WCLA MCLE Intervening Injury Breaking the Causal Connection

WCLA MCLE • Intervening Injury: Breaking the Causal Connection • Tuesday July 13, 2010 • 12: 00 pm to 1: 00 pm • Daniel F. Capron, Capron & Avgerinos • James R. Thompson Center Auditorium, Chicago, IL • 1 Hour General MCLE Credit

Issue • When is an intervening injury, accident or cause sufficient to break the chain of causation between the original work accident and Petitioner’s current condition of ill-being?

Vogel v. IIC 354 Ill. App. 3 d 780, 821 N. E. 2 d 807, 290 Ill. Dec. 495 (2005) • DA 7 -10 -98; cervical fusion 3 -12 -99; 3 MVA’s 6 -9 -99, 4 -7 -00, 6 -8 -00; failed fusion; needs more surgery • Treater Dr. Boury says cause is AA 6 -9 -99; IME Dr. Skaletsky : “inherent biological reasons” • Arbitrator says no causal connection because MVA’s further aggravated condition; IWCC affirms • Circuit Court reverses: contrary to law & manifest weight; MVA’s did not break chain of causation; MVA’s are concurrent causes • IWCC enters award & prospective medical; Circuit Court confirms

Vogel v. IIC • Appellate Court: “When the claimant’s condition is weakened by a work-related accident, a subsequent accident that aggravates the condition does not break the causal chain. ” • When Petitioner was involved in the first MVA, he was not fully recovered from his injury (still treating and not returned to full duty) • Condition “could not have developed but for the surgery” • Treater’s opinion reveals “concurrent cause; ” subsequent MVA’s did not change “the nature of the injury” • “(T)he fact that other nonwork-related accidents may have aggravated claimant’s condition is irrelevant”

Cases Citing Vogel • Weyer v. IWCC, 387 Ill. App. 3 d 297 (2008): Vogel does not help Petitioner in 2 nd 19(b) to prove causation to original accident; Arbitrator found that shoulder injury had “resolved” prior to 2 nd 19(b) • Global Products v. IWCC, 392 Ill. App. 3 d 408 (2009): Smoking cigarettes was not an intervening cause under Vogel; it does “not completely break the causal chain…so long as a but-for relationship exists between the original event and the subsequent condition, the employer remains liable”

Recent IWCC Cases Citing Vogel • Kloepping v. Honeywell, 10 IWCC 0283 & 0284: Vogel analysis used to maintain causal connection to first work injury and not second work injury (both repetitive trauma) • Biegler v. Professional Therapy, 10 IWCC 0209: Petitioner hurts her back at work and then has increased pain squatting to leash dog at home; Vogel analysis used to maintain causal connection; Respondent has burden of showing dog incident had “lasting effect” and broke chain

Recent IWCC Cases Citing Vogel • Mc. Niff v. Mc. Donald’s, 10 IWCC 0156: Vogel analysis used to maintain causal connection despite ER visit for same left knee 3 months after original injury date while working for another employer; ER notes refer to “previous injury” • Naughton v. City of Chicago, 10 IWCC 1390: Majority decides causal connection, but dissent distinguishes Vogel and says that Petitioner had been released at MMI prior to report of pain and swelling the “night before” (2 years after original DA)

Ronald Conklin v. ABF 02 WC 029641 • 3 -2 -02 : DA Truck driver fell off truck injuring shoulder, neck, & back (prior lumbar fusion 9 -01) • 4 -11 -02: Released to RTW light duty 4 -11 -02 (did not do so) • 4 -14 -02 : Motorcycle accident on 4 -14 -02 (5 day hospitalization) • 5 -2 -02: Follow up with Dr. Bernstein who did prior fusion • Treatment included morphine pump • 12 -9 -02: IME Dr. Marc Levin • 5 -24 -04: Arbitrator Galicia finds no causal connection; Petitioner had “recovered sufficiently to feel capable of operating a motorcycle…classic example of intervening and superceding event. ”

Conklin v. ABF 05 IWCC 0181 • 3 -17 -05: Unanimous Commission (Pigott, De. Munno, Basurto): Decision of the Arbitrator is affirmed and adopted • 3 -24 -06: Judge Rita M. Novak, 05 L 50373: Confirmed on denial of shoulder, but reversed and remanded on denial of back; “(T)he medical evidence uniformly supports a finding that the motorcycle accident aggravated but did not change the nature of the low back injury…did not suffer an intervening accident that broke the chain of causation between his work accident and low back condition, as that term has been defined by the case law. ” • 12 -6 -06: ABF v. IWCC, No. 1 -06 -1072 WC; Appellate Court dismisses Respondent’s appeal, “non-final order”

Conklin v. ABF (II) 08 IWCC 0150 • 2 -7 -08: Unanimous Commission (Mason, Rink & Lindsay): Petitioner established a causal connection between his undisputed work accident of March 2, 2002 and his lumbar spine condition of ill-being; motorcycle accident did not sever the chain of causation; Petitioner’s treating doctors viewed the work accident as one of several factors contributing to the lower spinal condition and Respondent’s IME’s did not discount the work accident • 10 -23 -08: 08 L 50243, Judge Gardner: Confirmed

ABF v. IWCC No. 1 -08 -3074 WC (Rule 23) • 2 -9 -10: Hoffman, Mc. Cullough, Hudson, Holdridge & Donovan • Every natural consequence that flows from an injury is compensable unless an independent intervening act breaks the causal connection • “A nonemployment-related factor which is a contributing cause with the compensable injury in an ensuing injury or disability, however, does not constitute an intervening cause sufficient to break the causal connection” • Where the claimant’s condition was weakened by the employment injury, a subsequent accident that aggravates the condition does not break the causal chain • Distinguishes cases in which Petitioner had returned to work and stopped receiving substantial medical treatment • Riding motorcycle is not an injurious practice under Section 19(d) (What about waiver argument? )