ESTABLISHING ACCIDENT AND CAUSAL CONNECTION SEIZE THE MOMENT TO REQUIRE WORK RELATEDNESS BY A PREPONDERANCE OF THE EVIDENCE

ESTABLISHING ACCIDENT AND CAUSAL CONNECTION SEIZE THE MOMENT TO REQUIRE WORK RELATEDNESS BY A PREPONDERANCE OF THE EVIDENCE Presented and Prepared by: Craig S. Young cyoung@heylroyster.com Peoria, Illinois 309.676.0400 Heyl, Royster, Voelker & Allen PEORIA SPRINGFIELD URBANA ROCKFORD EDWARDSVILLE CHICAGO 2012 Heyl, Royster, Voelker & Allen D-1

ESTABLISHING ACCIDENT AND CAUSAL CONNECTION SEIZE THE MOMENT TO REQUIRE WORK RELATEDNESS BY A PREPONDERANCE OF THE EVIDENCE I. INTRODUCTION... D-3 II. THE 2011 DEBATE PROCESS AND ULTIMATE RESULT... D-3 III. IV. POTENTIAL IMPACT OF STATUTORY CODIFICATION OF BURDEN OF PROOF STANDARD ON COMMISSION FINDINGS RELATING TO CAUSATION... D-4 ADDITIONAL CHANGES TO CAUSATION ANALYSIS CREATED BY STATUTORY CHANGES AND POLITICAL CLIMATE... D-7 V. PRACTICE POINTERS... D-7 A. Thoroughly Investigating the Petitioner's Medical History... D-8 B. Preparation of Exceptional Job Analyses... D-8 C. Investigate Outside Activities... D-8 D. Fully Document File for IME Physician... D-8 E. Selection of Credible IME Physicians... D-9 F. Be More Aggressive in Asserting Causation Defenses to Deny Claims... D-9 The cases and materials presented here are in summary and outline form. To be certain of their applicability and use for specific claims, we recommend the entire opinions and statutes be read and counsel consulted. D-2

ESTABLISHING ACCIDENT AND CAUSAL CONNECTION SEIZE THE MOMENT TO REQUIRE WORK RELATEDNESS BY A PREPONDERANCE OF THE EVIDENCE I. INTRODUCTION A change to the causation standard was likely the most hotly debated topic in the discussions leading up to the workers compensation legislative reforms of 2011. Employer interest groups focused on other states which had tightened causation standards leading to significant reduction in workers compensation costs. Those interest groups correctly argued that Illinois liberal causation standard places the entire burden of an injury on the employer, even when the work injury is only a minor contributing factor to the physical condition. Employers pointed to states like Missouri and Florida where recent changes to the causation standard have substantially reduced costs. While the final legislation did not contain a clear redefinition of the causation standard, the focus on causation created by the debate, along with certain changes which did occur to the workers compensation statute with regard to burden of proof, have created additional opportunities for employers with regard to the issue of causation. II. THE 2011 DEBATE PROCESS AND ULTIMATE RESULT Throughout the legislative debate of 2011, employer interest groups advanced various versions of statutory language which attempted to redefine accident, injury, aggravation, and causal relationship. While numerous versions of statutory language emerged, the main focus was to craft language which would require the accident to be the primary factor in causing the resulting medical condition and disability. The ultimate proposal from employer groups to modify the causation standard included additions to section 5 of the Act as follows: (d) (e) The term accident as used in this Act means an occurrence arising out of the employment resulting from a risk incidental to the employment and in the course of the employment at a time and place and under circumstances reasonably required by the employment. The term injury as used in this Act means a condition or impairment that arises out of and in the course of employment. A condition or impairment caused by accident is compensable only if the accident was the primary factor in causing both the resulting medical condition and disability. The primary factor is defined to be the major contributory factor, in relation to other factors, causing both the resulting medical condition and disability. Injury includes the aggravation of a pre-existing condition by an accident arising out of and in the course of the employment, but only for so long as the aggravation of the pre-existing condition continues to be the primary factor causing the disability. D-3

