5-1-12; The IL WC Commission Giveth to Casino Dealers and Taketh Away from Prison Guards
/As fast as we see the great reporters at the Belleville News-Democrat telling everyone the newly appointment Arbitrators are backing off and denying WC benefits for at least seven prison guards in southern IL, we are stunned to see Illinois casinos getting whacked with impossible-to-understand CTS claims.
There is a saying in Latin that describes a logical fallacy and which goes: post hoc ergo propter hoc. This saying describes false reasoning that is used to incorrectly conclude there is a causal connection when one event merely follows after or occurs simultaneously with another one. In other words, the person who uses this reasoning will incorrectly conclude the first event must have caused the second. Using this faulty thought process, a person would say something like, "It always rains when I don’t have an umbrella." The incorrect inference from this statement is the failure to bring an umbrella can cause rain. In medicine and law, one would hope a conclusion of causation would absolutely require one event be the direct consequence of another and not rely merely on an observation of coincidental events happening in sequence or at the same time.
Unfortunately, faulty reasoning about causation is sometimes used to explain the cause of injuries in personal injury cases, including workers’ compensation cases. In such cases, Plaintiff or Petitioner reasons backwards and uses coincidences or simultaneously occurring events to explain causation. By using such retrospective reasoning, almost every employee can attribute carpal tunnel syndrome—a neurologic problem from repetitive use of the hands--to a repetitive “trauma” at work, since using one’s hands is almost always required at work.
A reading of the IWCC ruling in Genovese vs. Boyd Gaming makes one wonder if such a logical fallacy won the day for a Petitioner when she used proof of her card shuffling on a gambling river boat called Par-A-Dice to prove she had experienced a repetitive trauma “accident” to her hands that somehow caused carpal tunnel syndrome.
One of the contested issues in Genovese was causation, and the question was whether Petitioner’s card-handling was a work-related “accident.” In other words, did a “repetitive trauma injury” from work actually cause her carpal tunnel syndrome? According to her testimony, Petitioner worked on the Par-A-Dice gambling boat since 1995 but she had not developed any sign of carpal tunnel syndrome until 2007. Beginning in 2009, she started to train to deal cards at the poker tables. After she started dealing cards, she claimed her symptoms got worse. She indicated shuffling cards required her to use both hands and she used her left hand to push the cards out of the “shoe” or automatic shuffling machine for some games. All of the games required frequent handling, counting, and changing of chips and money.
She ultimately came under the care of an orthopedic surgeon who later testified her card-dealing contributed to her carpal and cubital tunnel syndromes. He emphasized card-dealing required “very repetitive” motions of the hands and arms that could result in the two diagnoses. In response, we point out most card-dealing at casinos should actually be called “card-pushing” for the actions dealers make in moving the card from the shoe to the playing table.
An Independent Medical Examiner (IME) disagreed with Petitioner’s orthopedic surgeon. The IME physician found Petitioner’s pain was atypical and it did not fit the anatomic pattern of carpal and cubital tunnel syndromes. He testified her complaints were not consistent with the two diagnoses. Notably, he pointed out her coincidental and personal diagnosis of hypothyroidism could be a cause of her carpal and cubital tunnel syndromes.
There is probably no surprise as to which side won the “poker hand” in this case. Ultimately, the Arbitrator and later the Commission awarded the chips to Petitioner when they ruled she established her card-shuffling constituted a “repetitive trauma” that contributed to her carpal/cubital tunnel syndromes.
In reaching this conclusion, the Arbitrator adopted the causation opinion of Petitioner’s orthopedic surgeon, who testified card-shuffling caused the problems since it was, “very repetitive.” However, by accepting this conclusion, the Arbitrator also had to discard the IME physician’s scientific explanation Petitioner’s pain was “atypical” and did not follow the usual “anatomic pattern” necessary to scientifically support the two diagnoses. After reading this opinion, one is left to wonder whether a retrospective analysis resulted in the application of post-hoc-ergo-propter-hoc reasoning and caused Petitioner to recover in this case, even though her card shuffling was not really an injury-producing or work-related “accident” in Par-A-Dice.
Our problem is the same concern we have in the situation with prison guards—if we reward humans with expensive WC benefits for routine activities, it gives private business strong incentive to get rid of the humans and robotize us out of the equation. We are already certain Illinois’ casino managers have made many changes to card-dealing to make it as ergonomic as possible. We are going to have to carefully watch to see if they take the next step.
We appreciate your thoughts and comments. This article was researched and written by Ellen Keefe-Garner, JD, RN, BSN. Please do not hesitate to reply directly to her at emkeefe@keefe-law.com.