of 2/3 of the employees gross average weekly wage from all employment sources. F. TTD 2/3 x AWW applies to all workers, not just firefighters and police officers. CH. 4 Page 1

2 II. Public Employee Disability Act ( PEDA ) 5 ILCS 345/1 et seq. A. Public Safety Officers by statute receive a bonus ; they receive 100% of gross average weekly wage for 12 months. 1. Special benefit for firefighters, police officers and correctional officers. 2. Recognition of the special dangers faced by Public Safety Officers. 3. PEDA covers any injury in the line-of-duty which causes him to be unable to perform his duties, B. All emplyees are covered by workers compensation; only firefighters, police officers and correctional officers are covered by PEDA. C. Limited to twelve (12) months not calendar months. Lost time can be intermittent. D. PEDA benefits cannot be paid to an eligible employee if he/she is employed in any other manner, with or without monetary compensation. 5 ILCS 345/1(d). E. The Public Safety Officer receives all benefits as if he/she were fully employed, including health insurance. 5 ILCS 345/1(b). III. Public Safety Employee Benefits Act ( PSEBA ) 820 ILCS 320/1 et seq. A. A municipality employing Public Safety Officers must continue paying health insurance premiums on basic group insurance coverage for life of the injured employee, his/her spouse and minor children for certain injuries: 1. Catastrophic injury an injury that causes permanent disability. Krohe v. City of Bloomington, 204 Ill. 2d 392, 789 N.E.2d 1211 (2003). 2. PSEBA benefits payable upon a decision of permanent disability. Nowak v. City of County Club Hills, 2011 IL (2011). But see Phalin v. McHenry County Sheriff s Department, 381 Ill. App. 3d 185, 866 N.E.2d 448 (1 ST Dist. 2008) appeal denied 229 Ill. 2d A catastrophic injury has to occur under the following circumstances: a. As the result of the Officer s response to fresh pursuit; b. The Officer or Firefighters response to what is reasonably believed to be an emergency; c. An unlawful act perpetrated by another; and CH. 4 Page 2

3 d. During the investigation of a criminal act. 4. Health insurance premium payments are payable for life but do not include premiums for supplemental coverage. Pyle v. City of Granite City, 2012 IL App (5th) (5 TH Dist. 2012). a. Employer responsible for basic Medicare premium payments but not supplemental insurance. b. Pyle, supra, has been misinterpreted as terminating employer responsibility at Medicare age. B. Determination of eligibility. 1. Home rule units municipality may adopt ordinance establishing an administrative procedure. a. Subject to obligation for collective bargaining; establish hearing procedure under Collective Bargaining Agreement ending in arbitration by an impartial third-party. 2. Non-home rule units declaratory judgment in Circuit Court. Gaffney v. Board of Trustees of the Orland Fire Protection District, 2012 IL (2012). C. An emergency is not limited to dire circumstances. D. Emergency means an event in which there is an urgent need for assistance or relief; an unforeseen combination of circumstances that calls for immediate action. It can include a sudden condition or state of affairs calling for immediate action. See Webster s Third New International Dictionary. IV. Catastrophic Injury Bremer v. City of Rockford, 2016 IL (2016). A. PSEBA benefits payable for disabilities under 40 ILCS 5/4-110 line-of-duty disability. B. PSEBA benefits are NOT PAYABLE for disabilities found under the occupational diseases section of the Pension Code. 40 ILCS 5/ But see, Phalin v. McHenry County Sheriff s Department, 381 Ill. App. 3d 185, 886 N.E.2d 448 (2 ND Dist. 2008). CH. 4 Page 3

4 V. Coordination of Benefits Under the Illinois Pension Code and the Public Safety Employee Benefits Act. A. Village of Vernon Hills v. Heelan, 2015 IL , 39 N.E.3d 937 (2015). B. Qualifications for payment of health insurance benefits under PSEBA. 1. Catastrophic injury. 2. In addition to a catastrophic injury, must establish one of the four (4) conditions listed in this outline at III, A, Must be an injury causing a permanent disability as defined in 40 ILCS 5/ Bremer, supra. 4. Findings of the Board of Trustees of local Pension Fund are binding on municipality if no Petition to Intervene is filed. VI. Mental-Mental Workers Compensation Cases for Public Safety Officers. A. Diaz v. Illinois Workers Compensation Commission, 2013 IL App (2d) WC, 989 N.E.2d 233 (2 ND Dist. 2013). 1. Police Officer suffered a sudden, severe emotional shock relating to a showdown in which a citizen was pointing a toy gun at Police Officers responding to a domestic call. 2. Strictly mental-mental case; no physical injury. B. Moran v. Illinois Workers Compensation Commission, 2016 IL App (1st) WC, 59 N.E.3d 934 (1 ST Dist. 2016). 1. Incident Commander suffered mental trauma ordering a subordinate into a fire resulting in the subordinate s death. Compare Chicago Transit Authority v. Illinois Workers Compensation Commission, 2013 IL App 1(st) WC, 989 N.E.2d 608 (1 ST Dist. 2013). VII. Collective Bargaining Developments Fair Share. A. Friedrichs v. California Teachers Association, 84 U.S.L.W. 4159, 194 L.Ed.2d 255, 136 S. Ct (2016). 1. Evenly divided court let stand the holding of the Nineth Circuit Court of Appeals that the fair share provisions of the union contract were not unconstitutional under the First Amendment or the due process clause of the Fourteenth Amendment with respect to public employees. CH. 4 Page 4

5 B. Abood v. Detroit Board of Education, 431 U.S. 209, 232, 52 L.Ed.2d 261, 97 S. Ct (1977). C. Legislative developments. Copies of the Power Point presentation can be obtained by ing Thomas W. Duda at the following address: The document will be attached to our reply. CH. 4 Page 5