1. WCLE MCLE 6-4-15 Causation: Past, Present & Future
Thursday June 4, 2015
12:00 pm to 1:00 pm
James R. Thompson Center , Chicago, IL
1 Hour General MCLE Credit

2. Arising Out Of vs. Causation
Sisbro, 207 Ill.2d 193 (2003): ARISING OUT OF
To obtain compensation under the Act, a claimant bears the burden of showing, by a preponderance of the evidence, that he has suffered a disabling injury which arose out of and in the course of his employment. Baggett, 201 Ill. 2d 187, (2002); Paganelis, 132 Ill. 2d 468 (1989); Horath, 96 Ill. 2d 349 (1983); Jones, 93 Ill. 2d 524 (1983); Rogers, 83 Ill. 2d 221(1980).
It is not enough, however, to simply show that an injury occurred during work hours or at the place of employment. The injury must also "arise out of" the employment. Parro, 167 Ill. 2d 385 (1995) (the occurrence of an accident at the claimant's workplace does not automatically establish that the injury arose out of the person's employment) Caterpillar Tractor Co, 129 Ill. 2d 52 (1989)
The "arising out of" component is primarily concerned with causal connection. To satisfy this requirement it must be shown that the injury had its origin in some risk connected with, or incidental to, the employment so as to create a causal connection between the employment and the accidental injury. Caterpillar Tractor Co.  Stated otherwise, "an injury arises out of one's employment if, at the time of the occurrence, the employee was performing acts he was instructed to perform by his employer, acts which he had a common law or statutory duty to perform, or acts which the employee might reasonably be expected to perform incident to his assigned duties. A  risk is incidental to the employment where it belongs to or is connected with what an employee has to do in fulfilling his duties." Caterpillar Tractor Co.

3. Arising Out Of vs. Causation
Sisbro, 207 Ill.2d 193 (2003): CAUSATION
It is axiomatic that employers take their employees as they find them. Baggett. "When workers' physical structures, diseased or not, give way under the stress of their usual tasks, the law views it as an accident arising out of and in the course of employment." Thus, even though an employee has a preexisting condition which may make him more vulnerable to injury, recovery for an accidental injury will not be denied as long as it can be shown that the employment was also a causative factor. Caterpillar Tractor Co.; Williams, 85 Ill. 2d 117, 122 (1981); County of Cook, 69 Ill. 2d 10 (1977); Town of Cicero, 404 Ill. 487 ( 1949) (It is a well-settled rule that where an employee, in the performance of his duties and as a result thereof, is suddenly disabled, an accidental injury is sustained even though the result would not have obtained had the employee been in normal health). Accidental injury need not be the sole causative factor, nor even the primary causative factor, as long as it was a causative factor in the resulting condition of ill-being. Rock Road Construction Co. (1967)

4. Arising Out Of vs. Causation
Sisbro, 207 Ill.2d 193 (2003): CAUSATION
Whether a claimant's disability is attributable solely to a degenerative process of the preexisting condition or to an aggravation or acceleration of a preexisting condition because of an accident is a factual determination to be decided by the Industrial Commission. Roberts, 93 Ill. 2d 532 (1983); Caterpillar Tractor Co.; Caradco Window & Door, 86 Ill. 2d 92 (1981).
Further, a reviewing court must not disregard or reject permissible inferences drawn by the Commission merely because other inferences might be drawn, nor should a court substitute its judgment for that of the Commission unless the Commission's findings are against the manifest weight of the evidence. Parro, 167 Ill. 2d 385 (1995); Castaneda, 97 Ill. 2d 338 (1983).  "[T]o the extent that the medical testimony might be construed as conflicting, it is well established that resolution of such conflicts falls within the province of the Commission, and its findings will not be reversed unless contrary to the manifest weight of the evidence." Caterpillar Tractor Co.

5. Causation: Proof
Sisbro summarized: To be compensable under the Act, an injury need only be a cause of an employee's condition of ill-being, not the sole or primary causative factor Moreover, an employer takes an employee as it finds him. St. Elizabeth's Hospital, 371 Ill. App. 3d 882 (2007). Thus, recovery may be had where an occurrence at work aggravates a preexisting condition. As our supreme court has explained, "in preexisting condition cases, recovery will depend on the employee's ability to show that a work-related accidental injury aggravated or accelerated the preexisting disease such that the employee's current condition of ill-being can be said to have been causally connected to the work-related injury and not simply the result of a normal degenerative process of the preexisting condition."
A chain of events which demonstrates a previous condition of good health, an accident, and a subsequent injury resulting in disability may be sufficient circumstantial evidence to prove a causal nexus between the accident and the employee's injury. International Harvester, 93 Ill. 2d at 63.
Direct medical evidence: “reasonable degree of medical certainty”

