Amendment Prohibiting Retaliation Under ODRISA Heads to Governor’s Desk
by Catherine R. Locallo
Do Illinois Attorneys Have a Duty To Assess Their Clients' Mental Competence?
by Terrence P. McAvoy & Katherine G. Schnake
Our January 2025 spotlight welcomes the new IICLE® Chair of the Board of Directors, Hal R. Morris. Morris was elected to the IICLE® Board of Directors in 2014 and has served in the secretary, treasurer, and vice chair roles. In addition to his board duties, Morris has also dedicated his time to IICLE® as a contributor and speaker, authoring several chapters on REAL ESTATE LITIGATION (IICLE®, 2024) and numerous articles for the Institutle's Ethics & Professional Responsibility FLASHPOINTS™.
Read Full SpotlightFLASHPOINTS™ is a complimentary monthly newsletter featuring current legal updates and trending topics in various practice areas. IICLE®, a 501(c)(3) non-profit organization, produces materials like these to support the career growth of Illinois legal professionals. Thank you to our contributors, sponsors, and readers. For information about becoming an IICLE® contributor, please find resources located here.
In People v. Roa, 2024 IL App (4th) 241051, the Fourth District Appellate Court held that the defendant’s right to a trial within 90 days of his pretrial detainment was not violated because the defendant’s continuance tolled the 90-day time.
In Roa, the defendant was charged with predatory criminal sexual assault of a child. The state’s petition to deny pretrial release was granted on May 2, 2024. On May 23, the defendant’s public defender asked for a trial on July 15 and a June 6 pretrial date. 2024 IL App (4th) 241051 at ¶¶3 – 4.
On June 6, one of the assigned public defenders told the trial court that one of them might have a conflict and agreed to continue the case to June 17. On June 17, a new public defender told the trial court that the public defenders were still collecting information about the case and asked for a July 1 date. The case was continued by agreement. 2024 IL App (4th) 241051 at ¶¶5 – 7.
On July 1, the state was granted a trial continuance, and the trial was reset for August 5, with a pretrial date of July 18. The defendant asserted his right to a speedy trial. On July 18, the case was continued by agreement until July 29 for a pretrial conference. 2024 IL App (4th) 241051 at ¶¶8 – 9.
On July 19, the defense asked for the defendant to be released on July 31 under 725 ILCS 5/110-6.1(i) because he would have been detained for 90 days pursuant to the court’s May 2 order denying pretrial release. The trial court denied the motion. 2024 IL App (4th) 241051 at ¶¶10, 16.
On appeal, the appellate court disagreed with the defendant’s argument that all the days following his detainment on May 2 should have been attributed to the state. 2024 IL App (4th) 241051 at ¶24. The appellate court noted that part of §110-6.1(i) states that the trial court shall omit from the 90-day calculation any period of delay resulting from a continuance granted at the request of the defendant and any period of delay resulting from a continuance granted at the request of the state with good cause shown pursuant to the speedy-trial statute, 725 ILCS 5/103-5. 2024 IL App (4th) 241051 at ¶24.
The appellate court also emphasized that the statute does not say a court shall not count any period of delay resulting from a continuance of only the defendant’s trial when computing the 90-day period. 2024 IL App (4th) 241051 at ¶24.
The appellate court adopted the Illinois Supreme Court’s speedy-trial precedent in People v. Cross, 2022 IL 127907, 215 N.E.3d 953, 465 Ill.Dec. 748, and concluded that
[b]ased on the plain language of section 110-6.1(i) of the Code (725 ILCS 5/110-6.1(i) (West 2022)) and our supreme court’s reasoning in Cross, we see no reason why a continuance requested by a defendant subject to pretrial detention would not toll the 90-day period to bring the defendant to trial, regardless of whether the continuance caused or contributed to a postponement of the date set for the defendant’s trial when the continuance was granted.2024 IL App (4th) 241051 at ¶26.
The appellate court noted that the case was continued several times by agreement. The appellate court specifically pointed out that the defense asked for a continuance on June 17 until July 1 and therefore that period could not be included in the 90-day calculation. 2024 IL App (4th) 241051 at ¶¶27 – 28. The appellate court declined to review all the other continuances because the June 17 – July 1 period was already excluded from the calculation, and it therefore affirmed the trial court’s denial of pretrial release. 2024 IL App (4th) 241051 at ¶¶28 – 29.
