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
[email protected]
Peoria, Illinois • 309.676.0400
Heyl, Royster, Voelker & Allen
PEORIA • SPRINGFIELD • URBANA • ROCKFORD • EDWARDSVILLE • CHICAGO
© 2012 Heyl, Royster, Voelker & Allen
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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.
POTENTIAL IMPACT OF STATUTORY CODIFICATION OF BURDEN OF PROOF
STANDARD ON COMMISSION FINDINGS RELATING TO CAUSATION .................................. D-4
IV.
ADDITIONAL CHANGES TO CAUSATION ANALYSIS CREATED BY
STATUTORY CHANGES AND POLITICAL CLIMATE ......................................................................... D-7
V.
PRACTICE POINTERS .................................................................................................................................. D-7
A.
B.
C.
D.
E.
F.
Thoroughly Investigating the Petitioner's Medical History .......................................... D-8
Preparation of Exceptional Job Analyses ............................................................................ D-8
Investigate Outside Activities .................................................................................................. D-8
Fully Document File for IME Physician ................................................................................. D-8
Selection of Credible IME Physicians .................................................................................... D-9
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.
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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)
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.
(e)
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.
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(1)
(2)
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.
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
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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
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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.
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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:
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
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:
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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.
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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.
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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.

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“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
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)
Education
 Juris Doctor, University of Illinois, 1985
 Bachelor of Arts-History (Summa Cum Laude),
Bradley University, 1982
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Learn more about our speakers at www.heylroyster.com