6. Jimmy Wiley v. Pace Suburban Bus 07WC038810; 15IWCC0235 IWCC Affirms & Adopts NO Causation
To recover in a preexisting condition case, a claimant need only establish a causal connection between her work-related injury and claimed current condition of ill-being by showing that her injury aggravated or accelerated the preexisting disease. Sisbro, citing Caterpillar Tractor Co. (an accidental injury will be deemed compensable if it can be shown that the employment was also a causative factor). It has long been held that an employer takes its employees as it finds them. Sisbro, citing Baggett . As in this case, even where an employee has a pre-existing condition that renders her more vulnerable to an injury, "recovery for an accidental injury will not be denied as long as it can be shown that the employment was also a causative factor." See Sisbro; Williams 85 Ill. 2d 117 (1981); County of Cook, 69 Ill. 2d 10 (1977).
Whether a claimant's disability is attributable solely to a degenerative process of the preexisting condition or to an aggravation or acceleration of a preexisting condition because of an accident is a factual determination to be decided by the industrial Commission. Roberts 93 Ill. 2d 532 (1983);   Caradco Window, 86 III. 2d 92(1981).
In the case of Crader v. Frito Lay, 3 IIC 599 (2003), the Commission relied on Sisbro and held that the claimant's work related injury hastened his need for surgery and set off the chain of events leading to his current condition. The Commission found that the petitioner's work injury "hastened" the need for his knee replacement even though the petitioner had severe pre-existing arthritis. In Crader, the petitioner's treating physician testified that although the petitioner had several years of extensive treatment to his knee and pre-existing arthritis, the work accident was, "the straw that broke the camel's back and put petitioner in a situation where he felt like he was not able to function without going ahead with the joint replacement." Id. The Commission relied on the petitioner's treating physician and found that even though the petitioner had pre-existing arthritis, his work injury necessitated the need for surgery, and thus it was a compensable case.

7. Jimmy Wiley v. Pace Suburban Bus 07WC038810; 15IWCC0235 IWCC Affirms & Adopts NO Causation
In the case at bar, Mr. Wiley had pre-existing right hip arthritis. He had documented significant pre-existing bilateral hip osteoarthritis. He worked without issue until his injury on March 30, While his right hip arthritis could warrant a total hip arthroplasty at some indeterminable point in the future, Petitioner had no imminent medical directives for the same. The issue is whether the accident at work on March 30, caused the need the total hip replacement surgery through an aggravated or accelerated the pre-existing condition or if the work accident caused a temporary exacerbation of Mr. Wiley's pre-existing condition which subsided.
Upon a review of the differing medical opinions, the comprehensive medical records and witness testimony, the Arbitrator finds that the Petitioner experienced a temporary exacerbation of pain as a result of picking up the 90lbs batteries but that his condition returned back to the baseline by October, 2007.
Initially, it is worth noting that Petitioner is a likeable, hardworking and honest individual. His testimony and demeanor in court were noteworthy. He did not exaggerate his condition and he appeared to take his work duties seriously. The Arbitrator gives weight to his testimony regarding his symptoms and his pain. However, Petitioner credible testimony does not overcome the medical question regarding the cause of Petitioner's continued and extensive hip and back pain. The burden is upon the Petitioner and he had failed to prove by a preponderance of credible evidence that his current condition of ill-being is related to the March 30, 2007, incident. The Arbitrator finds that Petitioner experienced a temporary exacerbation of pain as a result of picking up the 90lbs batteries. His current condition of ill-being is related to his severe degenerative condition of his hips and back rather than his work related accident.