For more information about criminal law, see CRIMINAL RECORDS: EXPUNGEMENT AND OTHER RELIEF (IICLE®, 2024). Online Library subscribers can view it for free by clicking here. If you don’t currently subscribe to the Online Library, visit www.iicle.com/subscriptions.
The One Day Rest in Seven Act (ODRISA), 820 ILCS 140/0.01, et seq., requires employers to provide employees with a minimum of 24 hours of rest within every consecutive seven-day period. The law allows employers to secure permits from the Illinois Department of Labor for employees to work on the seventh day, provided that the employees have voluntarily agreed to work and are paid at the applicable overtime rate if employees work over 40 hours in that week. Under ODRISA, employees must also be given a meal period of at least 20 minutes for every 7.5-hour shift beginning no later than 5 hours after the start of the shift, with an additional 20-minute meal period if working a 12-hour shift or longer. Reasonable restroom breaks must also be provided.
Senate Bill 3180 amends ODRISA to prohibit retaliation. It passed both Houses on January 5, 2025, and if signed into law, it would be a violation of ODRISA for an employer, agent, or officer to take any adverse action or otherwise discriminate against an employee for
Senate Bill 3180 further provides that if an employer, agent, or officer unlawfully retaliates against an employee, the employee is entitled to all appropriate legal and equitable relief through a claim filed with the Illinois Department of Labor.
In view of this anticipated change in the law, employers should review employee work, meal, and break schedules to ensure compliance with ODRISA, and ensure that supervisors are trained accordingly to avoid potential adverse action or discrimination claims.
For more information about employment and labor law, see CAUSES OF ACTION: EMPLOYMENT ACTIONS (IICLE®, 2024). Online Library subscribers can view it for free by clicking here. If you don’t currently subscribe to the Online Library, visit www.iicle.com/subscriptions.
Brief Summary
In Carey v. Hartz, 2024 IL App (1st) 231323, a legal malpractice action arising out of revisions to a client’s estate plan, the appellate court considered whether an attorney has a duty to evaluate a client’s mental capacity and, if so, whether the plaintiff alleged sufficient facts to show that the defendants (a law firm and its attorneys) were aware of their client’s disability at the time they provided legal services.
The appellate court reversed the trial court’s dismissal order, explaining that while there is no general duty for an attorney to evaluate a client’s mental competence, the plaintiff alleged sufficient facts to support a claim that the defendants were on notice of their client’s disability at the time they rendered services and failed to take appropriate steps to ensure she was competent to modify her estate plan.
Complete Summary
Before her death, Alyce K. Newman (Newman) retained the defendants to assist her in modifying her estate plan to benefit one of her two sons. Upon discovering the modifications, Newman’s other son obtained limited guardianship of her estate and person, alleging that she was suffering from dementia, and unwound the modifications.
He then filed a legal malpractice action against the defendants on his mother’s behalf, alleging that they should have evaluated her mental capacity prior to effectuating the changes to the estate plan. The trial court granted the defendants’ motion and dismissed the complaint, finding that:
(1) there is no duty for an attorney to evaluate the mental capacity of their client; and
(2) even if there were, the complaint would not have sufficiently alleged that the defendants were aware of Newman’s disability at the time they rendered services. 2024 IL App (1st) 231323 ¶1.
The plaintiff appealed, and the appellate court reversed.
Newman had two adult sons, P. Andre Katz (Andre) and Leonard Katz (Leonard). In October 2016, Newman prepared an estate plan that listed both sons as beneficiaries. 2024 IL App (1st) 231323 ¶5. In the spring of 2017, however, Leonard contacted the defendants about modifying Newman’s estate plan, and shortly thereafter, they met with the defendants. Id.
The plaintiff alleged, inter alia, that: “At the time [Newman] met with Defendants, [she] was already suffering the effects of dementia. Specifically, [Newman] lacked the ability to recall past financial transactions made by her, including the writing of specific checks. Further, [Newman] lacked the ability to recall prior medical procedures, what medication she was taking, or even the name of her primary care physician.” 2024 IL App (1st) 231323 ¶5.
Newman and Leonard met with the defendants for a second meeting, at which time Newman “again displayed signs of dementia,” and she also revealed that she had already given Leonard $660,000 in the past seven months. 2024 IL App (1st) 231323 ¶7.
The defendants then prepared modifications to Newman’s estate plan, including provisions favorable to Leonard, despite his “inability to manage his own finances in part due to his significant and long-standing gambling addiction.” 2024 IL App (1st) 231323 ¶8. Newman executed the modified estate plan documents on May 31, 2017, at the defendants’ office, where she was accompanied by Leonard, despite the fact that a number of open issues remained. 2024 IL App (1st) 231323 ¶9.
