Heyl Royster


Heyl Royster


Appellate Court Rejects Request to Abandon Intervening Act Theory


By Brad Elward, belward@heylroyster.com

The recent decision of Par Electric v. Illinois Workers’ Compensation Comm’n, 2018 IL App (3d) 170656WC appears on its face to simply involve application of the long-established law regarding intervening acts. According to case law, under an independent intervening cause analysis, compensability for an ultimate injury or disability is based upon a finding that the employee’s condition was caused by an event that would not have occurred “but for” the original injury. International Harvester Co. v. Industrial Comm’n, 46 Ill. 2d 238, 245 (1970). That the other event may have aggravated the employee’s condition is irrelevant. Vogel v. Illinois Workers’ Compensation Comm’n, 354 Ill. App. 3d 780, 786 (2d Dist. 2005). An employer is relieved of liability only if the intervening cause completely breaks the causal chain between the original work-related injury and the ensuing condition of ill-being. Global Products v. Illinois Workers’ Compensation Comm’n, 392 Ill. App. 3d 408, 411 (1st Dist. 2009).

Par Electric involves an employer's challenge to the intervening act theory in cases where the subsequent accident occurs while the petitioner is working for another employer. In that case, should the Commission look at the case from the prospective of the first employer, thus utilizing the intervening act analysis, or should the Commission consider the second employer and the doctrine that an employer takes an employee as it finds him (pre-existing condition)?

Par Electric resolves this issue.

Background Facts

In Par Electric, the petitioner worked as an apprentice lineman through the International Brotherhood of Electrical Workers. On June 16, 2014, claimant was assigned to work for Par Electric building new lines. On that date, as the petitioner was getting out of a bucket lift, he slipped and attempted to catch himself by grabbing something when he felt his right shoulder come out of the socket, resulting in significant pain.

The petitioner was diagnosed with a right rotator cuff strain, placed on modified duty, and eventually underwent physical therapy. Nevertheless, he continued to experience pain with overhead activity and certain shoulder motions, which led his physician to order an MRI of the right shoulder. The MRI suggested a diffuse labral tear, but no rotator cuff tear.

The petitioner was referred to Dr. Lawrence Li, an orthopedic surgeon, for further treatment. He diagnosed a right shoulder labral tear due to dislocation and later performed a right shoulder arthroscopy with debridement of extensive tenosynovitis and repair of a capsulolabral Bankart-type separation. By mid-January 2015, the petitioner reported to his physical therapist that the pain in his right shoulder was at level two on a ten-point scale.

In February 2015, the petitioner was evaluated by Dr. George Paletta and at that time was still experiencing mild discomfort to the anterior aspect of the shoulder, but reported making significant improvement in work conditioning. Upon physical examination, Dr. Paletta noted that claimant demonstrated minimal motion losses, excellent strength and function, and good stability. He recommended an additional two weeks of work conditioning, followed by a return to full-duty work without restriction or limitation. Dr. Paletta opined that the petitioner’s right shoulder condition was causally related to the June 2014 work accident.

The petitioner was discharged from work conditioning on March 10, 2015. At that time, the therapist recorded that claimant had progressed rapidly during the final three weeks of work conditioning, had met all of his goals, and was prepared to return to work full duty. On March 11, 2015, Dr. Li released the petitioner to full duty without restrictions and instructed him to follow up in four weeks. The petitioner testified that although his shoulder had progressed, it was still weak and painful. Nevertheless, claimant returned to work because he was released to do so and he thought that his condition would improve with work.

The petitioner was hired by Henkels & McCoy on or about March 23, 2015 and worked for Henkels as an apprentice lineman—the same position he had with Par Electric. On April 1, 2015, the petitioner was still experiencing pain and weakness in his right shoulder. On that date, he threw a large roll of electric tape to a coworker in a bucket lift. He testified that he felt his shoulder “roll and come out of [the] socket,” causing a lot of pain. The petitioner ignored the pain because he did not want to think he reinjured his shoulder. He finished his work shift, but “babied” his shoulder the rest of the day.