(1) An injury is deemed to arise out of and in the course of the employment only if: (A) it is reasonably apparent, upon consideration of all circumstances, that the accident is the primary factor in causing the injury; and (B) it does not come from a hazard or risk unrelated to the employment to which employees would have been equally exposed outside of the employment. (2) An injury resulting directly or indirectly from idiopathic causes is not compensable. These changes were not included in the legislative reforms. Numerous bills remain pending before the legislature as we speak which would potentially change the causation standard if adopted. It does not appear there is much likelihood of a change any time soon. As a result, Illinois remains an any cause state as far as causation is concerned. The best interpretation of existing law therefore remains that in order to recover in Illinois an employee needs only show that the accident might or could have been a cause of his injury. The employee does not need to prove that the injury was the cause or even the primary cause. While this interpretation of the 2011 reforms is accurate and clearly represents the current state of causation law in Illinois, other legislative changes did occur which raise interesting questions regarding the current status of the causation standard in Illinois. Section 5 of the Workers Compensation Act was amended to include the following language: (d) To obtain compensation under this Act, an employee bears the burden of showing, by a preponderance of the evidence, that he or she has sustained accidental injuries arising out of and in the course of employment. 820 ILCS 305/1(d). This represents a new addition to the Act. While this is the exact standard which has been utilized for many years based upon case law precedent, the codification of the above language is the first time burden of proof or causation language appeared in the workers compensation statute. It is uncertain why the legislature would have chosen to codify this language which had, for many years, been recognized as the law in the State of Illinois established pursuant to case law precedent. III. POTENTIAL IMPACT OF STATUTORY CODIFICATION OF BURDEN OF PROOF STANDARD ON COMMISSION FINDINGS RELATING TO CAUSATION As mentioned above, the 2011 legislative reforms codify for the first time the previously existing recognized standard on burden of proof and causation. For the first time, rather than relying D-4

exclusively upon case law interpretation, the Workers Compensation Act clearly states that an employee bears the burden of showing, by a preponderance of the evidence, that he or she has sustained accidental injuries arising out of and in the course of employment. While this represents a codification of the law as it previously existed through case law, and therefore arguably does not change the causation standard, some consideration of the intent behind codification of this language in the statute is warranted. For years, the aggressive respondent s counsel has argued that the standards applied by the Industrial Commission to causation arguments do not satisfy this burden of the petitioner to prove their case by a preponderance of the evidence. By finding causation when the requirement is only that the work injury be found as a cause as opposed to the, or a primary cause arguably does not constitute satisfaction of the petitioner s burden of proof. In short, it is not clear this definition of causation satisfies the petitioner s burden of proving causation by a preponderance of the evidence. Part of the difficulty in enforcing this burden of proof which rests with the petitioner is the lack of clarity with regard to the meaning of preponderance of the evidence. Almost all of the case law defining preponderance of the evidence addresses non-workers compensation cases and therefore cases which ultimately are presented to juries. Illinois courts almost uniformly hold that preponderance of the evidence is a common phrase and requires no definition. Chicago City Ry. Co. v. Kastrzewa, 141 Ill. App. 10 (1st Dist. 1908); Scerrino v. Dunlap, 14 Ill. App. 2d 355 (1st Dist. 1957). Any terms or added language modifying preponderance is generally condemned. Language imposing the burden upon the plaintiff, such as stating that the evidence preponderates in favor of the plaintiff, even slightly, he prevails, is error. Wolczek v. Public Service Co. of Northern Illinois, 342 Ill. 482 (1930). It is also improper to give instructions requiring the plaintiff to establish or show by a preponderance of the evidence or to instruct that the jury must be satisfied. Rolfe v. Rich, 149 Ill. 436 (1893); Rithmiller v. Keenan, 3 Ill. App. 2d 214 (2d Dist. 1954). Furthermore, it is error to impose a greater burden, such as the burden of convincing or satisfying the jury. Abrahamian v. Nickel Plate Ry. Co., 343 Ill. App. 353 (1st Dist. 1951). This well-established line of cases has traditionally held, however, that the preponderance standard does infer a greater weight of the evidence. Numerous accepted phrasing as to the definition of preponderance of the evidence exists. Definitions found acceptable include that evidence which, in the light of all the facts and circumstances in the case, and guided by these instructions is, in your judgment entitled to the greater weight and credit. Gleason v. Cunningham, 316 Ill. App. 286, 292 (4th Dist. 1942). Another court approved language which defined preponderance of the evidence as evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it. Travelers Ins. Co. v. Webster, 251 Ill. App. 3d 46, 50 (3d Dist. 1993). Illinois Pattern Jury Instructions reflect the court s reluctance to define the term. The civil jury instruction, which acts as the basis for criminal preponderance instruction, defines preponderance as [w]hen I say that a party has the burden of proof on any proposition, or use D-5

