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Workers’ Compensation FLASHPOINTS November 2018

November 15, 2018Print This Post Print This Post

Joseph P. Basile | E-mail Joseph Basile

Appellate Court: IWCC’s Finding That Subsequent Work-Related Accidents, Not Intervening Causes, Not Contrary to Law or Against Manifest Weight of Evidence

The Workers’ Compensation Commission Division of the Illinois Appellate Court has issued a lengthy opinion involving the issue of subsequent intervening cause. The petitioner sustained three separate work-related injuries for two employers. There were divergent medical opinions on the issue of causation.

The issue of independent intervening accidents and causation was addressed in Par Electric v. Illinois Workers’ Compensation Commission, 2018 IL App (3d) 170656WC. The petitioner, an apprentice lineman for Par Electric, sustained a work-related injury to his right arm on June 16, 2014. An MRI revealed a labral tear, and he came under the care of Dr. Li, an orthopedic surgeon. He remained on light duty. In September 2014, Dr. Li performed a right shoulder arthroscopy. Postoperative care included a cortisone injection and physical therapy. In January 2015, a valid functional capacity evaluation placed him at a medium physical demand level with rare work at a heavy physical demand level. This did not match his job requirements. The therapist recommended work conditioning.

In February 2015, Dr. Paletta evaluated the petitioner. He recorded a history of a right shoulder problem in eighth grade that required surgery and healed. He found minimal motion loss, excellent strength and function, and good stability. He recommended two further weeks of work conditioning, followed by a return to work without restrictions. He related the condition to the accident.

He was discharged from work conditioning on March 10, 2015. Dr. Li released him to full duty without restriction with a follow-up appointment in four weeks. The petitioner testified his shoulder was still weak and painful. He returned to work because of the release and thought his condition would improve.

He was hired by Henkels in March 2015 as an apprentice lineman — the same position he had with Par. On April 1, 2015, he injured his right shoulder when he threw a roll of electric tape to a coworker. He continued to work. On April 3, 2015, he threw a wire grip to a coworker and felt his shoulder “roll and come out of [the] socket” along with pain. 2018 IL App (3d) 170656WC at ¶14. He finished work but “babied” the shoulder. Id.

On April 6, 2015, he saw Dr. Li for a prescheduled appointment. Dr. Li ordered an MRI-arthrogram and light duty. Henckels could not accommodate the restriction. The MRI-arthrogram revealed a “[d]iffuse labral tear,” “[n]o rotator cuff tear,” “[o]ld posttraumatic and postsurgical changes of the glenoid rim” and “a superior labral tear from anterior to posterior” (SLAP tear). 2018 IL App (3d) 170656WC at ¶16. Dr. Li recommended surgery and told him the right shoulder condition was a result of the original June 2014 injury and subsequent surgery.

On May 4, 2015, Dr. Paletta examined the petitioner. He opined that the previous area of repair was “likely intact” and that the recent injury appeared to be “an extended labral tear that involves a new area of the labrum not previously involved with the initial tear.” 2018 IL (3d) 170656WC at ¶17. He related the condition to the more recent injury and not the June 2014 accident. He agreed with Dr. Li’s surgical recommendation.

Dr. Li performed surgery on July 8, 2015, which involved an arthroscopy repair of the labrum, repair of the SLAP tear, a biceps tenodesis, and removal of a loose anchor.

Dr. Li testified that the June 2014 injury resulted, in part, in a complete tear of the capsulolabral complex and placed the petitioner at a significant risk for future dislocations. He testified the condition of the shoulder following the April 2015 accidents was partly attributable to the June 2014 injury. He explained the condition of the shoulder at the time of throwing the tape and grip was weaker than it was before the first accident. The throwing actions caused the capsule to dislocate and pull away and the anchor to pull out. He saw the anchor pulled out during the second surgery and related that to a consequence of the treatment from the first injury. He also related the subsequent labral tear to the first accident. On cross-examination, he acknowledged the extended tear was the result of the April 2015 accidents. He also agreed the petitioner did not have a SLAP tear from the first accident and that the tear from the first injury did not extend as high as what would be required to perform a biceps tenodesis. On further questioning, Dr. Li testified that when he released the petitioner in March 2015 he wanted a follow-up in four weeks and that he had not released the patient from care. He explained that there were some findings in the second surgery that were not present in the first surgery, but “the crux of this [was] the finding where the shoulder re-dislocated, pulled out the anchor that was inserted to repair the labrum that was put in as a result of the original injury.” 2018 IL App (3d) 170656WC at ¶24.

Dr. Paletta testified to the plaintiff’s history and examinations. The MRI-arthrogram showed the repaired labral tear was still intact and it appeared there was a new labral tear that extended beyond the area previously repaired. Because the injury involved a new area of the labrum, he held the opinion that the injury was not a consequence of the plaintiff’s old injury but presented a new problem. He concluded that one or both of the throwing incidents caused or contributed to the development of the SLAP tear and at the time of his February 2015 evaluation there were no signs or symptoms of a SLAP tear. He was questioned about Dr. Li’s testimony and observations during the second surgery and testified that if there was evidence to suggest that the previous labral tear had not completely healed, that there was a failure of one of the anchors, and that the new tear extended from the area of the old tear upwards, it would be his opinion that the second injury was due to incomplete healing of the first repair and an extension of the first tear and not a completely isolated second injury.