The petitioner returned to work the next day, although his shoulder was sore. On April 3, 2015, a Friday, he threw a wire grip to a coworker in a bucket lift. He estimated that he tossed the wire grip 15 to 20 feet. According to the petitioner, when he threw the wire grip his shoulder “did the exact same thing as it had done” on April 1 – he felt his shoulder “roll” and “come out of the socket” and he experienced pain. He finished the workday but had to “baby” his right shoulder.

The petitioner was diagnosed a labral tear with biceps anchor or SLAP lesion involvement. Dr. Paletta opined that the previous area of repair was “likely intact” and that the recent injury appeared to be “an extended labral tear that involves a new area of the labrum not previously involved with the initial tear.” Dr. Paletta found that the mechanism of injury described by claimant “would be appropriate for propagating or creating an extended labral tear.” Dr. Paletta opined that claimant had reached maximum medical improvement (MMI) following the June 2014 injury and returned to full duty and that the need for the revision surgery was “related to the more recent injury and not as a result of the initial tear from 6-16-14 which clearly involved a different part of the labrum.”

The petitioner underwent a second surgery on July 8, 2015, performed by Dr. Li, which consisted of a right shoulder arthroscopy with debridement and chondroplasty of the humeral head, arthroscopic repair of the anterior and anterior inferior labrum, repair of a SLAP tear, a biceps tenodesis, and the removal of a loose anchor.

Dr. Li—a board-certified orthopedic surgeon specializing in shoulders, hands, and knees—testified that the trauma claimant sustained as a result of the work accident in June 2014 caused inflammation of the tenosynovium tissue; damage to the glenohumeral joint of the shoulder, which is commonly referred to as the ball and socket joint; and a complete tear of the capsulolabral complex “from about two to six o’clock.” Dr. Li testified that these findings are consistent with someone who fell with an outstretched arm and whose shoulder was dislocated and relocated. Dr. Li testified that someone with this type of pathology is at “significant risk” for future dislocations. As a result, Dr. Li recommended surgery, which the petitioner underwent on September 24, 2014.

Dr. Li was asked whether claimant’s need for the second surgery and treatment resulted from the June 2014 accident or whether the accidents in April 2015 constituted intervening accidents which broke the chain of causal connection. Dr. Li testified that claimant’s condition was partly attributable to sequelae of the June 2014 injury, adding that there was some worsening of claimant’s condition from the subsequent dislocation. Dr. Li further responded:

I think the original surgery had not fully healed. The construct which he had for his shoulder at the time that he was throwing the tape and throwing the grip was weaker than he was—than it was before his first accident, and those actions caused the capsule to—well, the shoulder to dislocate and the capsule to pull away and the anchor to pull out.

So because in my second surgery I was able to see the anchor pulled out I would have to relate it to that this would be a consequence of the treatment from his first injury, so therefore I relate it to his first injury.

Par Electric, 2018 IL App (3d) 170656WC, ¶ 22.

Dr. Li further opined that because the subsequent labral tear was adjacent to the tear claimant sustained as a result of the June 2014 accident, the subsequent tear was an extension of the previous tear “up to the region of the SLAP tear” and was related to the first accident. Dr. Li also cited the proximity in time between claimant’s first accident, his release to work, and his subsequent accidents as a factor in finding causation “because it’s certainly within the time frame of incomplete healing.” Id.

On cross-examination, Dr. Li acknowledged that the extended tear was not the result of the June 2014 accident, but rather the April 2015 accidents. Dr. Li agreed that if claimant did not perform the throwing actions in April 2015, it is unlikely he would have re-dislocated his shoulder. Dr. Li also agreed that claimant did not have a SLAP tear as a result of the first accident and that the tear from the first injury did not extend as high as what would be required to perform a biceps tenodesis. Dr. Li was unaware of claimant having a history of dislocations prior to the 2014 accident.

Nevertheless, Dr. Li testified that the extension of the tear being related to the first injury is based in large part on the fact that the injuries in April 2015 loosened the anchor he installed during the first operation. Dr. Li further testified that the second surgery most likely would not have happened if the first injury had not happened.

Arbitration and Commission Decisions

The arbitrator found that the petitioner had sustained an accident on all three dates and further found that the April 1 and 3 claims were independent acts that severed causation from the 2014 accident. The Commission reversed the two April accident claims, finding that the two accidents did not constitute intervening accidents sufficient to break the causal connection and denied benefits for each date. The Commission placed sole responsibility on the original injury while the petitioner was working for Par Electric.