the expression if you find or if you decide, I mean you must be persuaded, considering all the evidence in the case, that the proposition on which he has the burden of proof is more probably true than not true. Ill. Pattern Jury Instr. Civ. 21.01 (2011 Ed.). While there tends to be a reluctance to define preponderance of the evidence as a necessity of establishing causation by greater than a 50 percent probability, one Illinois court has defined the burden in percentage terms. In Department of Central Management Services v. Illinois State Labor Relations Board, 249 Ill. App. 3d 740, 748 (4th Dist. 1993), the court determined that when interpreting the Illinois Public Labor Relations Act, the term preponderance as intended in the statute meant majority. The court relied on Webster s definition of majority as a number greater than half of the total in conclusion that preponderance meant greater than 50 percent. It is relevant that this court was addressing a statute which required the plaintiff to prove a proposition by a preponderance of the evidence as opposed to case law. This is particularly instructive now that the legislature has chosen to codify in the workers compensation statute the petitioner s burden to prove his accident by a preponderance of the evidence. While it must be cautioned that the standard of proof on causation has not changed, and the language requiring the petitioner to prove their accident by a preponderance of the evidence has always been the law, aggressive respondent counsel should look for opportunities to argue the significance of the legislature s decision to codify by statute this preponderance of the evidence language. Any definition of accident includes the requirement that the claimed condition of disability be causally related to the accident. Although the exact meaning of preponderance of the evidence is not clearly defined in the case law, it does obviously embody the concept of proof by a greater weight of the evidence, or beyond 50 percent of the evidence. In numerous situations, prior decisions from the Industrial Commission which have found certain injuries and repetitive traumas to be a cause of an injury or condition of ill-being, arguably do not meet this standard. Petitioners, of course, have the argument this has always been the law, and even with this existing law, the Commission has always found causation any time the accident is considered to be a cause of the condition of ill-being. Petitioners will also point out that if the legislature had intended to change the causation standard, they certainly had the opportunity to do so based upon the strong debate to clearly require that the accident be the primary cause. While that is true, there is at least some significance to the fact that this burden of proof language has now been codified by statute. Certainly, this signals some intent by the legislature for the petitioner to prove causation by a greater weight of the evidence. As a result, there is a potential that even though the causation standard was not changed by statute, we now have an argument that evidence establishing the accident to be a cause of the injury is not sufficient. It must be emphasized that this is considered a novel, and extremely aggressive defense. Clearly, it is not certain there would be a high probability of prevailing on this defense, given the fact the standard has not clearly changed. In the right case, however, asserting this defense may be appropriate when the evidence is clear that the accident was only a minimal contributing factor to the injury or condition of ill-being. D-6

