Durand v. Industrial Com'n

• Decision Date: 19 October 2006
• Docket Number: No. 101109.,101109.
• Citation: 224 Ill.2d 53,308 Ill.Dec. 715,862 N.E.2d 918
• Parties: Deana DURAND, Appellant, v. The INDUSTRIAL COMMISSION et al. (RLI Insurance Company, Appellee).
• Court: Illinois Supreme Court

862 N.E.2d 918

224 Ill.2d 53

308 Ill.Dec. 715

Deana DURAND, Appellant, v. The INDUSTRIAL COMMISSION et al. (RLI Insurance Company, Appellee).

No. 101109.

Supreme Court of Illinois.

October 19, 2006.

Rehearing Denied January 22, 2007.

Jay Janssen, Chris Doscotch and Patrick J. Jennetten, Peoria, for appellant.

John A. Maciorowski, Theodore J. Powers and Robert P. Sabetto, of Rusin, Maciorowski & Friedman, Ltd., Chicago, for appellee.

OPINION

Justice FITZGERALD delivered the judgment of the court, with opinion:

Deana Durand filed a claim for benefits under the Workers' Compensation Act (see 820 ILCS 305/1 et seq. (West 2004)) after she developed carpal tunnel syndrome. The Illinois Industrial Commission¹ found that Durand's injury manifested itself more than three years before she filed her claim, and thus her claim was time barred. See 820 ILCS 305/6(d) (West 2004). The trial court confirmed the Commission's decision, and the appellate court affirmed the trial court's decision. The central issue in this case is whether the Commission's decision was against the manifest weight of the evidence. For the reasons that follow, we reverse and remand.

BACKGROUND

In 1990, Durand was hired as a clerical worker at RLI Insurance Company (RLI), and in 1993, she became a policy administrator. As a policy administrator, Durand scanned insurance policies into a computer and typed on a computer keyboard for several hours each day. On January 29, 1998, Durand informed her supervisor that she noticed pain in her hands several months earlier, in September or October of 1997, and that she believed the pain was work-related. Durand continued working, and the pain in her hands increased. She eventually sought medical help.

Dr. Lestel Escorcia examined Durand on August 15, 2000. In her notes, Dr. Escorcia stated that Durand reported hand and wrist pain radiating up to her elbows and constant tingling and numbness in her fingers and hands. These symptoms had continued "on and off" for 1½ years. Durand told Dr. Escorcia that she had worked at a computer keyboard for seven to eight years, and Dr. Escorcia concluded that Durand's hand and wrist pain were "probably carpal tunnel." She referred Durand to Dr. Gregory Blume for a nerve study to confirm this preliminary diagnosis.

Dr. Blume examined Durand on September 8, 2000. In his notes, Dr. Blume stated that Durand complained of "bilateral wrist and right elbow pain," as well as "some numbness and tingling." These symptoms had progressed for two years, deteriorating when she worked and improving when she did not. Dr. Blume performed a nerve study, or EMG test, which revealed "very mild or early right median nerve entrapment at the wrist (carpal tunnel syndrome)." He concluded that Durand's condition was, "by history, * * * very work-related."

Dr. Jay Pomerance examined Durand on November 6, 2000, at the request of RLI's insurer. In a November 8, 2000, letter, Dr. Pomerance stated that Durand mentioned "gradual onset," in mid-2000, of pain radiating from her right wrist, then numbness in her right fingers and thumb, and later numbness in her left fingers. According to Dr. Pomerance, Durand "did have prior symptoms approximately eighteen months ago but these were not that bothersome to her." Dr. Pomerance reviewed the September 8, 2000, nerve study results and agreed with Dr. Blume's diagnosis: "The patient's current clinical condition is consistent with a borderline right carpal tunnel syndrome along with pain in the left hand." Based on Durand's description of her job, however, he suggested no activity restrictions. In a November 20, 2000, letter, written after viewing a videotape of Durand at work, Dr. Pomerance stated, "I would not expect this job to cause or aggravate upper extremity pathology such as carpal tunnel syndrome." There was no causal relationship, according to Dr. Pomerance, between Durand's work activities and her carpal tunnel syndrome. Dr. Pomerance's deposition testimony was consistent with his notes.

