The court in Steak and Shake vs the Worker’s Compensation Commission addressed what is now a common issue in politics. Groups in Illinois wish to limit liability for workers’ compensation claims by only allowing the case to be compensable if it is the “primary cause” of the condition. This naturally sounds reasonable to people in the public. Why shouldn’t the primary cause be the test?
What people fail to appreciate is that “primary cause” in workers’ compensation claims really means eliminating aggravations of pre-existing injuries as claims. The Steak and Shake case is it is a good example of why suing “primary cause” as a test is unreasonable to older claimants and eliminates legitimate claims involving pre-existing condition conditions.
In Steak and Shake vs. Illinois Worker’s Compensation Commission the petitioner was the manager for Steak and Shake. She was busing tables to keep customer flow moving. As she was wiping down the table she felt and heard a large pop in her right hand. She immediately felt excruciating pain that began in her thumb and radiated across her hand.
Petitioner treated for her hand condition and eventually had a surgery called a right thumb arthroplasty. Following that, she had surgery to remove one of the pins. Following the second surgery, she testified her right thumb was useless. The arbitrator and commission both awarded benefits. Respondent appealed to the appellate court affirmed the findings below. The appellate court affirmed the decisions below, so the worker won her benefits.
In Steak and Shake the Employer claimed the injury was pre-existing. It hired a witness doctor to examine her x-ray and conclude she had pre-existing arthritis. The defense Dr. claimed that wiping down the table would not be a significant enough trauma to alter the natural progression of a likely degenerative arthritic condition and her thumb. In other words, she had arthritis before, and it is the underlying disease that caused her problems, rather than the act of wiping the table. As indicated above, this was rejected by the commission and the court.
However, if the pro-Governor Rauner forces get their way, the worker will lose cases like this. Gov. Rauner, with his turnaround agenda, now says he wants workers’ compensation reform to be the primary goal. The “primary cause test” is one of the biggest changes his administration seeks for workers’ compensation reform. Not only would the result of this case change, any case involving underlying degenerative changes would be very difficult for the victim to win.
People frequently have back conditions that are either asymptomatic or minimally symptomatic until they get hurt at work. If you look at their x-ray they will have underlying degenerative changes. People get degenerative changes as they age. By the time someone is 50 just about everyone has underlying degenerative changes which are visible on an x-ray. The amount of the generative changes varies significantly. However, many people have degenerative changes and never know it. However, if they fall and get hurt those degenerative changes contribute to their pathology. A doctor may look at the x-rays and say that the degenerative changes are the primary cause. If the person was 30 years younger and did not have the degenerative changes to their body they would have been fine. However, a 50-year-old gets hurt when they fall, at least in part because their body has degenerated as they age. They have degenerative changes. In Illinois, we just must prove that the fall was a cause of the problem – not the only cause. This is how the law should work.
If primary cause is the test, doctors can testify that the things going on in the body that you don’t know about are the primary cause of many traumatic maladies. If an older patient’s bone structure were better, you would not a fractured the bone. Anyone with osteoporosis is now blamed for the fall. It was the osteoporosis that caused the person to fractured something. If you have underlying degenerative changes in your spine, that is the problem, not the fall.
As a workers’ compensation lawyer, I already get these arguments from workplaces attorneys. Defense doctors review medical and claim that the degenerative changes in the spine are the cause. They find doctors that you do not understand legal causation or ignore the legal definition. Some make millions testifying as an expert witness. They often base their entire defense on the cause of the injury, like the Steak and Shake defense. If the pro-Gov. Rauner people get their way, many cases with older victims become extremely difficult to win for the victim because the defense will be able to claim the primary cause is the older person’s degenerative changes.
Jim Ackerman actively fights the extremist changes Rauner and his minions seek to run through the legislature. You should too.