Workers Compensation: Accidents and Casual Connections

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August 29, 2018
Author: Bradford C. Bucklin
Organization: Bucklin Law Office

The word “accident” is a term that is frequently misunderstood in Workers’ Compensation Discussions; many people use the common definition that an “accident” is a single traumatic event. That definition is, nowadays in Workers’ Compensation, an anachronism which predates the term “repetitive trauma.”

“Accident” used to mean that a single event occurred which caused a clearly identifiable injury. Almost immediately after the passage of the Workers’ Compensation Act, however, “accident” and “causal connection” became inseparable. Accident became to be interpreted as a sudden, identifiable event which occurred at work and which produced an unanticipated condition.

Later, such as in repetitive trauma cases, the identifiable event became the date of the onset of the injury and establishment of the causal connection, rather that the event itself.

Other questions also arose after the passage of the Workers’ Compensation Act, and they helped to define “accident” as it applied to Workers’ Compensation. For example, what if the accident didn’t occur because of a work-related activity? What if it occurred because of a work-related activity, but it happened miles or days away from the work place? What if it occurred because of a work-related activity, but recreation or fights or drugs or alcohol were involved?

Because of those questions, the issues of “arising out of” and “in the course of” work became foundations of the Workers’ Compensation law.

Still other questions arose concerning Workers’ Compensation. If an accident arose out of and in the course of work, but the person’s condition was not originally caused by work, should (s)he be paid? What if the person had a pre-existing injury that was fine until the accident? Thus, “causal connection” also became a mainstay of all Workers’ Compensation claims and hearings. The purpose of this chapter is to provide an overview of the laws regarding an accident and the causal connection of that accident to the condition claimed to have been caused by the accident. There will be situations where accident and causal connection are virtually indistinguishable. On some occasions, even the higher courts have a difficult time distinguishing them. In these situations, which mainly involve backs, heart attacks, repetitive traumas and psychological cases, sometimes it appears that the worker was found to have had an accident because his or her body just happened to break at a particular time. Even so, there is method to the madness: accidents never make it to the Workers’ Compensation Commission or the courts unless there is an injury and some people with good genetics don’t have claims for the same activity that might cripple others.

There are extensive legislative amendments to the Workers’ Compensation Act, but the issues and cases discussed here are not affected by the amendments.

“Arising Out of...”

Claimants must be in an accident which arises out of work, a phrase which is fairly self-explanatory. Generally, the claimant must be doing something which does or is intended to benefit the employer, whether required or not, whether stupid or not, in order to get benefits. This issue is closely akin to the “in the course of” employment issue, because not all injuries are sustained directly in the activity that benefits or is required by the employer. As a matter of fact, the Act provides for benefits for “Accidental injuries... arising out of and in the course of employment” (emphasis supplied) and the terms are frequently inseparable.

Generally, an accident must be associated with a risk created by the employment. This might be a true risk of a dangerous machine or condition, the speed that the employee works, or the number of times that the employee performs a certain task or tasks.

There does not need to be much of an increased risk for the accident to be compensable. Thus, in USF Holland v. Indus. Comm’n (2005), 357 Ill.App.3d 798, 829 N.E.2d 810, 239 Ill.Dec. 885, a trip over a 4 inch threshold was enough. In Nascote Industries v. Indus. Comm’n (2004), 353 Ill. App.3d 1056, 820 N.E.2d 531, 289 Ill.Dec. 755 the act of repeatedly stepping on and off a 6 inch rack was enough. A very interesting instance of compensability is Tinley Park Hotel & Conv. Ctr. v. Indus. Comm’n (2005), 356 Ill.App.3d 843, 826 N.E.2d 1037, 292 Ill.Dec. 607. In Tinley Park, a 66 year old hostess walked on new carpet all day and fell when her foot got stuck in the carpet. There was some claim that the work shoes contributed to the fall. The Commission and the court found accident and compensability; generally employment must be an activity that is different in hazard or frequency to which the general public is not exposed.

Increased risk is a factor in all of these cases involving falls and, many cases involving simple miss-steps deny compensation at the Commission level. Thus, a teacher who fell on a new carpet which had no defects and her fall involved no unusual speed or amount of walking, was unable to show an increased risk of harm and her case resulted in no compensation.

12-IWCC-0647 in 12-WC 0964 a worker who wore rubber soled shoes which were not required and whose shoes stuck to the floor and caused her to fall forward was found to have no increased risk of harm and compensability was denied. These cases are also sometimes called “neutral risk cases”.

Accidents which arise out of work must (a) be part of the employers’ usual occupation or activities (incidental to the work), or (b) be a private activity which is performed at the direction of the employer solely for the benefit of the employer, or (c) advance the employer’s business interests. Pryor v. Indus.Comm’n., (1994), 203 Ill.Dec. 705, 640 N.E.2d 364. In Pryor, the company president asked Petitioner to cut a limb on the president’s personal farm, so that the two of them could go deer hunting. The Court held that this activity did not meet the criteria. The mere fact that the person was at work, doing his/her job and got hurt is not necessarily a compensable accident. The vast majority of cases which reject claims on this basis rely on Illinois’ rejection of the “positional risk doctrine” as discussed in Brady v. Louis Ruffolo. And Sons Constr. Co., 143 Ill.2d 542, 578 N.E.2d 921, 161 Ill.Dec. 275 (1991). When a person is at work and a truck or car happens to lose control and crashes through the window, that strange occurrence does not arise out of work, even though it clearly happened while the employee was working. In other words, the mere fact that a person happened to be injured in a position while working does not equal recovery. Keep in mind, however, that when additional facts can be proven that show that there was an increased risk, then there might be recovery. For example, a highway road worker is in a position where intervening acts of third parties can seriously injure that worker. Brady discussed the fact that showing that numerous prior injuries in that same position, even due to the acts of third parties, can increase the risk of injury and produce a recovery. Brady did not totally throw out positional risk with this particular risk rejection; it just threw out positional risk absent any other proof.

“Idiopathic” falls are generally not compensable while “unexplained” falls generally are, assuming that they arise out of and in the course of work.

Idiopathic falls are falls due to some pre-existing condition such as a weakened leg or epilepsy, or even an unknown condition. In Eliot v. IIC, 282 Ill. App. 3d 238, 505 NELL 1062, 106 Ill. Dec. 271, a prison guard fell due apparently to his previously-weakened back and leg, even though the petitioner disputed it. In Stapleton v. IIC, 282 Ill. App. 3d 12,668 N.E. 2d 15,217 Ill Dec. 830 (1996) petitioner was working in a coal mine, slipped and fell; he contended that the slip was unexplained but his previously injured knee was found to be the cause of the fall.

An epileptic fall is non-compensable, Prince v. IIC, 15 Ill 2d 607,155 N.E 2d 552 (1959), where a worker who was carrying a bucket and had a seizure. By contrast, even where a pre-existing condition such as epilepsy causes a fall, a case may be compensable where the employee had an epileptic seizure and dies not from the fall (as in Prince) but due to the hazards of the employment. In Rockford Hotel Co.v. IIC 300 Ill 87, 132 N.E 759 (1921) the petitioner had a seizure and died not from the fall but due to falling into a hazardous under pit; compensability was found.