8. Thomas Hegland v. Fed Ex 10WC013266; 15IWCC0103 IWCC Affirms & Adopts NO Causation
While the Petitioner's current treating physician, Dr. Citow, has issued an opinion indicating that he believes there is a causal connection between the Petitioner's original accident and his current recommendation for a cervical spine fusion, the Arbitrator notes that the doctor's opinion is predicated upon an inaccurate history that the Petitioner's complaints of neck pain and tingling began at the time of the original accident, and continued unabated. It is clear from the records of Dr. Collins that the tingling in the fingers would wax and wane. The Arbitrator relies upon the opinion of Dr. Bernstein, who found that there was no causal connection between the original alleged injury and the Petitioner's subsequent cervical  [*17]  spine condition, based upon the change in the EMG findings, the fact that the Petitioner appeared to recover from his shoulder surgery and was able to complete an FCE indicating that he could perform unrestricted activity, and the gap in time between the original accident and the Petitioner's subsequent complaints of tingling and later neck pain. Considering the Petitioner's age and the change in the diagnostic findings, the Arbitrator agrees with Dr. Bernstein that the condition may be the result of a chronic degenerative change versus an acute injury from January 6, Most significantly, the Arbitrator finds that based upon the Petitioner's testimony and the treating medical records, the complaints involving the neck and fingertips did not occur until at least almost one month after the alleged accident. Based upon the lack of contemporaneous complaints involving the neck or fingertips at the time of the accident, a finding mat the Petitioner's alleged accident either caused injury to the Petitioner's cervical spine or aggravated a pre-existing condition to the cervical spine is precluded. Further, the Arbitrator finds it unlikely that the Petitioner sustained acute injuries  [*18]  to his neck, low back and shoulder on January 6, 2010 based upon the Petitioner's vague specifics regarding the original accident. The Arbitrator finds that based upon the available evidence, the Petitioner's initial low back injury and subsequent right shoulder condition are causally related to his work accident of January 6, 2010.

9. Christopher McClure v. SOI/DOC 13WC016865; 15IWCC0099 IWCC Affirms & Adopts NO Causation
At trial, Petitioner complained of various forms of stress and mental ailments related to not knowing whether he had contracted a blood-borne illness. The medical records show that Petitioner wanted to "see a psychiatrist to make sure that his mental status was satisfactory for working in the prison." That same medical record notes no specific complaints of mental illness. The record contains no diagnosis, no prognosis, and no treatment recommendations outside of a psychiatrist referral. This is the only medical record in the file that touches upon Petitioner's mental health. Accordingly, the arbitrator finds no medical causation between Petitioner's allegations of mental ailments at trial and the accident in question.
At trial Petitioner complained of various forms of stress and mental ailments related to the spitting incidents. The only medical record that discusses stress related to the December 5, incident is the December 18, 2013 treatment record. The record states that Petitioner took a "few days off because he was quite stressed mentally." (emphasis added). The record uses the past- tense with regard to Petitioner's claimed stress and offers no diagnosis or treatment recommendations. The Arbitrator finds that Petitioner failed to meet his burden of proof with regards to causation because there is no medical opinion, or any other evidence, confirming a causal connection between Petitioner's stress and the accident in question.

10. Causation: Proposals HB1287, HFA#1, Lost 0-69-38 (5-22-15)
(f) The term "injury" as used in this Act means a medical condition or impairment that arises out of and in the course of the employment. An injury, its occupational cause, and any resulting manifestations or disability must be established to a reasonable degree of medical certainty, based on objective relevant medical findings. For an accidental injury to be compensable, the accident must be the major contributing cause of any resulting injuries. For the purpose of this Section, "major contributing cause" means the cause which is more than 50% responsible for the injury compared to all other combined for which treatment or benefits are sought. "Injury“ includes the aggravation of a pre-existing condition by an accident arising out of and in the course of employment, but only for so long as the aggravation of the pre-existing condition continues to be the major contributing cause of the injury.

11. Causation: Proposals SB994, SFA#1, Lost 4-8-0 (5-27-15)
Sec. 1(d) (1) To obtain compensation under this Act, an employee bears the burden of showing by a preponderance of the credible evidence that (i) he or she has sustained accidental injuries arising out of and in the course of employment and (ii) the accidental injuries arising out of and in the course of employment are the major contributing cause of the medical condition or injury for which compensation is being sought. The major contributing cause of a medical condition o injury is the cause that is greater than 50% of all combined cause of the medical condition or injury.

12. Causation: Proposals SB 994 cont.
(2) For the purpose of clause (ii) of paragraph (1) only, if an employee has suffered cumulative or repetitive accidental injurie while employed in the same occupation or industry by multiple employers over time, the accidental injuries arising out and in the course of of the employment shall be considered to be the major contributing cause of the medical condition or injury for which compensation is being sought if those cumulative or or repetitive injuries suffered during employment in that occupation or industry are greater than 50% of all combined causes of the medical condition or injury. In that circumstance, the employer liable for compensation under this Act shall be the most recent current or former employer who has employed the employee for at least 3 months.
(3) An injury, its occupational cause, and any resulting manifestations of disability must be established to a reasonable degree of medical certainty, based on objective relevant medical findings.