At that time, Newman “continued to show signs of her condition.” 2024 IL App (1st) 231323 ¶9. On June 9, 2017, Andre was appointed temporary guardian of Newman’s estate and person by the probate court. In the order appointing Andre as guardian, the probate court identified the “harm” necessitating the appointment as Leonard’s behavior, which clearly showed his undue influence over Newman. Newman was prohibited from, inter alia, “executing any estate planning documents … until testamentary capacity is authenticated before this court.” 2024 IL App (1st) 231323 ¶10.
Andre then contacted the defendants to notify them about the guardianship. The defendants called Newman’s home but spoke with Leonard. In July 2017, Newman paid the defendants for services provided through May 31, 2017, but they did not make any efforts to determine whether she had the capacity to execute the check. 2024 IL App (1st) 231323 ¶11.
After some motion practice and an earlier appeal, Newman passed away in early 2023. 2024 IL App (1st) 231323 ¶20. Carey was appointed independent executor, and he filed a second amended complaint against the defendants. Count I was for legal malpractice and alleged, inter alia, that the defendants “had reason to believe that [Newman] did not have the capacity to modify her estate [plan] and had a duty to evaluate the same.” Id.
The plaintiff alleged that the defendants were negligent in failing to adequately investigate Newman’s capacity to modify her estate plan and whether she was subject to Leonard’s undue influence. The plaintiff claimed that as a result, Newman’s estate was “required to incur hundreds of thousands in legal fees and other costs to unwind the illegal and ineffective modifications.” 2024 IL App (1st) 231323 ¶20. Count II was for unjust enrichment. Ultimately, the trial court granted the defendants’ motion to dismiss, and the plaintiff appealed.
The dismissal was based on the trial court’s finding that there is no duty for an attorney to assess their clients’ mental capacity, and even if there were, the plaintiff would have failed to allege that the defendants were on notice of Newman’s disability.
The appellate court initially noted that there is no Illinois law directly on point, making this a case of first impression. However, the plaintiff relied on Rule 1.14 of the Illinois Rules of Professional Conduct to argue that such a duty should be imposed on attorneys. Rule 1.14 concerns clients with diminished capacity and generally requires that “[w]hen a client’s capacity to make adequately considered decisions in connection with a representation is diminished,” the attorney should, as far as reasonably possible, “maintain a normal client-lawyer relationship with the client.” Rule 1.14(a).
When, however, the attorney “reasonably believes that the client has diminished capacity, is at risk of substantial physical, financial or other harm unless action is taken and cannot adequately act in the client’s own interest,” the attorney “may take reasonably necessary protective action,” including consulting with individuals or entities having the ability to take action to protect the client. Rule 1.14(b). The comments to Rule 1.14 further explain that “[i]n determining the extent of the client’s diminished capacity,” the lawyer should consider and balance certain factors relating to a client’s competence.
The plaintiff argued that Rule 1.14 supports a duty to assess a client’s capacity. However, the court did not find this argument persuasive because an attorney working with a client begins the relationship with the presumption that the client has testamentary capacity until proven otherwise.
The plaintiff’s position, by contrast, begins from the opposite perspective — namely, requiring the attorney to essentially make a finding of competence before embarking on representation. Such a position turns the presumption of competence on its head, making it something that needs to be affirmatively established instead of something that needs to be rebutted in appropriate circumstances.
The plaintiff also suggested that an affirmative duty to determine a client’s competence is supported by public policy, but the court disagreed. The court noted that although there is a public policy in favor of “vigilant protection” of the disabled, there is also a public policy in support of testamentary freedom. 2024 IL App (1st) 231323 ¶32.
Instead, the court concluded that here, there were well-pleaded facts alleging that Newman lacked the capacity to modify her estate plan at the time she engaged the defendants and that her diminished capacity would have been apparent upon any significant questioning. The court thus found that plaintiff stated a cause of action for legal malpractice, and dismissal was therefore improper.
Significance of Decision
In a case of first impression, the court held that although there is no general duty for an attorney to evaluate a client’s mental competence, a plaintiff may be able to allege sufficient facts to support a legal malpractice claim against an attorney if the plaintiff can show that the attorney was on notice of the client’s disability at the time they rendered services and failed to take appropriate steps to protect the client.