Unexplained falls are usually compensable. One of the more interesting treatments of this is found in William Ceas and Co. v. IIC, 261 Ill. App 3d 630,633 N.E 2d 994, 199 Ill. Dec. 198 (1994). In Ceas, the petitioner suffered an unexplained on stairs and died; there was some indication that the fall was due to rushing down the stairs. However, there was also evidence that the petitioner suffered from cancer. The First District court initially found no compensability, but then, on rehearing, followed Chicago Tribune Co. v. IIC, 136 Ill. App. 3d 260, 483 N.E 2d 327, 91 Ill. Dec. 45 (1985), which held “This was clearly a case of unexplained fall on the respondent’s premises. It therefore arose out of and in the course of claimant’s employment,” 483 N.E 2d at 330.

An interesting recent case involved a work-related civil case in which the survivor of a murdered worker sued the employer and claimed that the case was not a Workers’ Compensation claim. She agreed that the case was “in the course of “ (during regular work hours) but denied that the murder was an “accident,” so the employer should not be given the protection of the Act (that the employer is only responsible for anything other than workers’ comp. benefits). The Appellate Court held that the murder occurred because the murderer and the victim argued over a fry cook position on the previous day, making the attack a work-related “accident” and the victim was not the initial aggressor. So, the claim was compensable and no civil case was allowed. Rodriguez v. Frankie’s Beef/Pasta and Catering, 2012 IL App. (1st) 113155.

“In the course of...”

“In the course of” cases generally involve the question of whether the accident was part of the employer’s usual work hours doing the usual activities, or whether it is a private activity performed at the employer’s direction solely for the benefit of the employer, or to advance the employer’s business interests. Accidents which occur as the employee is simply driving to or from work do not normally either arise out of or in the course of work, Warren v. IIC, 61 Ill. 2d 373, 335 N.E. 2d 488 (1975).

Accidents which occur when the employee is running work-related errands during work, or when the employee is running such an errand on the way to or from work, arise in the course of and out of work; such are generally compensable. Travel time that is paid for, whether by mile or by hour or flat rate, would result in a compensable accident, but re-payment for mileage alone might not be enough. Commonwealth Edison v. Indus. Comm’n (1981), 86 Ill.2d 534, 428 N.E.2d 165, 56 Ill.Dec. 846. This is because the driving itself is “work” being paid for, i.e. compensation for an activity makes it a compensable accident. Accidents involving traveling employees normally involve compensable activities, with the probable exception of intoxication, even though the employee might not be performing work-related acdtivities.

An interesting new case concerning traveling employees is Venture-Newberg Perini Stone & Webster v. IWCC, 2012 Ill.App. (4th 110847WC,981N.E.2d 1091,367 Ill.DEC.363, in which a pipefitter was called out of a union office to go to work 250 miles away. In order to work at the jobsite he had to stay at a motel; in going from the motel to the jobsite, he skidded on ice and was injured. The appellate court found this to be compensable because the employee was a traveling employee, citing the general rule that traveling employees are compensated because they are out of their home area for the benefit of the employer. However, the Illinois Supreme Court reversed, in Docket #115728 (12/19/03) for the reasons discussed above; the employer did not ask the employee to travel that day and it was the employee’s choice to travel.

Driving for work, while normally being work-related, may become non-work-related if the employee takes a detour from the route required for the work-related activity. Checker Taxi Cab Company v. IIC, (1970) 45 Ill. 2d 4, 256 N.E. 2d 828. However, where the employee can prove that the deviation was agreed upon by the employer or that the deviation was occasioned by the employee’s having to make unusual accommodations to the employer’s schedule or distance requirements, even a fairly significant deviation can be compensable. For example, in International Art Studios v. IIC, (1980), 83 Ill. 2d 457, 415 N.E. 2d 1031, 47 Ill. Dec. 718, the employee had to work long overtime hours on an urgent special project. During the overtime hours, the employee had to leave work to pick up his wife from her work, doing so with the employer’s agreement. While returning to work the employee was killed in an automobile accident, and the Supreme Court held that the late hours of the return to work for the overtime and the deadline involved a risk of travel which was not common to the general public and which was compensable.

A recent case involving a personal deviation which still resulted in a finding of compensability was Johnson v. IWCC, 2011 Ill. App (2d) 100418 WC, 956 N.E. 2d 543, 53 Ill. Dec. 681, where a deputy in a patrol car left his county to pick up personal mail in an adjoining county. He then received a dispatch to assist another officer, drove at a high rate of speed and got into an accident; he was suspended for leaving his post. Nonetheless, because he was dispatched to the call and because he was trying to do his job (although poorly) when he was hurt, the case was compensable.

As discussed above, the test for compensability is whether the accident was part of the employer’s usual activities, or whether it is a private activity performed at the employer’s direction solely for the benefit of the employer, or to advance the employer’s business interests. For this reason, unreasonable risks can be compensable, such as where an employee lowers himself 20 to 30 feet through a hatchway by means of an industrial mop bucket hooked onto a hoist, which was an unreasonably dangerous activity, but since the activity was to further the employer’s business, it was compensable. On the other hand, where an employee was draining gasoline for his personal use during a lunch hour, with the employer’s acquiescence, the fact that the employee was doing a private activity for the benefit of himself, which was not incidental to the employee’s work activity, and which was not advancing the employer’s business, this was not compensable. Curtis v. IIC, (1987), 158 Ill. App. 3d 344, 511 N.E. 2d 866, 110 Ill. Dec. 689.

“In the course of” employment has given rise to several subsets of positional risk issues. Parking lot cases appear to be compensable where the parking lot is only accessible by employees and has defects, but not when the parking lot is a general public parking lot. Some parking lot cases also involve the questions of whether there is a defect in the lot and/or what the employee is doing when the accident occurred. So, pebbles in a lot which is not available to the general public have been found to be an increased risk of employment and held compensable. Fermi National Accelerator Lab v. Industrial Comm’n., (1992), 244 Ill.App.3d 899, 586 N.E.2d 750, 160 Ill.Dec. 792. Taking a detour first, and then coming back and getting hurt, will probably result in denial (especially where the employee was drinking), as in Aaron v. Indus. Comm’n, (1974), 59 Ill.2d 267, 319 N.E.2d 820.

One question which arises often in these types of cases involves control; if the employee is required to be where (s)he is injured, then compensability is usually found. So, lunch breaks and coffee breaks are usually compensable activities when they occur on-site and where the employee is required to stay during the break; it is for the employer’s benefit that they are required to stay when the accident occurred. So, slips and falls and even Frisbee accidents have been ruled compensable. The questions that the courts look at involve whether the employee is taking unnecessary risks and whether the employer is aware of the activity. So, a Frisbee-throwing accident, such as in Eagle Discount Supermarket v. Indus. Comm’n, (1980), 82 Ill.2d 331, 412 N.E.2d 492, 45 Ill.Dec. 141 is compensable if the employer is aware of or agrees to the employees playing during the breaks when they aren’t allowed to leave or are encouraged to stay. Employees who have to be on call may be compensable in most any situation. See City of Springfield v.Industrial Comm’n., (1993), 244 Ill.App.3d 408, 614 N.E.2d 478, 185 Ill.Dec. 344. The Workers’ Compensation Act, 305 ILCS, in section 11 now codifies the above and provides that there will be no compensation for voluntary programs such as athletic events, picnics, and parties unless the employer makes such participation mandatory.