Dr. Paletta gave a second deposition. He had now reviewed the operative report and photos of the second surgery. For him, it was significant that Dr. Li noted that the site of the previous repair was loose and that the dislocation had caused one of the anchors to pull loose. In addition, Dr. Li performed a biceps tenodesis, which was not indicated at the first surgery. Dr. Paletta’s diagnosis was a recurrent tear of the anterior labrum and a new SLAP tear. He opined that the second surgery was attributable to the two throwing incidents. He changed his opinion because the operative report clearly documented that there was a new area of the labrum that was involved with the tear that was not previously noted and Dr. Li’s impression that the anchor was loose as a consequence of the dislocation episodes. On further questioning he agreed that what Dr. Li was able to visualize during the second surgery — loose anchor and chondral change — he was not able to see on the photos.

The arbitrator found that the petitioner sustained three accidents and that his condition of ill-being was causally related to all three accidents. The arbitrator determined the April 2015 accidents constituted intervening accidents breaking the causal connection from the initial accident. He awarded 23 and 6/7 weeks of temporary total disability (TTD) and medical up to March 11, 2015, in the case against Par Electric. He awarded 37 and 2/7 weeks of TTD and medical expenses incurred after April 1, 2015, in the cases against Henkels.

The Commission modified the decision in part. The Commission affirmed the findings that there were three distinct accidents but determined that the two April 2015 accidents were not intervening accidents sufficient to break the causal connection from the first accident. The Commission concluded that the petitioner’s current condition of ill-being was causally related to the June 2014 accident and that Par Electric was liable for all medical expenses and TTD. The Commission found Dr. Li’s opinions more persuasive than Dr. Paletta’s. Significant was the fact that Dr. Li did not find the petitioner at maximum medical improvement when he released him to work in March 2015. The Commission also noted the petitioner was never symptom free following his initial surgery

On appeal from the judgment of the circuit court confirming the Commission’s decision, Par Electric argued that the Commission’s decision was contrary to law, citing National Freight Industries v. Illinois Workers’ Compensation Commission, 2013 IL App (5th) 120043WC, 993 N.E.2d 473, 373 Ill.Dec. 167, and that the Commission’s decision was against the manifest weight of the evidence.

Par Electric argued that there was a conflict between the cases that hold that an employer takes an employee as it finds him or her and intervening accident cases in which the subsequent work-related accidents occur. The court’s opinion stated that the respondent seemed to suggest a conflict exists between these lines of cases because recovery is permitted under a preexisting-condition analysis if the employee establishes that his or her employment was a causative factor in the resulting condition of ill-being, but under an independent intervening analysis, an employer is relieved of liability only if the intervening event completely breaks the causal chain between the original work-related injury and the ensuing condition of ill-being. “In other words, respondent would have us limit an employer’s liability in intervening cause cases if a subsequent event was a causative factor in the employee’s resulting condition of ill-being.” 2018 IL App (3d) 170656WC at ¶57. The court commented that Par Electric cited no authority for its argument and that its position was clearly not the law in Illinois. “Every natural consequence that flows from an injury that arose out of and in the course of one’s employment is compensable under the [Workers’ Compensation] Act absent the occurrence of an independent intervening accident that breaks the chain of causation between the work-related injury and an ensuing disability or injury.” Id., quoting National Freight Industries, supra, 2013 IL App (5th) 120043WC at ¶26. The court found no basis to overturn this precedent.

The court rejected Par Electric’s argument that a test was set forth in National Freight Industries for determining whether a subsequent work-related event constitutes an independent intervening cause that severs the chain of causation from an earlier work injury. The court, in National Freight Industries, held that it was reasonable for the Commission to conclude that a subsequent motor vehicle accident resulted in more than a mere aggravation of the injuries sustained in the initial work accident and the decision was not against the manifest weight of the evidence.

The court then analyzed the manifest weight of the evidence argument. Par Electric argued there was no evidence the April 2015 accidents were natural consequences of the June 2014 accidents. For an employer to be relieved of liability for an intervening cause, the intervening cause must completely break the causal chain between the original work-related condition and the ensuing condition. As long as there is a “but-for” relationship between the work-related injury and subsequent condition of ill-being, the first employer remains liable.

In this case, the Commission found the petitioner’s condition of ill-being after April 2015 would not have resulted “but for” the original work injury. The Court found it could not say an opposite conclusion was clearly apparent. The Commission was presented with conflicting causation opinions from Dr. Li and Dr. Paletta and found Dr. Li’s opinion more persuasive. He observed the condition of the shoulder during surgery. He did not think the original condition completely healed. He related the April 2015 condition to the first injury. He did not find the petitioner at maximum medical improvement when he released him to full duty in March 2015. He also stated the original injury made the petitioner more susceptible to dislocation in the future. Based on this, the evidence could reasonably be interpreted to support the Commission’s finding that the condition of ill-being after April 2015 would not have resulted “but for” the original work injury. 2018 IL (3d) 170656WC at ¶69.

For more information on workers’ compensation, see Workers’ Compensation Practice (Illinois) — 2015 Edition. Online Library subscribers can view it for free by clicking here. If you don’t currently subscribe to the Online Library, visit www.iicle.com/subscriptions.


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