In this case, the facts alleged regarding the client’s disability were detailed, but the question remains as to how much notice an attorney must have before taking action. An attorney acting too quickly may lose a client, while an attorney who fails to act may face a legal malpractice claim.
For more information about ethics and professional responsibility, see ELEMENTS OF ILLINOIS LAW: PRACTICING ETHICALLY (IICLE®, 2023). Online Library subscribers can view it for free by clicking here. If you don’t currently subscribe to the Online Library, visit www.iicle.com/subscriptions.
Discovery Limited in Postjudgment Modification Proceeding When Ex-Husband Admitted He Had Ability To Pay Any Reasonable Child Support Ordered
In a postjudgment child support modification proceeding filed by the ex-wife, the trial court denied the ex-wife’s discovery request for documents relating to the ex-husband’s substantial nonmarital trust assets in In re Marriage of Knight, 2024 IL App (1st) 230629. While such documents could be relevant in a proceeding to modify child support, in this case the documents would not have provided the ex-wife with any additional facts to establish a substantial change in circumstances warranting a modification because the ex-husband admitted he could pay any reasonable amount the trial court ordered. The appellate court classified the admission by the ex-husband and his counsel at the evidentiary hearing as a judicial admission and noted that the judicial admission did not prohibit the ex-husband from arguing the underlying merits that the requested increase was not warranted.
Trial Court’s Denial of Postjudgment Request for Upward Modification of Child Support Reversed
In Knight, supra, the ex-wife sought an increase of a $10,000 per month child support award to $25,000 per month based on the facts that the ex-husband’s income and net worth had substantially increased since the entry of the judgement for dissolution of marriage and that he and the children were enjoying a substantially increased standard of living compared to the standard of living she could provide the children. 2024 IL App (1st) 230629 at ¶8. Under the terms of the martial settlement agreement (MSA), the ex-husband was 100-percent responsible for the children’s health insurance premiums, uninsured medical expenses, and educational expenses and 75-percent responsible for childcare, extracurricular activity, and camp expenses. 2024 IL App (1st) 230629 at ¶5. The ex-wife also requested the ex-husband be responsible for 100 percent of the latter expenses going forward. 2024 IL App (1st) 230629 at ¶8. The trial court denied the modification on the basis that (1) the ex-wife failed to demonstrate a substantial change of circumstances uncontemplated by the MSA and (2) the ex-wife failed to establish an increase in the children’s needs that warranted an increase in child support. The appellate court reversed. 2024 IL App (1st) 230629 at ¶18. The MSA stated the ex-husband’s income was between $600,000 and $1.6 million. 2024 IL App (1st) 230629 at ¶34. At the time of the modification hearing, his most recent annual incomes were between 25 percent and 127 percent higher than the top end of the range set out in the MSA. Id. The court concluded, therefore, that the parties had not contemplated such a substantial increase. The court also gave weight to a requirement in the MSA that the parties confirm their annual incomes to each other in writing via a third-party accountant. This requirement, coupled with the stated income ranges of both parties at the time the MSA was signed, could mean only that they understood the child support obligation could change in the event either of the party’s incomes was outside the ranges specified in the MSA. As such, the trial court erred when it ruled that the ex-wife failed to demonstrate a substantial change uncontemplated by the MSA. The trial court also erred when it ruled that the ex-wife failed to establish that there had been an increase in the children’s needs and thus denied her motion for modification. The trial court should have also considered the standard of living the children would have enjoyed had the marriage not been dissolved. There was no dispute that the ex-husband’s substantial increase in income and enhanced lifestyle resulted in a disparity between the standard of living the children enjoyed between the two households. The appellate court reversed and remanded for further proceedings to determine whether the ex-husband’s child support obligation should be increased. The court also ruled that at those proceedings the trial court should also hear from the ex-wife’s expert witnesses as to the cost of the repairs and maintenance to her current home, which the trial court had barred at the original hearing.
Denial of Petition for Contribution to Attorneys’ Fees in Postjudgment Matter Reversed
In a postjudgment child support modification proceeding in Knight, supra, the ex-wife sought contribution to her attorneys’ fees, which the trial court denied, finding that her financial stability would not be undermined because she had the resources to pay her own fees. On appeal, the appellate court reversed and remanded for the trial court to reconsider the same in light of its holding on the merits of the motion for modification of support.