Fights between employees are work-related if the fight concerns work, but the initial aggressor is not covered; only the victim is covered. For example, Franklin v. IIC, (2003), 341 Ill.App. 3s 128, 791 N.E. 2d 171, 274 Ill. Dec. 760, involving two cosmetic ladies fighting over a customer, illustrates the importance of identifying the initial aggressor. See also Rodriguez, supra. Intoxication normally has been a defense to the idea that anything that a traveling employee does is compensable. However, consumption that does not impair or incapacitate the employee from performing his work will not preclude recovery. See McKernin Exhibits v. Industrial Comm’n (2005), 361 Ill.App.3d 666, 838 N.E.2d 47, 297 Ill.Dec. 560, where claimant consumed cocaine days before the accident in which he rear-ended another vehicle; the cocaine was not proved to be the immediate cause of the accident. Intoxication is also now codified as a defense. There is a rebuttable presumption that a blood alcohol content of .08 (as measured by breath, urine or blood test) or the presence of specified drugs (tested in accordance with specified procedures) in the bloodstream means that the employee’s accident was the cause of the accident.

The presumption may be rebutted by a showing that the alcohol or drug was not the sole proximate cause of the accident. See 305 ILCS Sec 11.

Repetitive traumas
It is now well-established that Peoria County Bellwood Nursing Home v. Industrial Commission, (1987) 115 Ill.2d 524, 505N.E.2d 1206, 106 Ill.Dec. 235 applies to all repetitive trauma/repetitive use cases, whether they be for cases in which the condition was actually caused by the repetitive use, or in which the condition was aggravated or accelerated by the repetitive use.

The accident date is whenever the condition “manifested itself.” That means the date upon which the condition became known and the relationship of the condition to the work would be apparent to a reasonable person. These cases are very difficult to defend. The best defenses utilize IME’s who are very familiar with the claimant’s particular job requirements and who believes that the work could not have caused the condition (e.g. the work only involved one movement per hour and the IME said that there was no way that that could have caused or aggravated a repetitive injury such as CTS.

A fairly recent case regarding the manifestation date which is important concerning the statute of limitations is Durand v. IIC, 358 Ill. App. 3d 239, 831 N.E. 2d 655, 294 Ill. Dec. 715 (3d Dist. 2005). In Durand, the Petitioner worked for the Respondent for 11 years, and admitted that she suspected that she had work-related CTS in 1997. She told her supervisor that she felt that she was having work-related carpal tunnel problems when she first saw a doctor and after a 2000 EMG; she told the supervisor this in September or October of 2000. She filed her Application for Adjustment of Claim in January of 2001. The statute of limitations for Workers’ Compensation cases is 3 three years, obviously. However, Workers’ Compensation practitioners frequently have used the date of diagnosis as a manifestation date. The Durand appellate court said that, while the Petitioner was diagnosed within 3 years of the filing of the Application, the diagnosis date cannot be used as a manifestation date where the Petitioner herself reported the work-related carpal tunnel syndrome previous to the diagnosis. The Illinois Supreme Court, (2006) 224 Ill. 2d 53, 862 N.E. 2d 918, reversed. It stated that employees who try to diligently work through progressive pain until they needed medical treatment should not be penalized: “The employee’s medical treatment, as well as the severity of the injury and particularly how it affects the employee’s performances, are relevant to when a reasonable person would have plainly recognized the injury and its relation to work.”

Although there were changes regarding repetitive trauma made to the Workers’ Compensation Act in 2011, the Commission treatment of workers’ compensation compensability does not seem to have changed. For example, in 2012 IWCC 0409, a clerk who filed, assembled, and typed 6 hours per day for 12 years was found to have compensable carpal tunnel syndrome because her medical doctor (who said that he job duties contributed to the CTS) was more persuasive than the IME, who said that these duties were not enough to cause or contribute to the carpal tunnel syndrome. By contrast, in 2012 IWCC 0365, a document capture technician who performed repetitive hand motions for over ½ day for 33 years, and whose doctor said that these conditions caused a work related injury, lost because her hand symptoms began only after she was diagnosed with a hypothyroid condition. Hence, repetitive trauma cases continue to be determined on a case -by–case factual basis and the persuasiveness of doctors is critical.

The law regarding pre-existing conditions, and the aggravation of those conditions, is well established. Pre-existing conditions are no bar to recovery, and are no defense to recovery, if the employee can establish that the pre-existing condition was made worse (aggravated), sped up (accelerated) by the work condition(s) or even precipitated by an accident. The law regarding recovery for pre-existing conditions goes back a long, long ways. Jones Foundry vs Industrial Commission, 303 Ill. 410 (1922) is one of the earliest cases in discussing a pre-existing condition:

\"(Petitioner) was overcome at work, under circumstances which furnish an adequate cause for the result, and we will not indulge in conjecture as to what might have happened under other circumstances. He might have suffered the stroke in the same way if he had stayed at home and not worked that day, but he did not and he did suffer this stroke as the combined result of his disease and his work.\"

Needless to say, the foundry work was quite strenuous and hot and the Petitioner had a stroke following work under those circumstances.

In Republic Steel vs Industrial Commission, (1962) 26 Ill.2d 32, 185 N.E.2d 877, at 884 the Court stated that:

\"In each instance the query is whether the unforeseen and unpremeditated giving way of a part of an employee's body, resulting in disability or death in the course of his employment, could be deemed to be caused or precipitated by his work. We hold that in cases of pre-existing heart disease recovery is not necessarily precluded, depending on whether the disability or the death was the combined result of the disease in the employee's work, or the disease alone.\"

Thus, although Republic Steel involved an employee who had a pre-existing heart condition, where the work (which was strenuous and in a hot environment) aggravates the pre-existing disease, recovery is available.

The employee is not required to prove that his employment was the sole, or even the principal, causative factor of his injury; the employee need only show that the employment was a causative factor. For example, in Dean vs Industrial Commission, 143 Ill.App.3d 339, 97 Ill.Dec. 534, 493, N.E.2d 16 (1986) the Petitioner had pre-existing angina. He had the angina for approximately four (4) years prior to his work-related accident. On the day of the accident, he did heavy work, and again complained of angina. Five (5) days later, the employee had a myocardial infarction. Dean said that, while the employee had a pre-existing condition, the employment was a causative factor, even though it was not the sole or even the principal cause, and allowed benefits.

