Has the test for causation changed with the new 2011 workers comp reforms ?? A change may have taken place in the "causative factor test" to now require proof of medical causation by a "preponderance" of the evidence. The new law is subject to Appellate Court review and interpretation but, the newly stated preponderance of the evidence standard may eliminate claims that "could or might" be related to a work injury.
Before the 2011 reforms, the "causative factor test" was used on whether or not the work accident "could or might" be related to the resulting injury. That is, if the work injury could or might be a causative factor in
Under the new codified definition of causation, (820 ILCS 305/1(d) on pg. 23) the statute now reads as requiring proof by a "preponderance of the evidence" that the injury arises out of and in the course of the employment. It was explained that this new definition merely restates what was already Supreme Court case law but Illinois workers compensation attorneys are questioning whether the old test of "could or might be related” is in fact dead.
Without a crystal ball, no one is certain yet on how the Courts will apply the newly codified definition of causation but going forward that new test may require a higher burden of medical proof. It would be a substantive change and would likely apply to accidents occurring on or after July 1, 2011. The new test probably requires that the disability or the need for medical treatment was "more probably than not" related to the work injury. The unofficial definition of "preponderance of the evidence” is by a greater weight or more probably than not.
A medical opinion may be required stating that the physical injury was "more probably than not" related to the work accident rather than by stating medical opinions as mere possibilities under the old test. I can see where the old test of "could or might be related" is now arguably insufficient to award compensation.
Further efforts at changing the statutory definition of "causation" may not be necessary. Any pending suggestions for changing the definition of causation further to "primary cause" or "sole cause" are aimed primarily at eliminating claims for aggravation of preexisting condition. I suspect that the primary motive for any proposal changing the definition of causation to "primary cause" or "sole cause" is aimed directly at eliminating aggravation of preexisting condition claims in older workers.
As I see it, that is problematic for 2 reasons: 1) older workers all have preexisting conditions so changing the definition would discriminate against all older workers, and the older the worker, the more it discriminates and 2) more importantly, the question of "causation" or "aggravation" has always been a medical question for the doctors and not for the lawyers. If the injured worker's treating doctors do not give an opinion supporting causation, the workers comp claim will usually be denied for a failure of proof.
The new question now presents itself on how much medical proof will an injured worker be required to show under the newly codified definition of causation?? I could be wrong but I believe that the statute now requires medical proof by a “preponderance” of the evidence, or in my translation, a medical opinion that the disability is "more probably than not” work related.
We will need to wait for the Illinois Courts to confirm the proof required in medical causation but in the mean time we can expect a lot of litigation involving changes in the new reforms.
I believe the battle ground in many cases will now be the "causative factor test" and whether it requires a showing that the work injury is "more probably than not" the cause for disability or the cause for medical treatment.
The old standard of "could or might be related” was recently criticized by the State's Attorney General, Lisa Madigan. She correctly indicated that the old threshold test on causation made it difficult to defend questionable cases. The old test of "could or might be related" was criticized as an extremely low threshold for establishing medical causation. If the new definition of causation is now read to require proof by a "preponderance" of the evidence, that may no longer be the case. The old "could or might be related" medical opinions may now be inadequate to win a claim for compensation.
There is some room for legal debate and the courts will have to decide the issue but proving a claim for compensation may now be much more difficult under the new changes effective 7/1/11.
The question of medical causation is still largely a question for the doctors on whether a work accident "aggravated or accelerated" an underlying medical condition but changing the law on causation any further to require that work be the "sole cause" or "primary cause" would shift the costs of aggravation of pre-existing condition claims over to employer or union group health care plans, over to the employer and union disability plans and eventually, shift the cost of those injuries over to the Federal or State Public Aid, Medicare, Medicaid and Social Security disability programs.
Proposals to change causation to eliminate aggravation of pre-existing condition claims in older workers would shift those costs over to other plans. I don't see the actual savings there for Illinois employers. Workers comp premiums would go down but their group health care costs would go up. There is no real savings advantage that I see for business in changing the wording of causation further but merely a cost shifting over to a different loss column. It doesn’t seem to be either humane or a practical political reality to eliminate compensation for older workers with pre-existing conditions, especially where those pre-existing conditions were caused by the job itself.
Under the newly codified definition of causation, further efforts at changing the statutory definition of causation may now prove unnecessary. As they say, only time (and litigation) will tell.
Chicago workers compensation attorney -- 7-17-11
Keep our Arbitrators. On behalf of my clients, I emphatically request not getting rid of our highly trained and experienced arbitrators in favor of new appointees. Commissioners are known to be appointed to short terms coming in. The sitting Governor's office has always held sway over the political bent or philosophical leaning of the Commission by regular appointment of Commissioners. But, our Arbitrators as the initial hearing officers were always civil service employees to prevent political persuasion from constantly effecting their judgment in awarding or denying compensation.