Denial of Postjudgment Petition for Fees and Petition for Fees Related to Appeal Reversed
Two years after entry of the judgment for dissolution of marriage, the ex-wife filed a petition for allocation of undisclosed marital assets that resulted in her receiving $130,196 due to the ex-husband failing to disclose certain stock options at the time the MSA was signed in In re Marriage of Hyman, 2024 IL App (2d) 230352, ¶3. The ex-husband appealed the ruling, and the ex-wife prevailed on appeal. The ex-wife then filed a petition for fees against the ex-husband in the amount of $56,755 related to the underlying postjudgment action due to the undisclosed stock options and a second fee petition in the amount of $24,833 related to her successful appeal. 2024 IL App (2d) 230352 at ¶4. The trial court denied both fee petitions but granted her a sum total of $10,000 due to the ex-wife having to file because the ex-husband had failed to comply with the judgment without compelling cause or justification. 2024 IL App (2d) 230352 at ¶5. The trial court believed $10,000 was a reasonable amount. Id. The ex-wife filed a motion to reconsider, which was also denied. On appeal, the appellate court stated that when a trial court reduces the amount requested in a fee petition, the court’s ruling should include the reasons justifying a particular reduction. In this matter, the trial court did not make a finding as to how it reached the figure of $10,000. 2024 IL App (2d) 230352 at ¶11. However, the record showed that at the motion to reconsider hearing, the trial court stated that it spoke to family law attorneys in the general vicinity and solicited various opinions that “pinned down” that a reasonable amount for the work done would be $10,000. 2024 IL App (2d) 230352 at ¶12. This was improper and in error. Unnamed lawyers who did not testify and were not subject to cross-examination are an improper basis for a court’s determination. The appellate court vacated the trial court’s order and remanded for a new hearing. The court also held that the trial court erred when it did not award nine-percent statutory interest pursuant to §2-1303 of the Code of Civil Procedure, 735 ILCS 5/2-1303.
For more information about family law, see ADOPTION LAW (IICLE®, 2024). Online Library subscribers can view it for free by clicking here. If you don’t currently subscribe to the Online Library, visit www.iicle.com/subscriptions.
Facts
Lea Savenok and her husband fell behind on the mortgage payments for their principal residence, which was secured by a mortgage held by Nationstar Mortgage LLC. Savenok v. Nationstar Mortgage, LLC, 2024 IL App (3d) 230297-U at ¶4. The Savenoks expressed interest in entering into a contract to short sell the property, which Nationstar conditionally approved. Id. One of Nationstar’s conditions was that the Savenoks and their buyer complete Nationstar’s “Short Sale Affidavit.” Id.
The Savenoks signed the affidavit. 2024 IL App (3d) 230297-U at ¶6. Their buyer also signed the affidavit, but only after adding a number of handwritten additions, including a provision that allowed the Savenoks to rent the property back from the buyer for an unspecified period of time. Id. The closing was scheduled multiple times but did not occur because the buyer refused to sign the affidavit as originally drafted by Nationstar. 2024 IL App (3d) 230297-U at ¶¶5–11. The buyer’s changes were not acceptable to Nationstar, in part because Nationstar would not permit the Savenoks to remain in the property more than 90 days after closing, and the buyer refused to close without Nationstar approving the altered affidavit. Id.
The Savenoks sued Nationstar for breach of contract, specific performance, and equitable estoppel. 2024 IL App (3d) 230297-U at ¶11. While Nationstar denied the Savenoks’ allegations, the lender did agree to allow the buyer to amend the affidavit solely as an accommodation to resolve the litigation. 2024 IL App (3d) 230297-U at ¶12. Incredulously, the buyer refused to sign the altered affidavit, and after an additional year had passed, Nationstar refused to give any additional time for the parties to close their transaction. Id.
Eventually, Nationstar filed a motion for summary judgment, arguing that no contract was formed due to the buyer’s refusal to accept the unaltered terms of the affidavit. 2024 IL App (3d) 230297-U at ¶13. The trial court agreed, granting summary judgment, and Savenok timely filed her appeal. Id.
Appellate Court
On appeal, Savenok claimed that the trial court improperly granted summary judgment, arguing that there was a material issue of fact as to whether a short sale contract existed between the parties. 2024 IL App (3d) 230297-U at ¶15. Specifically, Savenok argued that (1) there was a contract between the Savenoks and Nationstar because Nationstar approved the Savenoks’ affidavit and then Nationstar breached that contract and (2) the Savenoks were entitled to specific performance requiring Nationstar to allow the short sale to proceed. Id. In its de novo review of the trial court’s summary judgment decision, the appellate court disagreed and affirmed the lower court’s ruling. 2024 IL App (3d) 230297-U at ¶¶23–24.