Pre-existing conditions which are congenital, or even present from birth, can still be compensable. Organic Waste Systems vs Industrial Commission, 181 Ill.Dec. 769, 608 N.E.2d 1243 (1993). Petitioner had a pre-existing congenital, non-malignant tumor in his spine. He did not, however, have any symptoms from this tumor, working for years without losing a day of work. He fell onto his buttocks and experienced pain and numbness in his leg. He was subsequently operated upon and a large arthritic joint was also found in his back. The Claimant's surgeons could not say which of either of these conditions was the exact cause of Petitioner's pain and numbness. Nonetheless, both doctors said that the tumor could have been aggravated and the arthritic joint could have been caused by the fall. The Court held that a chain of events which establishes prior good health, followed by an accident and subsequent disability, is sufficient circumstantial evidence to prove a causal nexus between the accident and the injury. Cases of this type (circumstantial evidence cases) generally require a showing of prior good health followed by an accident and then a disability in order to prove that a compensable injury has occurred.

From discussion of the above cases, it is obvious that Illinois is an \"eggshell theory\" state. In other words, if the employee is an eggshell and might be easily broken, the employee might last for years without being broken if were not for the work causing the shell to crack. Thus, it must be shown that there is some increased risk to the eggshell, however slight, as a part of the work. Put another way, the employer takes an employee as the employer finds the employee. Bocian vs Industrial Commission, 282 Ill.App.3d 519, 528. So, even where an employee is \"a suicide waiting to happen,\" as in Bocian, if the injury (or suicide) is a cause of the condition, then the case will be compensable.

Even where the condition may not be a causative factor in the condition at all, where the pre-existing condition is accelerated by the work the case will involve compensability. For example, Busaytis vs Industrial Commission, 178 Ill.App.3d 943, 128 Ill.Dec. 90, 533 N.E.2d 1178 (1989) involved a situation where the Petitioner was struck in the eye by a plug that flew out of a machine. The left eye was injured and both eyes had some debris in them. The Claimant's doctor wrote an opinion and stated that glaucoma was present in the left eye because of the injury. He apparently gave no opinion regarding the right eye. Another doctor who saw the claimant said that, since the Petitioner developed glaucoma in both eyes, he had a pre-existing potential for glaucoma. Since the previous doctor said that the glaucoma developed more quickly in the left eye due to the injury, the acceleration of the pre-existing risk factor for glaucoma meant that the case was compensable.

Another interesting acceleration case was Mason-Dixon Lines Inc., vs Industrial Commission, 75 Ill.Dec.663, 457 N.E.2d (1983). There a dock worker had uncontrolled diabetes and a gangrenous ulcer on the right foot. He had arterial problems in both feet. At work, he rolled a cart weighing over 700lbs. over one foot and grazed the other. The condition worsened and both legs were amputated below the knee. His doctor said that any trauma could have been enough to aggravate the condition. So, even with previous gangrene which might have ultimately required amputation, the case was compensable due to the aggravation and acceleration of the condition. There has been a flurry of debate regarding the significance of two recent Illinois Supreme Court decisions, Sisbro, Inc. V. Indus. Comm’n (2003), 207 Ill.2d 193, 797 N.E.2d 665, 278 Ill.Dec. 70 and Twice Over Clean v. Indus. Comm’n (2005), 214 Ill.2d 403, 827 N.E.2d 409, 292 Ill.Dec. 880.

Sisbro involved a man who stepped out of a vehicle into a hole, twisted his ankle, and who developed a degenerative arthropathy in his foot which was related to petitioner’s diabetes. Petitioner’s doctor testified that this ankle-twisting accelerated the arthropathy while the IME said that the degeneration would have happened regardless of the twisting. Sisbro involved the argument that claimants should not recover for injuries that result from “normal daily activities,” Sisbro cited a “normal daily activity exception” to the general rule that injuries that aggravate or accelerate a preexisting condition. The Supreme Court held that, even if the testimony is that normal daily activity could have caused the condition, where a work-related accidental injury did cause the condition and was an actual causative factor in the aggravation then benefits would be awarded.

Twice Over Clean involved a claimant who was lifting heavy bags of insulation many times per day. He tried to eat dinner, but could not due to chest pains. He was found to have a myocardial infarction when he went to the hospital. His treating doctor said that he did not have many risk factors for coronary artery disease. An examining doctor said that claimant’s enzyme levels showed that the heart attack occurred at work. An IME said that there was 90% blockage and that claimant was a “heart attack waiting to happen.”

The Commission and Circuit Court awarded benefits. The Appellate Court held that the “normal daily activity exception” precluded recovery. So, the Twice Over Clean Supreme Court again addressed the question of the “normal daily activities exception,” and whether it existed. The Court said that the “normal daily activity exception,” while relevant to the question of causation, cannot be applied as a matter of law to defeat a claim. In other words, where there is proof (such as the medical proof here) that a claimant’s condition was aggravated or accelerated by an accident, the “normal daily activities” have very little relevance.

A Third District Appellate Court case discussed the Sisbro type of case. Swartz v. IIC., 359 Ill. App. 3d 1083, 837 N.E. 2d 937, 297 Ill. Ded. 486 (3d Dist. 2005) involved a case in which a truck driver drove slowly to the left of an interstate and then veered sharply of the road to the right of the interstate. There was nothing unusual about the interstate or the traffic itself. The Claimant’s doctor felt that the stress of driving, together with the Claimant’s severe pre-existing condition, precipitated the heart attack. The Respondent’s doctor felt that the heart attack would have happened regardless of whether the Claimant had been driving or not. The Appellate Court found that, because the Claimant’s doctor could not say that the stress of driving was unusual, nor that it was more unusual than any one driving any particular vehicle, the act of the truck driving was not a causative factor in the Claimant’s death. This was a 3 to 2 decision, however.
The final issue is one of \"which employer is liable for aggravation of pre-existing conditions?\" This all comes down to one of proof. When the employee files a Workers' Compensation claim and alleges repetitive trauma, and the same work was involved at two different employers (or at least the injury could have been caused by some type of work at each of two different employers), often times the employee must file against both employers and prove a case against both employers, while each employer tries to prove a case against the other employer.

This is not a question of law so much as one of proof. An illustrative case of this situation is Gust K Newberg Construction vs Industrial Commission, 171 Ill.Dec. 614, 594 N.E.2d 758 (1992). In that case, the employee had two separate injuries. However, the employee was able to go to work for the second employer following the first accident. The first employer was Newberg, which argued that the Commission erred in awarding benefits for TTD and medical bills incurred following the second accident, because the evidence showed that the second accident was a major contributing cause to the claimant's condition. The Court, however, agreed with the Workers’ Compensation Commission that the first cause and the first employer were more responsible for the Claimants condition than the second.

When the employee has suffered a pre-existing injury, the employer is entitled to a credit for any previous awards; Section 8(e)17 of the Workers' Compensation Act governs this situation. It provides that, when an employee has a pre-existing injury which results in either amputation or partial loss of any member, the subsequent employer can have a credit for the prior award. By \"member\" this means the hand, arm, thumb, fingers, leg, foot or any toes, or eye(s).

