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Employer Beware: The Duty to Preserve Evidence in Illinois

When an employee is involved in a work-related accident, especially one involving a machine, tool or other mechanical device, employers can be confronted with difficult questions regarding preservation of evidence. Employers, and their insurers, should have a good understanding of the importance of preserving evidence and a plan in place to ensure proper action is taken when an accident happens.

An employer’s proper preservation of evidence serves at least two important 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 her employer. In Schusse v. Pace Suburban Bus, 334 Ill.App.3d 960, (1st Dist. 2002), the appellate court held that an employee’s claim for negligent spoliation against his employer was not barred by the exclusive remedy provision of the Illinois Workers’ Compensation Act. Second, preserving evidence protects the employer’s ability to pursue subrogation against other potential at-fault parties, such as product manufacturers, installers and vendors.

When does an employer need to preserve evidence? In order for a duty to preserve evidence to exist, the Illinois Supreme Court has 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. Second, there must be a showing that a reasonable person in the employer’s position should have foreseen that the evidence was material to a potential civil action. If both prongs of the test are not satisfied, there is no duty to preserve evidence.

The Michelangelo Syndrome

Peter J. Stavropoulos recently preserved a "zero" award saving his client $83,097.50 in past temporary total disability; a future stream of TTD at $966.25 per week; $35,165.28 in medical expenses already incurred, and future medical cost including a two-level cervical fusion.

Petitioner argued that his job duties required him to look up while painting a ceiling for eight hours daily over 5 months. The Arbitrator found him not to be credible siding instead with the employer's witnesses Peter adduced. They testified concerning the variety of duties performed by petitioner and the amount of time he spent not paining at all. Moreover, pre-trial investigation Peter conducted with the help of the adjuster allowed him to demonstrate to the Arbitrator that petitioner was a convicted felon and served 14 years of a 37-year sentence for murder and arson. Based on this investigation, Peter showed the Arbitrator that petitioner had, in fact, lied on his employment application.

After finding against petitioner on the issue of accident, the Arbitrator also considered whether the neck condition in question was caused or aggravated by any work activity (ceiling painting or otherwise). He disregarded the opinions of petitioner's chiropractor, concluding his testimony revealed he did not understand petitioner's job duties, nor even had a firm diagnosis. The Arbitrator also discounted the testimony of petitioner's treating orthopedic surgeon, Dr. Lorenz, whose answers to Mr. Stavropoulos' cross-examination showed he misunderstood, completely, petitioner's job duties.

Making Change Work: Utilization Review

Changes to one cost containment measure in 2011, Utilization Review, "UR", reflected Springfield's ongoing intent that health care providers treat reasonably. To name just one undesirable result of excessive care, its billing can make cases impossible to settle. One workers' compensation insurance carrier, Country Insurance and Financial Services, convinced that extensive care had obstructed enough negotiations, determined to innovatively apply UR.

Working with Brady, Connolly & Masuda, P.C., Country formulated an approach allowing settlement of the Comp case leaving bills for unreasonable care unpaid. As part of the accord, Country agreed to protect the injured worker if he was sued by the provider post contract approval and to afford a defense.

Two such settlements have resulted in civil lawsuits requiring County to step in for the worker. In the first, involving a claim for over $100,000.00 in fee bills, the providers have, at least at this point, dropped their attempt to collect from the worker, and in fact have voluntarily dismissed their lawsuit. The second involved a great deal less in fees but resulted in an actual hearing under the Mandatory Arbitration procedures of the Circuit Court of Cook County. After listening to the testimony of numerous witnesses, including the injured worker and personnel from the provider, the panel awarded the providers nothing, finding entirely in favor of the injured worker (and, of course, through him for Country).

Making Change Work: AMA Standards

In an effort to reduce costs to business and ensure predictability in permanent disability awards, the Illinois Legislature in 2011 required the Commission to consider five factors in determining permanent disability:

  1. impairment rating pursuant to the 6th Edition of the American Medical Association guidelines;
  2. the occupation of the employee;
  3. the age of the employee at the time of the accident;
  4. the employee's future earning capacity; and
  5. evidence of disability corroborated by the treating medical records.

The Commission was cautioned that "no single enumerated factor shall be the sole determinant of disability." While the Commission is tasked with considering the evidence introduced on each factor, there are some trends developing on which weighs heaviest.

Closing Files

April 2013

By Francis M. Brady

"This file has been open for six years!"

"I had this case as an adjuster and now I have it back again as a supervisor!"

"Isn't there some way to get this file heard!"

If you are doing business in Illinois, or representing those who are, you likely have heard similar sentiments, or even expressed them yourself. Illinois employers and those of us who assist them, come into contact frequently with the Illinois Workers' Compensation Commission (IWCC). The IWCC system does not universally lend itself to the expeditious disposition of litigation.

This article considers one way to overcome institutional inertia.

The age of the case at the IWCC often not does match the age of the file in your claim drawer. A lengthy period of time can elapse between the accident and the date the worker files his case. As a general rule, an injured worker has three years from his accident to file with the IWCC. Even then, petitioner is under no compulsion to press his case for another three years.

Pro Se Settlement Procedure From Chairman Weisz

From Chairman Weisz:

I understand that as a matter of accommodation, settlement contracts on pro se matters are routinely approved by Arbitrators before being assigned a case number. Our research indicates this happened over 3,500 times in Calendar Year 2010.

The Commission is extremely sensitive to the needs and desires of injured employees and businesses to get files approved and closed quickly; however, the present system does not allow us with a way to determine if any of those contracts go astray and fail to get entered into the system.

  • Chicago Bar Association
  • Workers' Compensation Lawyers Association
  • IRTB
  • DRI - The Voice of the Defense Bar
  • The Illinois Association of Defense Trial Counsel
  • Illinois Self-Insurers' Association
  • Chicago Bar Association
  • Workers' Compensation Lawyers Association
  • IRTB
  • DRI - The Voice of the Defense Bar
  • The Illinois Association of Defense Trial Counsel
  • Illinois Self-Insurers' Association
10 South LaSalle Street, Suite 900
Chicago, IL 60603
Phone: 312-425-3131
211 Landmark Drive, Suite C2
Normal, IL 61761
Phone: 309-862-4914
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