IV. ADDITIONAL CHANGES TO CAUSATION ANALYSIS CREATED BY STATUTORY CHANGES AND POLITICAL CLIMATE Of course in many cases, the respondent is able to develop evidence that the accident had no causative impact on the alleged injury or condition of ill-being. Pursuant to the very liberal manner in which the Industrial Commission has typically considered these cases, most such causation disputes have typically been won by the petitioner, especially when evidence establishing causation comes from the treating doctor. Irrespective of the interpretation given to preponderance of the evidence by the Commission and by the courts, other changes in the statute, and in the Commission s structure appear to be moving in a favorable direction for employers. A number of factors may be contributing to this positive trend. First of all, there was legislative change in the 2011 amendments which require arbitrators to apply the law more objectively, and more fairly. The statute now clearly requires that all commissioners and arbitrators shall: Dispose of all workers compensation matters promptly, officially and fairly, without bias or prejudice; Be faithful to the law and maintain professional competence; Not be influenced by partisan interest, public clamor, or fear of criticism; Be faithful to the canons of the code of judicial conduct; and Base decisions exclusively on evidence in the record. While this has always been the obligation of arbitrators and commissioners, it is questionable whether or not these standards have been followed by arbitrators and commissioners consistently. In particular on issues of causation, evidence presented by respondents has not always been fairly considered by the Workers Compensation Commission. Without any requirement to do so, the default manner in which causation disputes have been decided by the Commission has typically been to follow the opinion of the petitioner s treating doctor over the opinion of a respondent s IME doctor, even when the evidence offered by the respondent is clearly more compelling and rebuts causation by a preponderance of the evidence. Early trial results following implementation of the new Commission structure tends to indicate that the above-cited statutory language, along with the new political environment may have resulted in arbitrators looking more closely at compelling causation evidence offered by respondents. V. PRACTICE POINTERS As a result of the changing environment with regard to the Workers Compensation Commission s interpretation of the causation standard, the savvy claims professional will pay more attention to the causation issue and work more aggressively to develop causation evidence. Successful strategies will include: D-7

A. Thoroughly Investigating the Petitioner's Medical History As arbitrators and commissioners pay more attention to the causation issue, the importance of establishing pre-existing conditions or other causes for the petitioners condition of ill-being increases. In fact, petitioner s attorneys are currently aware of this and are presenting greater roadblocks to employers and respondents attempting to obtain this type of evidence. When there is concern of a pre-existing condition or a competing cause for the condition of ill-being, careful use of subpoenas and motions before the Commission if necessary to compel production of documents is important. Obtaining this information for cross examination of treating doctors and for bolstering the opinions of IME doctors is more important than ever B. Preparation of Exceptional Job Analyses There is likely no place where we will see a greater impact of a changing approach to causation than with repetitive trauma claims. More so than ever, when there is dispute relating to repetitive trauma, it is important for very good job analyses to be prepared by the respondent. Usually, it is best for these to be done by a professional and competent outside agency who will be able to provide the appearance of objectivity in preparing the job analysis. Detailed reports outlining forces and pressures exerted on the body, along with video analysis is important. Every effort to include a fair representation of all physical tasks associated with the job should be made. C. Investigate Outside Activities Typically employers and respondents have not done much investigation about activities the respondent may undertake outside of work because our Industrial Commission has almost uniformly ignored that type of activity. With the Commission looking closer at causation, outside activities will be more important. Even if surveillance is not possible, if evidence can be developed of hobbies or other interests which produce significant repetition, obtaining as much information as possible is important. D. Fully Document File for IME Physician In addition to obtaining pre-existing medical records, it is important that the IME physician have a complete and well-organized copy of the medical record. In particular, when objective testing has occurred in the form of x-rays, MRIs, CT scans, and other films, diagnostic quality copies of those films must be provided for direct review by the IME physician. When arthroscopic surgeries have taken place, pictures of the procedure will be available and should be obtained for review by the IME physician. While it has always been important to make sure an IME physician s opinion is bolstered by a complete copy of the medical record, that requirement is more relevant now than ever before. Credible opinions bolstered by a review of the objective evidence supporting the opinions will likely carry more weight moving forward with the Commission. D-8