It is important to note that credits are only available for prior specific losses. Credits are not available in any case involving Section 8(d)2, \"person as a whole.\" For example, in Killian vs Industrial Commission, 148 Ill.App.3d 975, 500 N.E.2d 4 (1986), the Petitioner sustained a work related back injury and entered into a settlement contract with his employer. The Petitioner then re-injured his back while working for the employer and the Petitioner received an award based upon his person as a whole. Thereafter, the Respondent petitioned the Commission for a review of the Arbitrator's decision and the Commission gave the employer credit for the prior settlement contract percentage. The Petitioner appealed to the Appellate Court and the Court held that 8(e)17 only governed specific losses.

It is not required that the employee go to work for a subsequent employer before a credit can be claimed; the only requirement is that there is a prior award. Thus, whether the employee stays with the same employer or goes elsewhere, the credit is available.

It is also interesting to note that, since there is no credit for person-as-a-whole awards, it is possible for an employee to receive more than 100% disability, once all of the awards are totaled up.

Psychiatric and stress claims are commonly grouped into the same general category. As a matter of fact, psychiatric injuries are a form of stress claim. The phrase \"stress claim\" is much overused and often mis-used; physical \"stress\" can cause mental injuries, mental \"stress\" can cause physical injuries and mental stress can cause mental injury (for that matter, all repetitive trauma cases involve physical stress causing physical injury). For that reason, use of the term \"stress claim\" tends to give the impression that all of these claims are subject to different analyses than normal claims when, in fact, the analysis is virtually the same. The only \"stress claim\" which is subject to a truly different treatment is mental stress which causes a mental injury.

There are basically three (3) types of stress claims. The first is physical stress which causes mental injury. The second is mental stress which causes physical injury. The third is mental stress which causes mental injury.

From the inception of the Workers' Compensation Act until 1976, there was no recovery in Illinois for mental injuries which were caused by mental stress. That all changed with the Supreme Court decision in the landmark case of Pathfinder Co. vs Industrial Commission, 62 Ill.2d 556, 343 N.E.2d 913 (1976). In Pathfinder, the Claimant was teaching another employee to operate a punch press. The Claimant, after instructing the co-employee, turned away from the punch press. Not long afterwards, she heard the co-employee crying for help, turned and saw that the co-employee had become caught in the press. The Claimant shut off the machine and then reached into the machine to help the co-employee pull her hand out of the press. Unfortunately, when the Claimant pulled the arm free, the hand stayed in the machine. Not surprisingly, the Claimant fainted and she woke up in a hospital. Pathfinder involved medical testimony to the effect that the Claimant suffered a psychological injury due to viewing the dismemberment. The Illinois Supreme Court stated that \"We must conclude that an employee who, like the Claimant here, sufferers a sudden, severe emotional shock traceable to a definite time, place and cause which causes psychological injury or harm has suffered an accident within the meaning of the Act, though no physical trauma or injury was sustained.\" Pathfinder, 343 N.E.2d at 917.

The critical things to note in the Pathfinder case are in two parts: (1) \"Sudden, severe emotional shock\" and (2) \"traceable to a definite time, place and cause\". If neither of those factors are present, there will be no recovery for a psychological injury.

Following the Pathfinder decision, the Workers’ Compensation Commission operated upon the presumption that all psychological disabilities were compensable. In the twelve years following Pathfinder, therefore, the Workers’ Compenstaion Commission routinely awarded benefits for most psychological injuries. It was not until 1988 that the Appellate Courts began re-examining Pathfinder.

The \"sudden and severe emotional shock\" and the \"definite time, place and cause\" were strictly construed in Chicago Board of Education vs Industrial Commission, 169 Ill. App. 3d 459, 120 Ill.Dec. 1, 523 N.E.2d 912 (1st Dist. 1988). That case involved a teacher who suffered a number of work-related stresses, which occurred over a period of time. He was teaching in a bad neighborhood and was struck on the right shoulder by a piece of concrete on one occasion. Another time, he was robbed at knife point by three men who later threatened him in an anonymous phone call when the police became involved. Another incident involved his being attacked and injured by a female student during a fight, and on still another occasion he was kicked and bitten. On several occasions he fell due to pranks, and, while breaking up one fight he injured his arm and required medical attention which resulted in his arm being placed in a sling. After five (5) years of being the victim of violent attacks, he was psychologically unable to return to school the following year. The Chicago Board of Education court distinguished the facts in Pathfinder from those in the teacher's situation. Chicago Board of Education did not involve a sudden, severe emotional shock; the teacher had a breakdown after thinking about all of the problems over the summer. Chicago Board of Education was not traceable to a definite time and place; the times and places were over a period of five (5) years.

Chicago Board of Education is important because of the discussion by the Court of factors needed for compensable mental disorders. The court noted that \"events and conditions capable of producing stress exist in every employment situation... whether mental illness qualifies as an occupational disease depends upon whether the employee can establish the risk to which he was exposed, arose out of and in the course of his employment and has a clear causal relationship to the disability suffered.\" 523 N.E.2d at 917. The court also stated that \"We conclude, upon examination of the several lines of precedent that if non-traumatically induced mental disorders due to a gradual deterioration of mental processes are compensable under our Occupational Diseases Act, a causal connection between the employment and the disability must be established by showing that the employment exposed the employee to an identifiable condition of the employment that is not common and necessary to all or to a great many occupations...{A} higher threshold level than simply the usual and ordinary pressures that exist in any working situation would erect an appropriate buffer between an employer and a host of malingering claims.\" 517 N.E.2d at 918. While one wonders how the specific set of circumstances involved (being attacked by students, robbed, and physically injured) might give rise to dicta concerning malingering, the Chicago Board of Education language is important and has been cited as authority in numerous situations.

An important part of the Chicago Board of Education case involved its discussion of the requirement of objective stress. In other words, the psychological injury must be produced by objective conditions which are stressful. The employee can not merely imagine them. In the words of Chicago Board of Education, \"the employee must establish that the stressful condition actually exists on the job. It is not sufficient that the employee believe, although mistakenly, the conditions exist. Under our statute there must be an actual risk connected with the employment which produces the injury. An honest perception which does not factually exist is insufficient to demonstrate a causal connection between the occupation and the disease.\" 523 N.E.2d at 918.

In the same year, another important psychological injury case was decided. That case was General Motors Parts Division vs Industrial Commission, 168 Ill.App.3d 678, 119 Ill.Dec. 401, 522 N.E.2d 1260 (1st Dist. 1988). In General Motors, the Petitioner was a worker who was trying to get a shift change and who asked his supervisor for the change in order to administer medication to his wife. The supervisor began screaming at the Petitioner, cursing him and shouting numerous racial slurs at the Petitioner (fortunately for the supervisor, both men were black). The supervisor also screamed at a security guard, kicked over several chairs, and simply lost control when threatening to fire Petitioner. The Petitioner had a sudden, traumatic response(?); he drank all weekend. He had crying fits and, when he went back to work on the following Monday, his co-workers ridiculed him. He then drank for several years.

Similar to Chicago Board of Education, the court noted that the incident was something that was not uncommon in the normal work place. In addition, the Petitioner's depression developed over a long period of time, rather than his having a breakdown immediately after the screaming incident. Under the facts of the case, the court concluded that the Petitioner had not suffered any abuse which was different from language or abuse which he might have suffered on the street.