The core of the appellate court’s analysis focused on contract law basics, stating that “[i]t is a well-settled principle of contract law that in order for a contract to be formed between two parties, there must be mutual assent by the contracting parties on the essential terms and conditions of the subject on which they are contracting.” 2024 IL App (3d) 230297-U at ¶17. In a short sale transaction, the appellate court noted that there are three parties to the contract: the seller, the lender, and the buyer. 2024 IL App (3d) 230297-U at ¶18.
While Nationstar conditionally approved the short sale of the property on multiple occasions and the Savenoks agreed to the terms of the conditional approval letter, including the affidavit, the buyer refused to accept the terms offered by Nationstar. 2024 IL App (3d) 230297-U at ¶18. When the buyer altered the terms of the offer by writing in her own addenda, she rejected Nationstar’s offer and created a counteroffer that had to be accepted by Nationstar before a valid contract could be formed. 2024 IL App (3d) 230297-U at ¶19. Because Nationstar never accepted the buyer’s counteroffer, a contract was never formed and Nationstar had no obligation to close the transaction. Id. Ultimately, it was not enough that the Savenoks had agreed to Nationstar’s proposed terms.
Because Savenok’s theory of recovery required that a contract exist but there was no contract between the parties, Savenok was unable to establish the essential elements of a claim for either breach of contract or specific performance, and the circuit court properly granted Nationstar’s motion for summary judgment. 2024 IL App (3d) 230297-U at ¶¶21–22.
For more information about real estate law, see MORTGAGE FORECLOSURE: CORRESPONDING ISSUES (IICLE®, 2024). Online Library subscribers can view it for free by clicking here. If you don’t currently subscribe to the Online Library, visit www.iicle.com/subscriptions.
In Mangiameli v. Illinois Workers’ Compensation Commission, 2024 IL App (1st) 231397WC-U, the court majority found that the claimant failed to prove workplace exposures were a contributing factor in the development of his prostate cancer and that the Commission properly applied the presumption in §1(d) of the Workers’ Occupational Diseases Act (OD Act), 820 ILCS 310/1, et seq. The claimant was a firefighter for the Village of Hoffman Estates from August 1998 until he retired in July 2018. He started working as a “combined paramedic firefighter” in 1989 or 1990. 2024 IL App (1st) 231397WC-U at ¶5.
During his career, the claimant responded to emergency calls, car accidents, fires, and medical emergencies. He worked two to three shifts a week and averaged five – ten calls per shift. 2024 IL App (1st) 231397WC-U at ¶5.
A “Hoffman Estates Fire Department Staff Incident Responses Report” was introduced into evidence detailing the calls from 2005 – 2017. 2024 IL App (1st) 231397WC-U at ¶6. The report listed 1,558 calls. Id.
The claimant described the protective equipment he wore during his career and how it improved over time. He wore a mask for fires with heavy smoke and heat, but not for outdoor situations or non-structure fires. He could wear a mask in any situation even if he were not instructed to do so by his employer. He did not wear a self-contained breathing apparatus (SCBA) for auto accidents unless there was a fire. He was exposed to radiator fluid, oil, gasoline, and smoke during auto accidents and was exposed to smoke when responding to outdoor fires. He coughed up black soot and blew it out of his nose after fighting fires without his mask.
The claimant responded to fires in houses, apartments, industrial buildings, fields, and dumpsters. He would wear a mask in areas of heavy smoke and heat. At the beginning of his career, he did not wear a mask during the overhaul process, which involved tearing open ceilings and walls to ensure there was no fire extension or people or animals in the building. Later, he did wear a mask, and monitors were used to check for oxygen, carbon monoxide, hydrogen sulfide, and upper and lower explosive limits. He would take off the mask and air pack when levels were normalized. 2024 IL App (1st) 231397WC-U at ¶10. His protective equipment would have soot and residue after a fire and he would wipe the soot off his neck, blow it from his nose, and cough it up. 2024 IL App (1st) 231397WC-U at ¶11.
The claimant’s father was diagnosed with prostate cancer at age 72. 2024 IL App (1st) 231397WC-U at ¶14. The claimant was 59 at the time of the hearing. 2024 IL App (1st) 231397WC-U at ¶15.