Dr. Conner, an orthopedic surgeon, first examined Durand on November 29, 2000. In his notes, Dr. Conner stated that Durand had worked at RLI for more than nine years, performing "continuous computer entry work during her eight-hour shift." According to Dr. Conner, she "developed problems with both arms six or seven months ago." Dr. Conner noted that Dr. Blume had performed a nerve study and diagnosed Durand with "mild early right median nerve entrapment or carpal tunnel syndrome." Dr. Conner's impression was "[b]ilateral carpal tunnel syndrome," which from her history apparently developed "secondary to her work activity." Dr. Conner again examined Durand on December 20, 2000. In his notes, Dr. Conner stated that Durand had met with Dr. Pomerance:

"From her description to me she tells me that 90% of her work was using the computer. In [Dr. Pomerance's] letter this part of it was down played considerably, but on discussing it with her she tells me that the majority of her work is computer activity. Thus as I thought previously in my opinion her carpal tunnel [syndrome] is caused or aggravated by her work."

The following week, Durand scheduled surgery with Dr. Conner.

On January 12, 2001, Durand filed an application for benefits with the Industrial Commission, asserting that she had experienced "serious and permanent" injury to "both wrists and upper extremities" from "repetitive data entry" for RLI. Durand's application listed September 8, 2000, the date Dr. Blume performed the nerve study and conclusively diagnosed her carpal tunnel syndrome, as the date of the accident. Dr. Conner performed surgery to repair Durand's right median nerve on February 12, 2001 and her left median nerve on June 4, 2001.

Dr. Robert Martin examined Durand on August 7, 2001, at the request of her attorney. In an October 29, 2001, evidence deposition, Dr. Martin testified that Durand told him she had worked at a computer keyboard for 6½ hours each day for the past eight years. Two years earlier, she developed pain in both wrists, as well as numbness in her fingers. According to Dr. Martin, carpal tunnel syndrome generally manifests itself as "either numbness, tingling or pain and combinations thereof," and these symptoms continue if the employee experiencing them continues to perform the same work. Dr. Martin testified that if Durand had experienced such symptoms in 1997, they "certainly could have been" a manifestation of carpal tunnel syndrome. Dr. Martin opined that Durand's work activities contributed to her development of carpal tunnel syndrome.

On May 9, 2002, an arbitration hearing was held. Durand testified that she never had hand or wrist problems before she worked for RLI. On cross-examination, RLI's attorney asked Durand about her January 29, 1998, conversation with co-worker Karen Andell:

"Q. * * * [D]o you recall telling [Andell] * * * that your symptoms in your hands, right and left, started in September or October of 1997?

A. I could have.

Q. Do you recall having a problem at that time?

A. I guess I could have, but I didn't know at the time what it was.

Q. Do you recall telling Ms. Andell that you told your supervisor at that time that you believed the condition was work-related?

A. This was back in '98?

Q. Yes, January 29th, 1998, that you recall reporting the incident —

A. Oh, yes.

Q. So, in your mind you believe that your condition back in September or October of '97 was work-related?

A. Yes.

Q. And your job duties remained the same thereafter; is that correct?

A. Yes."

On redirect examination, Durand reiterated that she felt her pain was work-related in 1997:

"Q. And that opinion that you gave, was that your opinion, was that an opinion that had been given to you by your doctor? How did you reach that opinion?

A. It was my opinion, because of the pains I was having.

Q. That was your expert opinion?

A. Yes."

On re-cross-examination, Durand again discussed her symptoms in 1997. Durand repeated that she told her supervisor that she was convinced her condition was work-related.

Again, on redirect examination, Durand stated that, at that time, no doctor had diagnosed carpal tunnel syndrome. On re-cross-examination, RLI's attorney asked:

Q. Did you think you had carpal tunnel then from what you knew?

A. I wasn't sure because it wasn't real constant and real severe at the time.

Q. You had heard of carpal tunnel syndrome, though; is that correct?

A. I think I might have heard of it.

Q. And you knew people who had it or had had it?

A. Yes.

Q. And it was your belief that you had that condition and you felt that it was due to your job duties; is that correct?

A. Yes."

In a June 4, 2002, decision, the arbitrator found that Durand sustained a repetitive-trauma accident caused by her work. Further, according to the arbitrator, "While [Durand] had experienced symptoms of carpal tunnel syndrome well before * * *, the first time that she had received an EMG, and been officially diagnosed with carpal tunnel syndrome was September 8, 2000." The arbitrator decided that Durand's claim fell within the limitations period and awarded her medical expenses, as well as weekly compensation for temporary total disability and permanent partial disability in her right and left hands.

On July 18, 2002, RLI filed a petition for review, and on September 12, 2003, the Industrial Commission reversed the arbitrator's decision. The Commission found that Durand used a keyboard for approximately six hours per day. The Commission reviewed her testimony about when her symptoms appeared. Durand stated four times during the arbitration hearing that she experienced pain in her hands and wrists in September or October of 1997 and that she believed this pain was work-related. The Commission stated: "Upon reviewing the events of September 8, 2000, the Commission finds that with the exception of [Durand] undergoing an EMG test, there was no specific event that took place on...