Synopsis: What you need to do when a machine/device causes a work comp claim in Illinois
Editor’s comment: When a worker is involved in a work-related accident, especially one involving a machine or other mechanical device owned by the employer, companies can be confronted with challenging questions regarding preservation of the device causing or contributing to the accident/injury.
Risk, safety and claims managers should know the issues caused by Illinois law with an understanding of the importance of preserving the contrivance/mechanical device with a plan in place to ensure proper action is taken when an accident happens.
Please note this concept is similar but not identical to the OSHA concept of “lock out/tag out (LOTO).” If you have concerns about the technical difference between this advice and what LOTO means, send a reply.
An employer’s preservation of evidence causing injury serves dual purposes.
First, it protects the employer from potential liability for spoliation of evidence. This includes third-party actions against the employer as well as a potential direct action by an employee against the employer. In Schusse v. Pace Suburban Bus, the IL Appellate Court held an injured worker’s claim for negligent spoliation against an employer was not barred by the Section 5, the exclusive remedy provision of the Illinois Workers’ Compensation Act.
This appellate decision means the failure of an employer to take a device causing injury out of the work place and then possibly changing, fixing or losing it can make the employer a litigation target with unlimited civil damages over and above the WC claim.
Second, preserving evidence protects the employer’s ability to pursue third-party subrogation against other potential at-fault parties, such as product manufacturers, installers, maintenance providers and other vendors.
When does an employer need to preserve evidence? In order for a duty to preserve evidence to exist, the Illinois Supreme Court set forth a two-prong test.
First, there must be an agreement, contract, statute, special circumstance, or voluntary undertaking which gives rise to a duty to preserve evidence of a device that caused or contributed to injury.
Second, there must be a showing that a reasonable person in the employer’s position should have foreseen evidence was material to a potential civil action.
Illinois courts have not clearly defined what constitutes a “special circumstance” giving rise to a duty to preserve evidence. In Martin v. Keeley & Sons, Inc., the Illinois Supreme Court, noting the lack of a precise definition, suggested a request to preserve evidence is sufficient to create a “special circumstance,” although our highest court also held an employer-employee relationship alone is not. Given the relative ambiguity and uncertainty of what may or may not be a “special circumstance,” ignoring this rule and not preserving evidence can be a risky proposition in Illinois.
Where a duty to preserve evidence exists, failure to observe it subjects an employer to potential liability for spoliation of evidence. Spoliation of evidence is a form of negligence and is a recognized cause of action in Illinois. In order to prove up a spoliation claim, a plaintiff must prove:
1. Defendant breached the duty to preserve evidence by losing or destroying evidence;
2. Loss or destruction of evidence was the proximate cause of the plaintiff’s inability to prove an underlying lawsuit; and
3. As a result the plaintiff sustained civil damages. Martin, 2012 IL 113270.
If you have a worker injured because of a machine/device, you have to take it out of service and remember/track what you did with it until you are sure there isn’t going to be litigation involving that machine/device.
If you aren’t sure, contact the defense team at KCB&A or simply send a reply.
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Synopsis: Illinois Appellate Court affirms denial of prospective fourth surgery or maintenance benefits for worker injured in attack. Please see highlighted text below.
Editor’s comment: In Currey v. IWCC, Claimant Currey worked for New Ashley Stewart Inc., a retail clothing store. Her job duties included making daily bank deposits. On June 29, 2012, Currey left her employer’s premises to make a bank deposit. On her way out the door, an assailant attacked her from behind and snatched her purse from her right shoulder, running off with the store’s money.
Later, Currey noticed her arm was starting to hurt. She went to the hospital, was assessed with a shoulder strain and released with restrictions of no use of the right arm. After this, Currey continued to complain of pain.
In September 2012, Dr. Joseph Schwartz determined Currey had supraspinatus tendinosis with a possible partial-thickness tear, as well as disk herniation and thecal compression at C5-C6. Dr. Shaun Kondamuri later diagnosed cervical radiculopathy, a left-center cervical disk herniation at C5-C6 and “right upper extremity pain presumably related to the above.”
In November 2012, Dr. Zeshan Hydar performed a cervical discectomy and fusion at C5-C6.
In March 2013, Dr. Schwartz opined Currey had rotator cuff tendinosis with partial-thickness tearing of the supraspinatus. Thereafter, Claimant Currey underwent a right shoulder arthroscopic rotator cuff repair and subacromial decompression in April 2013. During the procedure, Schwartz observed a small tear in the anterior portion of the supraspinatus tendon, as well as a crescent-shaped tear in the subacromial space, both of which he sutured.