On appeal, the circuit court confirmed and the appellate court affirmed. But the interesting part of the case came from the arguments made by Par Electric. In support of its position on appeal, Per Electric asserted that there is a conflict between “the line of cases that hold an employer takes an employee as they [sic] find them [sic] and intervening accident cases where the subsequent work-related accidents occur.” It requested that the appellate court resolve this alleged conflict “with an interpretation that distinguishes between subsequent work-related and non-work-related accidents.” Id. ¶ 55. In other words, Par Electric argued that the intervening act analysis should not apply where the subsequent accident occurred while the petitioner was working for another employer.

According to the appellate court, employers take their employees as they find them. Id. ¶ 56 (citing Baggett v. Industrial Comm’n, 201 Ill. 2d 187, 199 (2002)). Thus, even though an employee has a preexisting condition that may make him more vulnerable to injury, recovery for an accidental injury will not be denied as long as the employee establishes that the employment was a causative factor in the resulting condition of ill-being. Par Electric, 2018 IL App (3d) 170656WC, ¶ 56 (citing Sisbro, Inc. v. Industrial Comm’n, 207 Ill. 2d 193, 205 (2003)). For this reason, the relevant inquiry in preexisting-condition cases is whether the employee’s condition is attributable solely to a degenerative process of the preexisting condition or to the aggravation or acceleration of the preexisting condition resulting from a work-related accident. Par Electric, 2018 IL App (3d) 170656WC, ¶ 56.

In arguing that there is a conflict between these two lines of cases, Par Electric asserted that under a preexisting-condition analysis, a petitioner “would not have [been] prevented … from claiming Henkels was liable for a work-related injury if he had hypothetically originally injured his shoulder at home as opposed to while working for [respondent]” whereas “the intervening accident case law, and the ‘whether work-related or not’ language cited in [intervening-accident cases], likely leads to an opposite result – that the pre-existing condition precludes a finding that Henkels is liable.” Id. ¶ 57.

The court pointed out that, although unartfully phrased, Par Electric seemed to suggest that a conflict exists between these lines of cases because recovery is permitted under a preexisting-condition analysis if the employee establishes that his or her employment was a causative factor in the resulting condition of ill-being, but under an independent intervening cause analysis, an employer is relieved of liability only if the intervening event completely breaks the causal chain between the original work-related injury and the ensuing condition of ill-being. In other words, respondent would have us limit an employer’s liability in intervening cause cases if a subsequent event was a causative factor in the employee’s resulting condition of ill-being. Id.

The appellate court rejected Par Electric’s argument, noting that it had cited no authority for such a position. “Indeed, this is clearly not the law in Illinois,” said the court, citing to International Harvester, 46 Ill. 2d at 247, where the court rejected rejecting apportionment of compensation involving multiple accidents, and National Freight Industries v. Illinois Workers’ Compensation Comm’n, 2013 IL App (5th) 120043WC, ¶ 26, where the court observed that, “Every natural consequence that flows from an injury that arose out of and in the course of one’s employment is compensable under the Act absent the occurrence of an independent intervening accident that breaks the chain of causation between the work-related injury and an ensuing disability or injury.” Par Electric, 2018 IL App (3d) 170656WC, ¶ 57. According to the appellate court, Par Electric advanced “no cogent reason to overturn this well-established precedent.” Id.

After rejecting this challenge, the appellate court went on to affirm the Commission’s decision on causation, relying on Dr. Li’s opinions, which stated that the April incidents were causally related to the original injury. According to the appellate court, the Commission’s decision was supported by the record and an opposite result was not clearly apparent.


Par Electric is an important case because it solidifies that the intervening act analysis does not change simply because the subsequent accident takes place while the petitioner is working for another employer. The Commission’s focus in such cases should be on the initial injury and whether it had placed the employee is a condition wherein he or she is susceptible to further injury. This approach makes much sense in light of traditional intervening act jurisprudence. While the arguments offered by Par Electric were unique, adoption of those positions would have led to a dual standard – one where the outcome of the intervening act analysis depended on whether the subsequent accident happen while the claimant worked for another employer. Such a ruling would have constituted a substantial departure from the traditional analysis and made the evaluation of workers’ compensation claims more difficult for all involved.