In 2002, at age 43, the claimant was diagnosed with elevated prostate-specific antigen (PSA) levels, but a biopsy showed no malignancy. 2024 IL App (1st) 231397WC-U at ¶15. Repeated PSA tests continued to show elevated levels, and biopsy tests in 2017 revealed a malignancy of the prostate. He underwent surgery in May 2017 and then had forms of radiation therapy through January 2018, following which he went on hormone replacement therapy for two years that continued through the time of the hearing. At the time of the hearing, the prostate cancer was in remission. The claimant was released to full duty in June 2018 and retired in July 2018. Id.
Dr. Peter Orris was the claimant’s medical expert, and Dr. Lev Elterman was the respondent’s medical expert. Their depositions were taken and presented.
Dr. Orris is board-certified in occupational and preventative medicine. He reviewed 50 – 60 studies and forms of literature assessing the occupational exposures of firefighters to carcinogens. 2024 IL App (1st) 231397WC-U at ¶18. He examined the claimant and reviewed the claimant’s work, personnel, and medical records.
Dr. Orris testified the claimant was exposed to multiple carcinogens from his firefighter duties, primarily during the overhaul process. He agreed the claimant’s occupation increased the exposure to carcinogens.
When asked about the elevated PSA when the claimant was in his 40s, Dr. Orris stated, “What we know from the literature is that often firefighters will develop prostate cancer at an earlier age than the general population.” 2024 IL App (1st) 231397WC-U at ¶22. Dr. Orris testified that the family history of prostate cancer doubled claimant’s risk of developing it, but that family history accounts for only ten percent of all prostate cancer. Id. Dr. Orris’s opinion was that the claimant’s occupation and family history increased his risk of developing prostate cancer. He further testified that the claimant’s occupation as a firefighter for 29 years “was a cause of his prostate cancer.” Id. He could not say which chemicals specifically caused the cancer.
On cross-examination, Dr. Orris agreed the claimant’s diet and intake of barbequed food were increased risks for cancer and exposed him to carcinogens. He also agreed that the claimant’s obesity increased his risk for certain cancers.
Dr. Elterman is a board-certified urologist who treats an average of ten patients for prostate cancer a week. 2024 IL App (1st) 231397WC-U at ¶26. He conducted an examination of the claimant and reviewed the medical records. He testified that the family history of prostate cancer increased the claimant’s risk of developing it. He agreed that firefighters are exposed to carcinogens, but did not know the specific carcinogens to which the claimant was exposed.
When asked for his opinion, Dr, Elterman testified: “I thought that [claimant’s] prostate cancer was not related to his employment as a firefighter.” 2024 IL App (1st) 231397WC-U at ¶27. The basis for his opinion was his review of the literature and the high risk for prostate cancer due to the family history. He relied on a study showing the son of a father with prostate cancer was twice as likely to develop it as the average man. Id. He opined that there was no statistically significant increase in prostate cancer incidence among firefighters when compared to the general public and that the “available literature, at best, demonstrated an inconclusive relationship between firefighting and the development of prostate cancer.” Id.
On cross-examination, Dr. Elterman admitted that he never conducted a study on the incidence of cancer in firefighters. He agreed prostate cancer can be influenced by multiple factors, including a person’s environment. He was not familiar with studies on the correlation between the occupational exposures of firefighters and prostate cancer or of a study that showed firefighters have a higher risk of prostate cancer at an earlier age than the general population. 2024 IL App (1st) 231397WC-U at ¶28. He agreed the study he relied on showed an increased incidence of prostate cancer in firefighters under age 64. Id. On redirect, Dr. Elterman testified the study he relied on indicated there was no excess risk of prostate cancer among firefighters. 2024 IL App (1st) 231397WC-U at ¶29.
The arbitrator issued a decision finding a causal connection between the claimant’s occupation and his prostate cancer and awarded benefits.
In a two-one decision, the Commission reversed. The Commission found the claimant met his burden of demonstrating exposure to carcinogens under §1(d) of the Occupational Diseases Act. However, the Commission disagreed with the arbitrator’s finding that the employer failed to rebut the presumption that the cancer was causally related to the employment under §1(d). Relying on Johnson v. Illinois Workers’ Compensation Commission, 2017 IL App (2d) 160010WC, 80 N.E.3d 573, 414 Ill.Dec. 430, the Commission found that Dr. Elterman’s opinion and off-work slips indicating the claimant’s cancer was an “off-duty” illness rebutted the presumption. 2024 IL App (1st) 231397WC-U at ¶31. The Commission, relying on Dr. Elterman’s opinion, found the claimant failed to prove that his exposure to hazardous substances was a contributing factor to the development of prostate cancer.
