One of the under the radar unintended consequences of Workers’ Compensation claims is spoliation of evidence. We don’t talk about it often and sometimes we don’t even know what it is, but it can definitely have a huge impact on a workers’ compensation claim.
Spoliation of evidence is the loss or destruction of evidence and it can occur accidentally or intentionally. Under Illinois law, spoliation of evidence is a form of negligence, Boyd v. Traveler’s Ins. Co., 166 Ill. 2d 188, 195 652 N.E.2d 267 (1995).
I know what you are thinking – why do I need to worry about this? Because the exclusive remedy provision of the Illinois Workers’ Compensation Act will not bar a claim for negligent spoliation of evidence filed by an injured worker, Schusse v. Pace Suburban Bus, 779 N.E.2d 259 (Ill. App. Ct. 2002). In Schusse, Petitioner, who was a driver, suffered a spinal cord injury when his seat collapsed. Pace replaced the suspension system for the driver’s seat in the bus about ten months later, but failed to preserve the original seat even though Petitioner had filed a negligence suit alleging breach of warranty and strict products liability. Pace was not a defendant on the original complaint. However, the complaint was later amended to include a count for spoliation of evidence against the company. Pace’s argument that it was protected under the exclusive provisions of the Workers’ Compensation Act was rejected.
Per Illinois Supreme Court Rule 219(c), there are two remedies when spoliation of evidence occurs: 1) A party may seek sanctions which could include dismissal of a defense or complaint; or 2) A party may bring a claim for negligent spoliation of evidence. Therefore, if your workers’ compensation claim involves any type of equipment (i.e. motor vehicle; seats; conveyor belt; etc.), I strongly recommend you 1) Immediately segregate the equipment; and 2) Make the equipment or product available to the other party. Not only will you protect your company from any potential sanctions, but by assisting the other party, you may recover some of the money spent through subrogation.
If you have any questions about spoliation of evidence, please contact me.