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The “Eggshell Skull Rule” and Co-Morbidities
The “Eggshell Skull Rule” is a longstanding principle in workers’ compensation law. Under the rule, you take an injured worker as you find him. In other words, even if an accident would not have injured an average person, the employer may still be liable. This is true with any co-morbidity an injured worker might have at the time of the accident. A co-morbidity can complicate an otherwise minor injury. Workers’ compensation professionals must be proactive in determining whether another cause, including an injured worker’s co-morbidity, was the sole cause of a work injury. Even if a job activity caused the injury, you must closely monitor treatment before costs significantly increase.
In Illinois, an injured worker must only prove a work incident or job activities was a cause of his condition of ill-being, not that it was the sole or even primary cause. An employer will not defeat a claim by showing another cause, including a co-morbidity, contributed to the condition of ill-being. Even when an injured worker is more prone to injury because of his co-morbidity or co-morbidities, the Commission will find an accident compensable if the work incident was a cause of the injury. This is a very low threshold for the injured worker to meet. In order to analyze whether a causation defense exists, defense attorneys should examine an injured worker’s past medical history and facts surrounding the work incident.
One of the most serious co-morbidities is obesity. According to the Centers for Disease Control and Prevention in 2015 – 2016, obesity affected a little over 93 million Americans, representing 39.8% of the population. When the records show an injured worker is obese, the defense attorney should determine whether the injury was caused by complications related to obesity or the job activities. For example, an injured worker may allege his heart attack was caused by the stress and other requirements of his job. The defense attorney should first consider whether the injured worker has a past medical history that includes a co-morbidity. According to the Mayo Clinic, co-morbidities that may cause a heart attack include obesity and hypertension. If the medical records show the injured worker is obese and has hypertension, the defense attorney should schedule an independent medical examination (IME) to address causation. If the IME report concludes that the job activities had no causal connection to the heart attack, the employer has a better chance of prevailing at trial.
Another example is when an injured worker claims his repetitive job activities caused him to develop carpal tunnel syndrome (CTS). Studies have shown factors such as age, gender, and pregnancy are associated with the development of CTS. Co-morbidities, including poorly controlled diabetes, can also lead to CTS. A defense attorney should consider an IME where the medical records show a past history of co-morbidities or other factors that cause CTS. As explained above, the IME report must go beyond stating the co-morbidities caused the condition of ill-being; the report must state the work activities were not a contributing factor to the injury.
Even if the work incident was a cause of the injury, a defense attorney should closely monitor the prescribed treatment plan to mitigate costs related to non-compliance. For example, an employee injures his knee after slipping on a wet floor at work. The treating physician and IME doctor casually relate the condition of ill-being to the accident and both recommend surgery. Before surgery, the treating physician opines the injured worker must get his BMI under 35. In order to lower the injured worker’s BMI, the doctor recommends bariatric surgery. Is the employer responsible for authorizing the weight loss treatment? The Commission has found an employer not liable for a weight loss program, where the Petitioner provided no plan for the program or evidence outlining with whom the injured worker would treat.[1] Section 8(a) of the Illinois Workers’ Compensation Act obligates the employer to provide and pay for all the necessary medical “which is reasonably required to cure or relieve from the effects of the accidental injury.” Petitioner has the burden to prove the recommended treatment is reasonable and necessary. If the weight loss program is not determined to be necessary or reasonable, a defense attorney should recommend against authorizing the treatment.
Workers’ compensation professionals must be proactive when they authorize treatment plans associated with co-morbidities. In the case of the injured worker who is prescribed a weight loss program, the employer and employee should agree to strict terms before the program begins. If no progress is made after several months, the employer has a stronger basis to suspend benefits for non-compliance with the agreed treatment plan.
Obesity is not the only co-morbidity that may complicate a claim. The CDC found 11.4 million people misused prescription opioids in 2018. The same study found 2.1 million people had an opioid use disorder. Opioid dependency has long been an issue with increasing the cost of treatment and achieving a full duty release to work. Would an employer be liable for treatment for opioid addiction? In cases where the injured worker would not have been addicted to opioids but for the work accident, the employer may be on the hook for treatment related to addiction. The treatment plans can be costly and delay treatment for months, increasing the costs of medical bills and temporary total disability benefits. As soon as a defense attorney identifies signs of opioid dependency or over-prescribing of medication, she should consider utilization review to address the prescribed treatment. In the alternative, she may consider sending the injured worker to an IME with a pain management specialist.
If you have any cases involving co-morbidities that are increasing the costs of a case, contact our attorneys to discuss defense strategies to mitigate your exposure.