The claimant’s first argument on appeal was that the Commission improperly considered the presumption in §6(f) of the Workers’ Compensation Act (Compensation Act), 820 ILCS 305/1, et seq., when determining the weight to be afforded to the presumption in §1(d) of the OD Act. He argued that clear and convincing evidence was required to rebut the presumption.
The court compared the language of each section, noting the similarity of both presumptions. The court found the Commission properly reviewed caselaw interpreting the presumption in §6(f) of the Compensation Act when it interpreted §1(d) of the OD Act. The Commission properly relied on and applied the Johnson decision, which required the employer to offer some evidence sufficient to support a finding that something other than the claimant’s occupation caused his condition. 2024 IL App (1st) 231397WC-U at ¶37.
“Given the similarities in the presumptions set forth in Section 1(d) of the [OD] Act and Section 6(f)of the Workers’ Compensation Act, we conclude that employer was only required to offer some evidence to rebut the presumption set forth in Section 1(d) of the Act.” 2024 IL App (1st) 231397WC-U at ¶38.
The claimant next argued the Commission’s finding that the employer rebutted the presumption was contrary to the law and against the manifest weight of the evidence. The court rejected this, pointing out that Dr. Elterman’s opinion was some evidence that supported a finding that something other than the claimant’s occupation caused the cancer. Dr. Elterman testified the claimant likely developed the cancer as a result of his family history, which made him twice as likely to develop it. The court noted the claimant was arguing against the validity of Dr. Elterman’s opinion, which goes to the weight to be given the opinion by the trier of fact.
Finally, the court disagreed with the claimant’s argument that the Commission’s finding that he failed to prove his employment was a causative factor was against the manifest weight of the evidence. “The Commission based its finding on ‘the current state of scientific studies and the persuasive opinion of Dr. Elterman.’ ” 2024 IL App (1st) 231397WC-U at ¶46. The opinion comments “that the scientific studies, at this point in time, regarding the correlation between the development of prostate cancer and the occupation of firefighting are evolving.” 2024 IL App (1st) 231397WC-U at ¶49. The claimant had a family history of prostate cancer, which doubled his risk for developing it. “Under these circumstances we will not usurp the function of the Commission to weigh the evidence and make credibility determinations.” Id.
Justice Holdridge dissented for the reasons set forth in his dissent in the Johnson case. See 2024 IL App (1st) 231397WC-U at ¶55. In his view, the effect of the decision in Johnson and in this case is to weaken the protections given to firefighters in the Compensation Act and OD Act to such a degree that they are effectively meaningless. He also believed that the Commission’s decision was against the manifest weight of the evidence and that the employer did not rebut the statutory presumption.
For more information about workers’ compensation, see WORKERS’ COMPENSATION PRACTICE (IICLE®, 2023). Online Library subscribers can view it for free by clicking here. If you don’t currently subscribe to the Online Library, visitwww.iicle.com/subscriptions.
We welcome the new IICLE® Chair of the Board of Directors, Hal R. Morris, in our January 2025 spotlight. Morris was elected to the IICLE® Board of Directors in 2014 and has served in the secretary, treasurer, and vice chair roles. In addition to his board duties, Morris has also dedicated his time to IICLE as a contributor and speaker, authoring several chapters on REAL ESTATE LITIGATION (IICLE®, 2024) and numerous articles for IICLE’s Ethics & Professional Responsibility FLASHPOINTS.
Morris said that he has used IICLE resources from his time as a new associate consulting the grey IICLE® binders in the library to his current position. “IICLE remains a go-to resource for comprehensive, useable, and verified information on Illinois law and procedure,” he said. “Nothing else compares or is as accessible to the practicing lawyer.”
Morris is a Partner and General Counsel of Saul Ewing LLP in Chicago, a 425+ lawyer firm with 18 offices, where his practice is focused in the areas of commercial and municipal litigation and appellate law. Morris has a faculty appointment at the University of Chicago Law School, where he teaches legal ethics. Additionally, he has served as an adjunct professor at Chicago-Kent College of Law, teaching an advanced senior honors seminar on the United States Court of Appeals for the Seventh Circuit and founded Chicago-Kent’s Seventh Circuit Review, a scholarly journal discussing recent Seventh Circuit cases.
Outside of his work in the legal community, Morris is married to a former elementary school teacher and has two sons.