I would think that all Illinois business interests, unions, employers and the insurance companies would all want predictable results from our experienced hearing officers rather than random erroneous decisions by new hearing officers. Workers compensation is full of complicated legal exceptions, full of known and accepted doctrines of risks that arise from the employment and full of numerous and unending exceptions. It takes a fairly long time to learn all the law, the medical terminology and the human anatomy to correctly sift through questions of work trauma or aggravation of a medical condition versus idiopathic pre-existing conditions for a determination of cause and effect in awarding or denying compensation. Add in some physician CPT billing codes with some ICD-9 hospital codes on the medical bill forms, mixed with some Medical Fee Schedule calculations and add in battles over average weekly wage formulas for correctly deciding weekly benefits and you start to get my drift. It's a hell of a lot more complicated than it looks.
Medical causation is a crucial question for all our hearing officers. So crucial in fact that our legislators have been fighting over the legal definition of causation for Illinois workers comp cases for the last 8 months (and really since 1975). Illinois business interests and the unions should both make a concerted push to retain most if not all of our arbitrators and Commissioners to guarantee consistent application of the workers compensation law.
It must be clearly stated that our arbitrators, the Courts and the Commission have not been the problem on driving up workers compensation costs in the recent past. I know that certain attorneys have blamed them. But in tracking these awards for over 25 years, the value of most of these disability awards has actually been falling. Part of that decline in the awards is the result of arthroscopic surgery and our doctors are getting much better surgical outcomes which result in far less disability. These arbitrators and Commissioners do not need to be replaced in wholesale fashion as the main culprit in increasing the costs of workers compensation claims. Medical inflation had been a real factor since 1995 in driving up costs but that was capped off in the 2005 reforms. Recently, Medicare Set Aside funding for Social Security applicants has had a huge impact on driving up the medical costs per claim on our Illinois workers compensation cases for the past 10 years.
Employers, Medicare and the "Great Recession" should all step up and take a big bow for their outstanding performance on the huge run up in Illinois workers compensation claim costs. Laying off workers with work related disabilities or medical restrictions in a recession costs big money. Whenever an employer refuses to take an injured employee back to work within the medical restrictions, the value of the claim jumps dramatically. That is an understatement. The claim costs jump by 500%, 1,000% or 2,000% or more. A lot of Illinois employers were their own worst enemy by not taking their own injured workers back to work.
That failure to return an injured employee to work within their restrictions results in large wage differential claims (costly partial pensions for life) or sometimes full permanent disability benefit pensions for life if that worker can't find any reemployment in any job at all. If they then happen to apply for Social Security disability, you can add on MSA funding. That is, Medicare wants all possible future medical expenses for an expected lifetime of benefits to be paid out of the worker’s comp settlement. Often that's anywhere from an extra $40,000 to $200,000 dollar increase added on top of back surgery claims and on top of the lost earnings portion of the claim.
If an Illinois employer doesn't want their injured worker back to work within restrictions, how can they expect the insurance company or the worker to find comparable employment or expect other Illinois employers to hire that same worker with those same restrictions at their same former rate of pay. It doesn't happen. The worker almost always suffers a large wage loss and a big earnings reduction. It’s every worker's worst nightmare that the work injury will end their career and end their employment and their ability to support their family. Let's not be uneducated or ignorant of the consequences. If an employer blows a worker out of his/her career due to a job injury, expect to pay a lot of money for it. And, I might add, in this unending recession, don't expect them to find a high paying job elsewhere.
Illinois employers who routinely treat their injured workers like disposable goods (especially in the construction industry) and throw them to the street when slightly damaged like throwing out the produce in the vegetable isle at the grocery store have directly shot themselves in the foot or shot themselves in both feet for many of the past several years. It’s almost a cultural habit of retaliation for the worker getting hurt to begin with. I've heard risk managers say "I'm not taking that !#!*^&!* back to work here" as if anyone in their right mind would ever intentionally want a hip replacement or back fusion to begin with. It's a very, very bad and very costly habit.
I‘m going to give away my #1 best kept secret in lowering an employer's worker's compensation costs -- take your injured workers back to work -- early and often -- don't blame the system, don't blame the arbitrators, don't blame your attorneys or don't blame the Commission for the high costs of your workers comp claims when treating injured workers like disposable machinery. Needless to say, even throwing away serviceable machinery like cars and trucks before their time is costly too. My plea here is to keep the current experienced Arbitrators and have all our Illinois employers learn to stop habitually throwing away their injured workers. If a few arbitrators are knowingly replaced for good cause, then so be it. But keep the rest of the highly trained and experienced good ones and let Illinois employers kill off their most costly workers comp claims by taking injured workers back to work. Spare those huge lost earnings claims and stop paying those huge Medicare future medical accounts by simply returning injured workers to work.
Illinois workers comp attorney -- http://wc-chicago.com -- 7-11-11