Chicago Board of Education and General Motors are the basis of an analysis which requires that the worker prove that employment conditions, when compared with non-employment conditions, are the \"major contributory cause\" of the mental disorder. The \"major contributory cause\" analysis requires that the work stress be not only objective and severe but also that it outweigh any other problems or psychological difficulties for the Petitioner in his or her life.

There are other similar examples of the requirement that the psychological disability be greater than that normally experienced by a person (a) at the work place or (b) in normal life. Another school teacher case was Board of Education of the City of Chicago vs Industrial Commission, 182 Ill.App.3d 983, 131 Ill.Dec. 455, 538 N.E.2d 830 (1st Dist. 1989). In this case, a teacher became increasingly depressed over his job, which required him to perform more disciplinary duties than teaching. Finally, an eighth grade girl slapped him in the face in the lunchroom and his depression became suicidal. Even under those circumstances the court did not find that the stress of being slapped in the face was any different from that of any other teacher in the Chicago school system and, thus, the stress was not present when viewed objectively. 538 N.E.2d at 833.

Yet another denial of a claim occurred in City of Springfield vs. Industrial Commission, 214 Ill.App.3d 301, 158 Ill.Dec. 23, 573 N.E.2d 836 (4th Dist. 1991). City of Springfield involved a fire inspector who had a heavy work load, thought that he was being discriminated against due to political activities, suffered derogatory comments by his supervisors, and had panic attacks which caused him to feel as if there was a rope around his neck and he could not breath. There again, the court noted that the risks in that case were not out of the ordinary or of greater dimension than one might find in any other normal work place environment.

Just when it appeared that Chicago schoolteachers and employees in normally mentally stressful jobs could not recover for physical injuries which cause psychological injury, Rotberg v. Indus. Comm’n (2005), 361 Ill.App.3d 673, 838 N.E.2d 55, 297 Ill.Dec. 568 was decided. In Rotberg, a schoolteacher broke up a fight between students. One of the combatant students took exception and filed a police report alleging that the teacher had the nerve to make physical contact in breaking up the fight. The police then arrested the teacher. The teacher had a resultant psychological breakdown and filed a Workers’ Compensation case. Not surprisingly, considering legal precedent, the Commission and the Circuit Court denied benefits. The Appellate Court, however, said that in this case the psychological problems were “incidental to the fulfillment of [his] duties as a teacher.”

These Chicago Board of Education analyses are still usually applied; in 12 IWCC 1000, a hearings officer denied a food stamp applicant benefits and the applicant screamed obscenities and made gestures towards the hearings officer. This was apparently not an uncommon occurrence.

Nine days later the hearings officer sought psychological treatments. The claim was denied because there was not a sudden and identifiable stress and the stress was not unusual. A new case, Chicago Transit Authority v. IWCC, 2013 Ill. App 1st 120253 WC involved a bus driver who killed a pedestrian. Like , this sudden emotional event equaled sudden severe shock causing psychological injury, even though psychological injury didn’t manifest until 2 ½ months later, was found to be compensable.

Physical injuries, by their very nature, are usually objectively provable. For this reason, physical injuries which cause mental breakdowns are more frequently found to be compensable than mental traumas which cause mental disability. Thus, the requirement of proving a principal cause is not necessary; the claimant only need prove that the physical injury was a causative factor of the mental breakdown in order for the case to become compensable.

The Illinois Supreme Court, in Harper vs Industrial Commission, 24 Ill.2d 103, 180 N.E.2d 480 (1962) established that pain may cause a compensable suicide. In that case, the Petitioner suffered a back injury which caused him great pain and made him unable to perform heavy work. He developed depression, and committed suicide after attempting to return to light duty work for a week. The Court stated that pain or despair may play a role in breaking down a person's normal rational mental processes. The court also noted that Illinois, unlike many states, did not bar recovery in the case of a suicide. Therefore, the Supreme Court adopted the approach taken in Whitehead vs Keen Roofing 43 So.2d 464 (FLA. 1949) as follows: \"While {the act of suicide} may be an independent intervening cause in some cases, it is certainly not so in those cases where the incontrovertible evidence shows that, without the injury, there would have been no suicide; that the suicide was merely an act intervening between the injury and the death, and part of an unbroken chain of events from the injury to the death, and not a cause intervening between the injury and the death.\" 43 So.2d at 465.

Following its decision in Harper, the Illinois Supreme Court decided County of Cook v Industrial Commission, 87 Ill.2d 204, 57 Ill.Dec. 748, 429, N.E. 2d 865 (1981). In that case, Petitioner shot herself after her severe arm injury ended in paralysis and deep depression. The court concluded that Petitioner's suicide was caused by a pathological depression, caused by a work-related injury.

Harper stated that \"where a first cause produces a second cause that produces a result, the first cause is the cause of that result.\" 24 Ill.2d at 109. This meant that direct causation was not necessary; starting the ball rolling meant the case was compensable.

The following year, the Supreme Court decided City of Streator vs Industrial Commission, 92 Ill.2d 338, 66. Ill.Dec. 71, 442 N.E.2d 497 (1982). In that case the decedent was a fireman who suffered a back injury who later died of carbon monoxide poisoning, and left a note to his family. The note stated that \"do (sic) to my pains and back trouble my ups and down there is no way to go on.\"

City of Streator stated that \"while the injury need not have been the sole or principal cause of the suicide... there must be evidence from which the inference can be drawn that the injury was a causative factor.\" 442 N.E.2d at 542. City of Streator thus may have moved beyond Harper vs Industrial Commission and County of Cook vs Industrial Commission in that both of the former cases required that the Petitioner or Petitioner's dependents show that the suicide was the result of an unbroken chain of events from the injury to the death, while City of Streator merely required that the injury be a cause of the suicide.

A more recent case involving suicide was Bocian vs Industrial Commission, 282 Ill.App.3d 519, 217 Ill.Dec. 816, 668 N.E.2d 1 (1st Dist. 1996). Bocian was a fire fighter who injured his arm in a work-related accident. He suffered a second work-related accident and had a herniated disc in his neck. The Worker's Compensation carrier denied the claim and refused to pay TTD; Bocian committed suicide.

The testimony in Bocian was that he was upset over his financial future, worried over his family, and that he felt that he had no hope of working if he was not employed as a fire fighter (he had worked as such for 25 years). The Appellate court ruled that the Petitioner needed only to establish that employment was a causative factor in the suicide.

Bocian did not involve any psychological testimony; the testimony of family member, and co-workers and friends was sufficient.

Another line of cases which only requires that work be a causative factor is the sexual assault case involving non-consensual, violent sexual assaults and non-consensual, sex-under-duress situations.

When a Petitioner is attacked, raped and verbally abused, a continuing psychological disability is held to be compensable. In Rush-Presbyterian-St. Lukes vs Industrial Commission, 197 Ill.Dec. 51, 630 N.E.2d 1175 (1st Dist. 1994) the Petitioner was a dietician who was wearing white clothes and she was attacked because the criminals thought that she was a nurse. Following the attack, she had numerous relapses after attempting to work in stairways and hallways, after learning about other women being raped, and she had frequent flashbacks and dreams despite medications. The Court found that the Petitioner in that case was permanently, totally disabled. Where a Petitioner is a victim of a supervisor's forcing non-consensual sexual intercourse upon an employee, the Appellate court applied the physical-mental analysis, as opposed to a mental-mental analysis, in holding that non-consensual sexual harassment cases only need to be a cause of the psychological disability.