E. Selection of Credible IME Physicians While it has always been important to select credible IME physicians, that requirement is more important now. IME physicians who have the reputation of saying whatever the respondent pays them to say are not helpful. While there is always the risk of a disfavorable opinion when the case is sent to a straight shooter for an opinion, it is important to use only credible IME physicians. We now have a much better chance of winning causation disputes when we have credible IME opinions, and we don t want to lose that opportunity by using physicians who simply do not carry any credibility with the Commission. F. Be More Aggressive in Asserting Causation Defenses to Deny Claims Previously, many claims handlers justifiably gave only cursory consideration to causation defenses. This occurred because it was understood that far too many good causation defenses would be lost before the Industrial Commission. This tendency to overlook causation defenses was especially true in repetitive trauma cases. That approach to causation defenses should change. A greater likelihood of winning the causation issue at trial should result in claims handlers denying more cases up front based upon a causation defense. It is hoped a more aggressive approach to defending cases based on causation could result in fewer unnecessary surgeries. Irrespective of the ultimate result at trial, this early denial will reap benefits for the claims handling process. D-9

Craig S. Young - Partner Craig is Chair of the firm's workers' compensation practice group. He began his career at Heyl Royster as a summer clerk while in law school and became an associate in the firm's Peoria office in 1985. He has spent his entire career with Heyl Royster and became a partner in 1992. He is recognized as a leading workers' compensation defense lawyer in the State of Illinois and has handled all aspects of Illinois workers' compensation litigation including arbitrations, reviews, and appeals. Craig has developed expertise in the application of workers' compensation to certain industries including hospitals, trucking companies, municipalities, large manufacturers, school districts, and universities. In addition to his expertise in litigated cases, Craig has developed a reputation for counseling employers regarding overall management of the workers' compensation risk. Through seminars and presentations to local and national industry groups, in-house meetings, regular claims review analysis, and day-to-day legal counsel, Craig assists his clients in looking beyond each individual case in an effort to reduce overall workers' compensation expense. His comprehensive approach to workers' compensation issues also includes third-party liability and lien recovery issues. Currently, Craig serves as Chair of the Workers' Compensation Committee of the Defense Research Institute. He has also chaired DRI's Program Committee, and in that role, chaired nationally acclaimed teleconferences and seminars on specific issues relating to workers' compensation defense. He has been designated as one of the "Leading Lawyers" in Illinois as a result of a survey of Illinois attorneys conducted by the Chicago Daily Law Bulletin. Craig is actively involved in supporting many local charitable organizations and civic causes. He was the 2008 recipient of the Peoria County Bar Association's Distinguished Community Service Award. Public Speaking Workers Compensation Reform in Illinois Presented in numerous locations (2012) Elements of a Winning Workers Compensation Program Downstate Illinois Occupational Safety & Health Day (2010) Family Medical Leave Act (FMLA); Americans with Disabilities Act (ADA); and Workers Compensation Risk Control Workshop (2010) Medical Science, Industrial Commission Science - Understanding the Industrial Commission's Approach to Medical Issues Lorman Education Services (2008) The Employee Who Can't Return to Work: Wage Differentials, Vocational Rehabilitation & Job Placement Lorman Education Services (2008) Medicare Set-Aside Agreements-The Rest of the Story Defense Research Institute (2007) Resolving (or Alleviating) the Chronic Pain Case Heyl, Royster, Voelker & Allen (2007) Professional Recognition Martindale-Hubbell AV Rated Selected as a Leading Lawyer in Illinois. Only five percent of lawyers in the state are named as Leading Lawyers. Peoria County Bar Association 2008 Distinguished Community Service Award Professional Associations American Bar Association Illinois State Bar Association Peoria County Bar Association (Board Member and Secretary-Treasurer) Defense Research Institute (Workers' Compensation Committee - Chair) Court Admissions State Courts of Illinois United States District Court, Central District of Illinois United States Court of Appeals, Seventh Circuit United States Supreme Court Education Juris Doctor, University of Illinois, 1985 Bachelor of Arts-History (Summa Cum Laude), Bradley University, 1982 D-10 Learn more about our speakers at www.heylroyster.com