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
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