Where a Petitioner suffers a physical reaction to a non-physical incident, the Petitioner will not qualify for a physical-mental treatment. In Northwest Suburban Edu. Org. v. IIC, 312 Ill. App. 3d 783, 728 N.E. 2d 498, 245 Ill. Dec. 416 (1st Dist. 2000), the court held that physical trauma is required, and not just the employee’s subjective physical reaction to the a non-physical incident.

Psychological stress which causes physical injury is normally a situation which will involve a heart attack or stroke. The analysis in these cases is similar to the mental-mental injury case, in that the requirement is that Petitioner must show a stress which was greater than normally experienced at the work place. On the other hand, once that type of stress is shown, then the stress need only to be a causative factor or the heart attack or stroke.

Even though a Petitioner might have risk factors which predispose him to heart disease, if emotional stress aggravates, accelerates, or simply triggers the malfunction, then it is sufficient to support an award under the Workers' Compensation Act. Wirth vs Industrial Commission, 57 Ill.2d 475, 312 N.E.2d 593 (1974). In Wirth the decedent was basically in charge of the company during a difficult business period. He worked extremely long hours, was responsible for overseeing production deadlines and financial difficulties, and was under much job-related stress.

Even though he had pre-existing risk factors, those did not bar his recovery. In other words, the work was a causative factor in the heart attack.

County of Cook vs Industrial Commission, 69 Ill.2d 10, 12 Ill.Dec. 716, 370 N.E.2d 520 (1977) involved a decedent who suffered a heart attack after the annual rush period for business. That decedent, also, had risk factors for heart disease. The Supreme Court simply held that the Commission \"could have reasonably inferred that the decedent was subject to a greater degree of stress than that to which he was normally exposed, and that this stress constituted a contributing factor which accelerated his subsequent state of well being.\" 37 N.E.2d at 524.

As discussed above the Claimant must prove that he or she was subjected to greater stress than the employee's normal stress; if the employee can not prove this then there is no award. For example, in Vesco Ventilation and Equipment Sales vs Industrial Commission, 168 Ill.App.3d 959, 119 Ill.Dec. 643, 523 N.E.2d 111 (1st Dist. 1988) the Petitioner was under pressure to finish her task quickly so that salesmen's checks would be ready on time. However, Petitioner had performed that work for twenty (20) years. In that situation, the court felt that the case could not be compensable because the stress was no different that the claimant normally experienced at work.

Similar to the mental-mental analysis, the employee in these mental-physical cases must also prove that the stress is objective. Esco Corporation vs Industrial Commission, 169 Ill.App.3d 376, 119 Ill.Dec. 833, 523 N.E.2d 589 (4th Dist. 1988) involved an employee who worked for the employer for over twenty (20) years, whereupon he was told that he was going to be replaced in his position. He subsequently had stress and heat problems stemming from the fear of losing his job, which in turn led to his workload being decreased, then increased and then his being fired. Five (5) months later he had a heart attack. The Appellate Court pointed out that the foregoing stresses were no different from all employees and that that Petitioner's stress was not sufficiently greater than that faced by all workers so as to make the heart attack compensable. A bit more recently, the Appellate Court decided a stroke case in Steve Foley Cadillac vs Industrial Commission, 219 Ill.Dec. 207, 670 N.E.2d 885 (1st Dist. 1996). In Steve Foley, the Petitioner worked for the Respondent for eleven (11) years, retired for a year, then returned to work. He had no history of heart attack or stroke, was in good health, did not smoke and rarely drank. He got into an argument with a service manager and the service manager cursed at him.

After the argument, the Petitioner was wobbling and his vision started to go bad. He went home, grew worse over the evening and had a stroke the next day. The Petitioner's doctor said that the absence of family history of strokes and his wobbling immediately after the argument proved that work caused the stroke. Respondent's doctor felt that Petitioner had had a mild stroke at first but that the subsequent changes in Petitioner's condition meant that he had had other strokes which were caused by Petitioner's atherosclerosis. The Court felt that previous good health, despite a pre-existing condition, indicated that he was able to work prior to the accident and the incident caused his inability to work so the case would be compensable.

One of the more recent and interesting cases on this subject was Skidis vs Industrial Commission, 309 Ill.App.3d 720 (1999). Skidis was a police dispatcher whose work was increased to the point that the stress were claimed to cause a heart attack. The claim was denied due to the Esco analysis. Skidis argued, on appeal, that none of the mental-physical cases such as Esco were Supreme Court cases (compare Wirth, which was). So, Skidis asked that the Appellate Court apply Supreme Court case Peoria County Bellwood Nursing Home vs Industrial Commission, 115 Ill.2d 524, 505 N.E.2d 1026 (1987) and apply a repetitive trauma test to heart attacks and not use the General Motors- type analysis. The Appellate Court declined to do so.

An interesting Commission case which discusses both approaches, i.e. mental-mental and mental-physical is the recent case of Pasha Hunt- Golliday v. Metropolitan Water Reclamation District of Chicago, 2006 IWCC 0028, in which the Petitioner was a fireman-oiler and received several incidents of harassment, but presented no medical testimony or proof of physical injury. Since there was no sudden, severe emotional shock, the Commission declined to apply Pathfinder.

And, since there was no medical proof of physical injury, mental -physical analysis was also declined.

In Illinois, the law is very well-established that employers “take employees as they find them.” County of Cook v. Indus. Comm’n. (1977), 69 Ill. 2d 10,370 N.E. 2d 520, 12 Ill.Dec. 716. In other words, if the employer hires an employee who turns out to have a pre-existing injury or condition, then the employer is stuck with whatever pre-existing problem that employee might have. The difficulty for the employer is that injuries caused by some accidents might result in injuries which a previously uninjured employee might not suffer, and that injury would still be compensable.

The previous exception to the law which grants benefits for aggravation of pre-existing injuries is the situation where the employee’s condition is so advanced that any physical stress (whether at work or at home) could cause the condition to manifest itself, and the work did not involve abnormal stresses. Swartz, supra So, if anything could have caused the condition to have manifested itself, and there was nothing stressful at work (physical or mental) which could have caused it, then work could not have been a cause of the condition (and the activity might not be found to be an accident). The most common examples of this is the heart attack caused by normal activities or the back case where even a sneeze might herniate a disc, see Doyle v. Indus.Comm’n., (1981), 86 Ill.2d 544, 427 N.E.2d 1223, 56 Ill.Dec. 677; Chicago Messenger Service v. Indus. Comm’n., (2005) 356 Ill. App.3d 843, 826 N.E.2d 1037, 292 Ill.Dec.601 (a sneeze case).