In October 2013, Currey saw Dr. Mark Cohen. She complained of constant tingling and numbness in her pinky and ring finger. Dr. Cohen opined this condition was causally related to her work accident.
Currey returned to Dr. Schwartz again in January 2014. She complained of right shoulder pain and occasional spasms. Dr. Schwartz recommended a cubital tunnel release, and Currey underwent this procedure. Please note a cubital tunnel release is for the elbow, not the shoulder.
In June 2014, Currey underwent a functional capacity evaluation or FCE. She was assessed as capable of light-duty work and given permanent restrictions.
Please note I don’t feel there is any defense value in authorizing/obtaining an FCE—this claim is another example of how worthless these tests are. If you aren’t sure of my recommendation, please send a reply.
One week later, Dr. Schwartz concluded Claimant Currey had reached MMI and discharged her from care.
In August 2014, Currey began seeing Dr. Howard Freedberg. The next month, Currey underwent a magnetic resonance imaging arthrogram of the right shoulder that disclosed undersurface thinning of the supraspinatus involving up to 50% of the tendon thickness, without a full-thickness tear.
In November 2014, Dr. Freedberg recommended a second right shoulder arthroscopic rotator cuff repair, subacromial decompression, biceps “tenotomy vs. tenodesis” and possible distal clavicle excision.
In January 2015, Claimant Currey saw Dr. Lawrence Lieber. He noted decreased strength in Currey’s right shoulder, tenderness to palpation in the right shoulder and range of motion decreased secondary to pain, among other symptoms.
Dr. Lieber opined Claimant Currey’s treatment up until this point appeared reasonable and necessary, but he said her current complaints did not require any further treatment and that she had reached MMI from the work accident as of June 18, 2014.
In February 2016, Currey returned to see Dr. Freedberg reporting neck achiness and constant, severe pain in her right shoulder and arm. Dr. Freedberg recommended right shoulder arthroscopic surgery.
Dr. Freedberg also issued a report stating he “absolutely disagree(d)” with Lieber’s conclusions. He said he believed Currey’s condition was causally connected to the June 2012 work incident, and he said he was not surprised that “(Dr.) Lieber denied the causation as in all my years and having read many reports from this doctor he has NEVER agreed with causation in any patient according to my experience.”
Claimant Currey filed an IL workers’ compensation claim seeking benefits for injuries that she sustained to her spine, right arm and shoulder.
The parties stipulated Currey suffered a work-related accident but disputed the amount of temporary total disability benefits owed, whether Currey’s current condition was causally related to the accident and whether she was entitled to prospective medical care in the form of another surgical procedure recommended by her treating physician.
An IL WC Arbitrator awarded Currey TTD benefits from July 2, 2012, until the date she began working part time for another employer, and maintenance benefits from that date through January 2015.
The Arbitrator found Currey had reached MMI on Jan. 8, 2015, and that she had failed to prove that her condition after that date was causally connected to her work accident. The arbitrator, therefore, denied prospective medical care and related expenses incurred after that date.
The Illinois Workers’ Compensation Commission three-person panel modified the arbitrator’s decision to find Currey’s current condition was causally related to her work accident, but the surgery recommended by her treating physician was neither reasonable nor necessary. The commission denied medical treatment and related expenses after Jan. 12, 2015, which was the date it found Currey had reached MMI.
The Commission panel also vacated the Arbitrator’s award of maintenance benefits and awarded temporary partial benefits from Jan. 2, 2012, through Jan. 12, 2015.
An IL circuit court judge affirmed the Commission’s decision.
The Illinois Appellate Court, WC Division ruled the Commission’s refusal to award the arthroscopic shoulder surgery recommended by Dr. Freedberg was not against the manifest weight of the evidence.
“Although Dr. Freedberg strenuously disagreed with each of Dr. Lieber’s opinions, it is the Commission’s province to judge the credibility of witnesses, to weigh the evidence and to resolve conflicts among expert medical opinions,” the court said.
The Appellate Court also ruled the Commission did not err in denying maintenance benefits to Currey. The Court explained “if the claimant is not engaged in some type of physical rehabilitation program, formal job training or a self-directed job search, the employer is not obligated to provide maintenance.”
I wish every adjuster, risk manager and defense lawyer in this state would read and memorize the paragraph immediately above this one. It is my opinion, very few folks know of this rule or follow it.
Here, the Court noted, Claimant Currey did not explicitly testify that she continued looking for jobs after she began receiving Social Security benefits, nor did she produce any logs, other documents, testimony or other evidence detailing her efforts to find work. Without such evidence, the Court said, the commission’s decision to vacate the arbitrator’s award of maintenance benefits was not against the manifest weight of the evidence.
To read the court’s decision, click here.