by Ryan Morton (Fall 2018)

Public safety employees in Illinois rely on multiple safety nets in the event they contract an occupational disease, an illness or harmful condition arising directly from the workers’ employment exposure to hazardous conditions to which the public is not typically exposed. Depending on the circumstances, the Workers’ Compensation Act (820 ILCS 305/1 et seq.) (“WCA”), the Workers’ Occupational Diseases Act (820 ILCS 310/1 et seq.) (“WODA”), and the Illinois Pension Code (40 ILCS 5/1-101 et seq.) (the “Code”) all provide benefits to employees stricken with an occupational disease or injury. However, the qualifications and benefits differ among the three statutes.

One of the initial differences is the timeframe in which an employee must file a claim. Under the WCA, employees only have 45 days to notify their employer about an accident. That extends to 90 days for exposure to radiation. On the other hand, an employee can be compensated under WODA if a disabling disease develops within two years of the employee’s last exposure to the hazardous causes. The Code, however, sets no time limit, as long as the disease developed or manifested during a firefighter’s or police officer’s employment and the employee is still an “active” (not retired) employee. (See DiFalco v. Board of Trustees of the Firemen’s Pension Fund of the Wood Dale Fire Protection District, 122 Ill. 2d 22 (1988))

Under both the WCA and WODA, many medical conditions affecting firefighters, EMTs, and paramedics are automatically presumed to have been caused by the hazards of their occupation, directly or indirectly. (820 ILCS 305/6(f)) That means the employee would not have to prove entitlement to workers’ compensation, unless the presumption was challenged by an employer pointing to another cause. The conditions covered include bloodborne pathogens, heart conditions, and hearing loss. This presumption applies only to those employees who have been working in that capacity for at least five years when the claim is filed.

The Code is not as generous with its presumptions for occupational diseases. A firefighter with five years or more of creditable service is eligible for an occupational disease disability pension for heart disease, stroke, tuberculosis, and any disease of the lungs or respiratory tract. However, the employee must prove that the disease resulted from service as a firefighter, and that the employee is unable to perform his or her duties in the future. The cause of those conditions is not presumed. (40 ILCS 5/4-110.1)

However, the Code does include one rebuttable presumption for firefighters – for cancer, as long as other additional conditions are met. The cancer must develop or manifest while the firefighter is in active service, and the cancer must also be a type that may be caused by exposure to heat, radiation, or known carcinogens. If all those conditions are met, the pension board must presume the cancer arose as a result of firefighting, unless that presumption is successful rebutted. (40 ILCS 5/4-110.1)

Generally, police officers do not encounter the same unique occupational hazards that firefighters do, and as a result, occupational disease benefits rarely apply to them. Under the Code, however, police officers who work in a combined municipal police and fire department, and who regularly perform firefighting duties, are eligible for a disability pension under the same restrictions as firefighters. (40 ILCS 5/3-114.6) Police officers may also qualify for benefits if they suffer a heart attack or stroke, as long as it is the result of the performance and discharge of police duty. (40 ILCS 5/3-114.3)

The statutes also differ financially. Under the Code, an occupational disease disability pension is worth either 65% of the employee’s salary at the time the employee was removed from payroll or 100% of the employee’s pension upon retirement, whichever is greater. Under the WCA, the formula is more complicated, as the employee collects two-thirds of his or her average weekly earnings for a total disability. The WODA follows the same system but adds overtime earnings into the calculation.

Of course, a major difference are the types of payments available. The Code provides only one type of duty-disability pension, for employees who are unable to work because of their disability. Under the Code, it is “all or nothing.” The WCA and WODA, though, offer degrees of benefits. Temporary Partial Disability, Permanent Partial Disability, Temporary Total Disability, and Permanent Total Disability are all options depending on the severity of the injury or disease. Under workers’ compensation, claimants also can receive payment for medical expenses. If the occupational disease leads to death, all three statutes do provide for surviving spouses and minor children.

Although there are multiple avenues through which an employee can collect benefits, those options are not compounded. The Code provides that benefits payable under the Code must be reduced based on benefits available under the other statutes for the same disease or injury. (40 ILCS 5/3-114.5 and 40 ILCS 5/4-114.2) Importantly, only benefits from those other statutes are used to reduce – or offset — pension disability or survivor’s benefits. The costs of medical services, remedial treatment, and certain medical equipment recovered under the WCA are not subtracted from pension benefits.

Pension boards should also note the interplay between the WCA and the Code. If a disability pension is denied to a firefighter, the employee can still seek workers’ compensation, because the parties are different (the pension fund, versus the fire protection district or municipality), as are the benefits sought. (City of Chicago v. Illinois Workers’ Compensation Com’n, 2014 IL App (1st) 121507 WC) However, certain questions within those claims cannot be argued again if the issues are identical in both venues. For example, when the Workers’ Compensation Commission determined that a specific arrest caused a police officer’s injury, the pension board no longer needed to consider that issue, nor could it. (Village of Alsip v. Portincaso, 2017 IL App (1st) 153167) Since the issue had already been decided, it could not be relitigated. However, if there are significant issue that have not been considered previously, such as whether an injury occurred during an “act of duty,” then the claims are not precluded. (Demski v. Mundelein Police Pension Board, 358 Ill. App. 3d 499 (2nd Dist. 2005)

In summary, the provisions of Illinois’ various laws regarding disability compensation make it difficult to fully understand the concept, even for experienced pension board trustees.