Supermarket Sweep, Workers’ Comp. Edition

Aug 24, 2021

 

In the show Supermarket Sweep, contestants raced through the aisles of a supermarket in a short amount of allotted time, competing for the highest dollar value of items in their cart by the end of the spree. Each team had approximately one and a half to two minutes to complete the spree, and bonus items (with high dollar values) were spread throughout the aisles. Contestants were given bonus time for answering questions correctly about the price of an item.

Anything is possible. It is possible that one defense attorney in Illinois (randomly chosen from a large hat) will be called into the Commission and given permission to make as many changes as possible to the Act, in under one minute. The lucky attorney will be given the Act itself, a sharpened pencil, and nothing else. As an added bonus, if the attorney answers three questions correctly about recent case law, the attorney gets to either destroy one Appellate or Supreme court case or create a new one. Time is of the essence.

We know that the chances of getting struck by lightning are far greater than the chances of a game of Supermarket Sweep Workers’ Comp. Edition.  But it never hurts to be prepared.  If you’re ever the lucky defense attorney in this situation, here are my suggestions.  Or, at least, here’s what I would do:

1. Codify the Causation Standard: Our causation standard in Illinois is fraught with problems. Section 1(d) of the Act states that “To obtain compensation under this Act, an employee bears the burden of showing, by a preponderance of the evidence, that he or she has sustained accidental injuries arising out of and in the course of the employment.” The paragraph stops there, without going on to codify our causation standard. The paragraph should go on to state that “The accidental injury must be the major contributing cause to the employee’s condition of ill-being. For purposes of this section, major contributing cause means a cause which is more than 50% responsible for the injury.”

As it stands, Illinois has a very ill-defined and loose causation standard, with the accident needing to only be “a cause” of injury, rather than the cause, the proximal cause, or major contributing cause. The very loose causation standard in Illinois has led to much confusion, generally leaving the employer to clean up the mess. For example, many physicians fail to distinguish cause and effect with a mere manifestation of symptoms. Our case law, too, fails to distinguish cause and effect with a manifestation of symptoms. Should causation be found in every case where the employee has pain at work and then has a subsequent condition? The answer should be no. Work-relatedness should not mean the same thing as a manifestation of symptoms at work. Causality should not be inferred from aches and pains alone.

Our causation standard also contradicts the preponderance of the evidence standard. Practitioners often say that “The petitioner bears the burden or showing, by a preponderance of the evidence, that the accident arose out of and in the course of the employment, and that the condition of ill-being is related to the accident.” This phrase makes little sense, as it suggests that the preponderance of the evidence standard is applicable to causation. Although the preponderance of the evidence standard is not specifically defined, the plain meaning of preponderance is “a superiority in weight, power, importance or strength.” If the accident is only “a cause” of injury, the employee is assuming a lesser burden of proof than what is required by the preponderance of the evidence standard.

2. Credits for Section 8(d)2 injuries, or at least spinal injuries under 8(d)2: It is simply unfair that employers do not get a credit for repeat spinal injuries that are compensated under Section 8(d)2. At the end of Section 8(d)2, I would add a paragraph much like Section 8(e)17 called “deduction for prior awards” where employers get a credit on any current settlement/award where the employee sustained an injury to the same part of the spine. We are all too familiar with repeat spinal injuries and endless collections of 8(d)2 settlements. There is simply no disincentive for an employee to keep filing claims for every bit of pain that stems from an existing condition, especially with the loose causation standard.

3. The shoulder should go back on the arm: I could use my Supermarket Sweep bonus winnings to destroy Will County Forest Preserve v. Illinois Workers’ Compensation Commission (the Illinois Appellate Court decision in 2012 that called for shoulder injuries to be compensation under Section 8(d)2). Instead, however, I’m just going to add the shoulder back into Section 8(e)10. Just like the hip is part of the leg (and should stay on the leg), so too, should the shoulder be part of the arm. Doing so would save employers tremendous costs and reduce the risk of litigants repeatedly filing for a condition that stems from one source.

If I qualified for the Supermarket Sweep Workers Comp. bonus, I’d probably burn one of the first Illinois Supreme Court cases that supported the “odd-lot” theory of permanent and total disability (see for example E.R Moore Co. v. Industrial Commission 71 Ill. 2d 353 (1978), Valley Mould & Iron Co. v. Industrial Commission, 84 Ill.2d 538 (1981)). These cases stand for the proposition that an employee may be permanently and totally disabled if no “stable labor market” exists for that claimant. This is perhaps the most exploited, loose, ill-defined concept in all of Illinois Workers’ Compensation. Many practitioners attempt to focus on economic recessions, pandemics, and other non-controllable factors to change focus of the analysis. The “odd-lot” concept has a wide variety of interpretations, leaving vocational experts and Arbitrators to use a crystal ball to predict an injured worker’s future employability.

I’m sweating, smoke is filling my eyelids, and the Commission has advised me to put my pencil down. No matter what “side” you are on, it is continually important to challenge our current laws and rules in an effort to achieve fairness for both employers and employees in Illinois. If you are in need of advice on any of our current laws or rules in Illinois, please do not hesitate to reach out to our attorneys here.

The NBKL blog is provided for informational purposes; we are not giving legal advice or creating an attorney/client relationship by providing this information.  Before relying on any legal information of a general nature, you may consider consulting legal counsel as to your particular facts and applications of the law. 

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-Larry Collins, Senior Director, Risk Management Marriott Claims Services, Chicago

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