Synopsis: The Appellate Court of Illinois, Workers’ Compensation Division takes another mighty leap toward, and arguably beyond, the Positional Risk Doctrine in the Tazewell County ruling. Tazewell Country v. The Illinois Workers’ Compensation Commission, et. al., 2025 Il App (4th) 230754WC. Thoughts and opinions by John Campbell, JD and Shawn Biery, JD.
Editor’s Comment: Petitioner Potts worked as a dental hygienist for Tazewell County, performing teeth cleaning and sealing patients’ teeth which involved what she described as “a lot of hunching over” patients where her arms would be held at approximately shoulder level while working. Hired in 2005, she asserted she began to feel pain in 2019 while her arms were elevated in this capacity. She described pain progressing throughout the work week. An MRI revealed a small full-thickness distal supraspinatus tendon tear and small labral tear with impingement of the rotator cuff. Pursuant to an orthopedic consultation, surgery followed.
Of particular note, and central to the defense argument, Petitioner never specifically described a work injury and even stated she was not making a workers’ compensation claim initially. In fact, the lead orthopedic surgeon completed a disability form and documented that the left shoulder conditions were not due to injury or sickness arising out of the claimant’s employment.
Thereafter, the surgeon offered further opinion that the work activities “were a contributory cause of pain at her left shoulder” based on pre-existing rotator cuff pathology. Therefore, the doctors did not attribute the shoulder tears to work… only the pain from the condition, which was pre-existing.
The IME examining physician offered a consistent diagnosis but also pointed out that the job duties would not cause, accelerate or permanently aggravate the rotator cuff condition and as such, did not contribute to the injury or need for surgery. He was clear in his opinion that the manifestation of pain itself at work was temporary, but the condition was pre-existing and not related.
Arbitration/IWCC Panel/Circuit Court and Appellate Court Rulings:
This claim was initially denied at arbitration, however the Commission panel reversed on review, finding sufficient evidence of a repetitive trauma injury. In support of their ruling, the Commission panel appeared to find causation without any clear evidence of acceleration of the underlying condition. It was sufficient that Petitioner simply felt pain at work and as such, this was enough of an aggravation to trigger compensability.
Upon further review, the IL Appellate Court, WC Division noted a split in other jurisdictions on this question and acknowledged it was a case of first impression as to whether pain alone can substantiate a compensable accident. Ultimately, the Court affirmed the Commission ruling with partial reliance on the principle in Sisbro, Inc., that causal connection is established if the work injury can be shown to have played a role in aggravating or accelerating a preexisting condition. The Court reasoned that “when a preexisting condition is asymptomatic and then becomes painful as the result of work-related activity, that symptomatic condition is compensable under the Act as an aggravation of the preexisting condition even in the absence of an organic or structural change in the preexisting condition. When a preexisting asymptomatic condition becomes painful for reasons other than an organic or structural change or natural progression, it follows that the preexisting condition was aggravated by something. If the aggravation is work-related… we hold that the pain suffered is, in and of itself, a compensable aggravation of the preexisting condition.”
We would be remiss to forego mention of Justice Mullen’s well-reasoned dissent. He points out that the majority’s reliance on Sisbro is misplaced, in as far as Sisbro demands that where a preexisting condition exists, recovery depends on the employee ability to show a work-related aggravation or acceleration of that preexisting condition. There is a notable absence of any evidence that the rotator tears in this case were aggravated or accelerated by work. There was simply pain when using the arm based on a pre-existing condition identified and agreed by all doctors.
Editor’s Further Comment:
From Respondent’s perspective, this is an alarming ruling which greatly expands the concept of an “accident or injury” under Illinois legal jurisprudence. We suspect this is ripe for certification to the Illinois Supreme Court, but we shall see.
We have a number of questions but let’s start with a simple one; if all doctors agree that the shoulder tears were not caused by work duties and not even accelerated at all by work duties, why is the medical treatment and disability found to be legally related? How can any employer defend any case as long as the employee simply claims pain while working in the presence of a pre-existing condition?
If an employee’s first headache or torso pain from manifestation of cancer is experienced while at work, does that make the cancer a work-related disease?
Does the aging, de-conditioned attorney, sitting at his office computer 10 hours per day writing newsletter articles have a compensable claim for back surgery due to degenerative disc disease because the pain allegedly manifested for the first time at work? Does anyone need health insurance anymore as long as you have a job?... just say it all started at work.
We could go on and on with more absurd examples, but we digress; you get the point. We find this to be a poor ruling that greatly expands compensability in ways completely unintended by our legislature based on the plain language of the Act as well as decades of prior legal jurisprudence that never entertained simple pain as a compensable “injury”.
In light of this ruling, it is perhaps more important than ever to conduct a thorough accident investigation and utilize experienced legal defense counsel to develop possible defenses based on pre-existing causes and treatment.
If you have questions or concerns, contact John Campbell at jcampbell@keefe-law.com. You can reach Shawn Biery at sbiery@keefe-law.com.
We appreciate your thoughts and comments. Please post them on our award-winning blog.
Synopsis: Wacky New IL WC Legislation That Is Continuing the Trend of Ending the Need for Lawyers on All Sides.
Editor’s comment: IL Statutes Amended In Order of Appearance
820 ILCS 305/6
from Ch. 48, par. 138.6
Synopsis As Introduced
This new and unprecedented legislation amends the IL Workers' Compensation Act to make defense of a class of future IL WC claims impossible to defend. As I have advised, when work injuries are impossible to defend, employers don’t want their employees to go to claimant lawyers and won’t want to have “defense” attorneys if defense is completely impossible. The insurance carriers and self-insured administrators are going to have workers in these job classes fill out forms and pay whatever is needed to avoid any need for claimant lawyers, defense lawyers and hearing officers. Why would a government need a defense attorney to represent them in an indefensible setting?
If this legislation becomes Illinois law, it provides that the rebuttable presumption concerning specified conditions or impairments of health of an employee employed as a
Firefighter
Emergency medical technician
Emergency medical technician-intermediate
Advanced emergency medical technician or
Paramedic
Is openly intended to totally shift the burden of proof to the “employer” or employing entity. In most cases, this is going to apply to local governments who hire the employees in the classes above. Local taxes are certain to spiral way up under this legislation.
Any party seeking to defend the new presumption must establish by clear and convincing evidence an independent and wholly non-work-related cause for the condition or disability and prove that no aspect of the employment contributed to the condition.
The proposed law provides that the rebuttable presumption in the IL WC Act relating to hearing loss cannot be overcome with evidence allegedly showing that the injured employee did not meet specified exposure thresholds. Please note this new proposed law is going to make most local governments owe the described workers for a lifetime of “free” or taxpayer paid hearing aids for the workers employed above.
One way to counter this new legislation, if it becomes law, is to start combining your workers into “Public Safety” workers that provide dual and triple certification for your workers and quietly limit your workforce. Trust me, the number of live fires in your town are minimal. “Firefighters” rarely fight fires but they don’t want you to know that. Fire codes have greatly ended or limited the number of live fires across the U.S. This union-backed legislation is going to continue to make “firefighting” and EMT costs dramatically higher. If you have interest in this cost-cutting approach, send a reply to Gene Keefe at ekeefe@keefe-law.com.
We appreciate your thoughts and comments. Please post them on our award-winning blog.