However, due to recent decisions in Sisbro and Twice Over Clean, supra, it should be shown that the activity which preceded the condition had no effect on the Claimant. Cases involving aggravation of pre-existing conditions can only be defeated where it can be shown that (A) the activity at work presents risks that are no greater than those to which the general public is exposed, as in Swartz and (B) the work activity, which is no different from that to which the general public is exposed, can be called over-exertion only due to the employee's deteriorated health. Quality Woods Product Corp. vs Industrial Commission, 97 Ill.2d 417, 454 N.E.2d 668 (1983). Where a heart disease is so far gone that any stress, even the most ordinary stress, will produce a massive heart attack, then recovery will be denied. Doyle vs Industrial Commission. Even there, however, Doyle limited the defense by saying \"in that case the employer is not liable, because it is only coincidence that the attack occurred at work rather than somewhere else- the disability can truly be said to be not work related,\" and \"Thus, compensation is denied where the employee's disability is brought on under exertion no greater than would be expected by the general public, as where the worker sat at a desk...\" 56 Ill.Dec. at 679. Doyle involved an employee who suffered a heart attack while eating lunch. Doyle can still be cited as authority, if there are no aggravating factors as in Sisbro.

The most common phrase used in the defense of this situation is that the petitioner’s condition is a “ticking time bomb” that will self-destruct at any moment, a question not of whether the condition will occur but when it will occur.

The two important cases which have recently been decided by the courts and which should again be discussed here. They are the two Sisbro cases and the two Twice Over Clean cases, discussed above. From those cases it is obvious that the “normal daily activities exception ” is weakened, but not entirely gone. That is because the Supreme Court ruled that if there is causal connection between the work activities and the condition, then the “normal daily activities” test will not then be applied. But, if no causal connection can be established in the first place, then a defense of complete coincidence due to normal daily activities might work.

There are two types of intervening accidents which must be recognized here. Those depend on where and why the intervening accident occurred, i.e. “was it work related or not?” The best defense is where the intervening accident was not work-related. If the intervening accident was work-related, then the main benefit would be to a subsequent insurer, since there is a coverage question. If the intervening accident was at work, at the same employer, then it would result in a second case and/or an 8a or 19h claim. The second question and type of intervening accident issue is “What affect did it have on the employee’s original medical condition and, consequently, on the employee’s case?” The second situation is the true intervening accident case that has value to Respondents. If the intervening accident was not work-related and it produces an independent disabling condition, it can be used as a defense.

We must remember that intervening accidents do not necessarily provide defenses. A good example of this statement is Vogel v. Indus. Comm’n., (2005), 354 Ill.App.3d 780, 821 N.E.2d 807, 290 Ill.Dec. 495, a recent appellate case. In Vogel, the petitioner had a work-related cervical fusion which was not disputed. Petitioner then had a car accident 4 months after the fusion and then two more car accidents, all within 2 years after the original fusion. Not surprisingly, the Petitioner’s fusion failed and he asked for payment for his re-do surgery. Respondent’s IME said that the car accidents did not play a role in Petitioner’s current condition. The Arbitrator found that the three intervening accidents broke the chain of causal connection. However, the appellate court recited the old rule “that other incidents, whether work-related or not, may have aggravated the claimant’s condition is irrelevant” because Petitioner had not fully recovered from the original fusion.

Having discussed the Vogel situation, in which the previously-injured part had not healed, let’s now discuss situations where defenses might work.

First, there is the situation where the employee has a work-related accident and a subsequent non-work-related accident. Normally, in this situation the employer has no defense to some issues and defenses to others. Obviously, if the employer has an injury to a different body part in the subsequent accident, then the nature and extent of the original injury (and the subsequent effect on TTD and PPD) can be measured. There, the defense would not totally defeat the claim, but might limit the amount of the claim. For example, suppose that the claimant has an arm injury and then has a leg injury. The claimant would still have the arm case for PPD purposes, but the subsequent intervening accident might relieve the employer of responsibility for TTD.

This is a question of fact, and a doctor is necessary to see whether the continuing disability is due to the new or to the old injury. The key is whether an IME could say that the Claimant had reached maximum medical improvement (MMI) before the second accident, or that the Claimant would have reached MMI shortly but for the intervening accident. The clearest example of a defense of this type is the situation where the Claimant has a simple back strain but then lifts something outside of work and then has a herniation.

Several recent cases illustrate the intervening accident/causation defense. These cases involve proof that the Petitioner engaged in activity that could have caused the condition itself. There are two obvious ways to show that the petitioner’s injury and/or disability wasn’t caused by work: either (s)he was injured before the claimed work accident or after the claimed accident. First, testimony may show that the Petitioner had engaged in strenuous activity that could have caused the condition. This is of little value unless it can also be shown that the Petitioner complained of pain after the strenuous activity outside of work, and before the work “accident.”

Therefore, Respondents may wish to discover, by interviewing possible witnesses, whether the Petitioner had done something strenuous and also had pain afterward. This is probably only provable through testimony, since it is unlikely that there will be videotape of the prior activity (unless it happens to be submitted to America’s Funniest Videos).
Second, there may be strenuous activity after the accident and that activity is on video. Of course, testimony might prove the same thing. This can serve two purposes: it could show that the condition actually caused the condition, such as a herniated disc, thus defeating the claim entirely.

To do this, however, such video proof must be coupled with an IME’s testimony that says that the activity on the video could have caused the condition. It can also serve to reduce the work restrictions, the length of TTD, and possibly the permanent restrictions and the amount of PPD. In Ross v. Indus. Comm’n, (2005), 353 Ill.App.3d 193, 818 N.E.2d 811, 288 Ill.Dec. 876 the Petitioner made a Workers’ Compensation claim on the night that he injured his back while lifting. He kept working but he was placed on light duty. While on light duty, he was videotaped shoveling gravel, raking, pushing a stranded vehicle and lifting concrete. Only later did he have a myelogram. Petitioner’s doctor was ambivalent about whether the Petitioner’s continuing condition of disablement was caused by the work or the activities in the video. Respondent’s IME said that Petitioner’s activities showed that he could return to work. The Ross arbitrator said that he found the Petitioner had had an accident. The Commission reversed and found that Petitioner had not had proven an accidental injury and that the video did not support a finding of causation.

The Appellate Court affirmed. This case illustrates the overlapping of the issues of accident and causation. Ross appears to involve findings of both “no accident” and “no causation” because of the activities inconsistent with the condition.

Respondent prevailed on all issues in Ross because the Petitioner’s doctor could not say that Petitioner had had an injury which was caused by work. This may have been because the video was taken before the myelogram. Had there been a test taken of an injured part before the activity and the test showed a traumatic injury, accident probably could not have been defeated.

Nonetheless, that video still could have value. That is because the video could show that the Petitioner did not need to be on light duty, or that (s)he didn’t need to be on such severe restrictions as the Petitioner’s doctor had imposed.

Intoxication now codified as a defense. It is now a rebuttable presumption that a blood alcohol content of .08 equals the cause of an accident or if illegal drugs are present then the case is not compensable. An employee can rebut this presumption of intoxication if s/he can show that the intoxication was not a proximate cause of the accident 320 ILCS 305/11. That section provides that the BAC may be tested by blood, urine or breath. Drugs are to be tested in accordance with the statute.

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