Messamore v. Industrial Com'n

• Decision Date: 22 January 1999
• Docket Number: No. 4-97-1080WC,4-97-1080WC
• Citation: 302 Ill.App.3d 351,706 N.E.2d 44,235 Ill. Dec. 784
• Parties: , 235 Ill.Dec. 784 Cheryl A. MESSAMORE, Appellant, v. The INDUSTRIAL COMMISSION et al. (State Farm Insurance Company, Appellee).
• Court: United States Appellate Court of Illinois

Page 44

706 N.E.2d 44

302 Ill.App.3d 351, 235 Ill.Dec. 784

Cheryl A. MESSAMORE, Appellant, v. The INDUSTRIAL COMMISSION et al. (State Farm Insurance Company, Appellee).

No. 4-97-1080WC.

Appellate Court of Illinois,

Fourth District,

Industrial Commission Division.

Argued Sept. 15, 1998.

Decided Jan. 22, 1999.

Roger D. Lapan (argued), Bloomington, for Appellant.

Karen L. Kendall, Brad A. Elward (argued), Bradford B. Ingram, and Craig S. Young, Heyl, Royster, Voelker & Allen, Peoria, for Appellee.

Presiding Justice McCULLOUGH delivered the opinion of the court:

Claimant Cheryl Messamore appeals the decision of the circuit court of McLean County confirming a decision of the Industrial Commission (Commission). Respondent employer is State Farm Insurance Company (State Farm). Messamore brought a workers' compensation petition based on carpal tunnel syndrome and cubital tunnel syndrome injuries, allegedly due to her work at State Farm. The arbitrator awarded Messamore 50 4/7 weeks in temporary total disability (TTD) benefits for her carpal tunnel syndrome for the periods of July 10, 1992, through August 18, 1992, and September 17, 1992, through July 27, 1993. The arbitrator awarded Messamore $85 in unpaid medical expenses attributable to the carpal tunnel syndrome, and $207.48 for 38 weeks in permanent partial disability (PPD) benefits, compensating for 20% loss of use of her right hand. The arbitrator denied Messamore's claim that she suffered from cubital tunnel syndrome caused by her work at State Farm.

The Commission modified the arbitrator's decision, awarding TTD benefits to January 29, 1993, 24 6/7 weeks. The circuit court confirmed the Commission and ordered that the overpayment of TTD benefits due to the modification be credited against Messamore's PPD award. We affirm.

Messamore is a right-handed female born in 1959. She started working for State Farm in 1980 doing data entry and secretarial work. On March 9, 1992, while at work, Messamore felt severe pain in both hands. On March 26, 1992, Dr. Herman Dick performed an electromyographic/nerve conduction velocity (EMG/NCV) test, which found no indication of right carpal tunnel syndrome or cubital tunnel syndrome. On June 19, 1992, Dr. Edward Trudeau administered an EMG/NCV test to Messamore, which indicated she suffered from mild carpal tunnel syndrome in her right wrist. There was no indication of cubital tunnel syndrome. Messamore was referred to Dr. Lawrence Nord, an orthopedic surgeon. On July 10, 1992, Nord performed a median nerve release (decompression) on her right hand.

Nord released Messamore to return to work on August 18, 1992. Upon conferring with Messamore, Nord agreed she could return to work without restrictions, provided she contacted a doctor if pain returned. According to a September 11, 1992, report by her occupational therapist, Messamore experienced increased pain, swelling, and inflammation in her hand after returning to work. On September 17, 1992, Messamore talked to Dr. Grant Zehr, the State Farm medical director, who told her not to work because it could cause further injury.

Zehr referred Messamore to Dr. Won Heum Jhee, a physiatrist. A September 24 1992, preliminary report by Jhee indicated Messamore had carpal tunnel syndrome in both her right and left extremities. Jhee recommended Messamore not return to regular work until a "hardening" program was completed. Messamore started the program, but had difficulty with it and continued to have the same symptoms, especially pain and discomfort in the right elbow. An EMG performed on December 17, 1992, showed no indication of cubital tunnel syndrome. According to the progress notes of Messamore's work-hardening program, it was terminated because of nonattendance and a lack of significant improvement in her right wrist. The work-hardening occupational therapist described a "plateau in grip strength and range of motion in [the] right wrist."

On January 27, 1993, Jhee released Messamore to return to work with restrictions. According to Messamore, when she arrived for work on February 4, 1993, Zehr told her he would recommend to personnel she be allowed to return to work with the above restrictions, but her department did not want her back until she could work without restrictions. At Zehr's request, Messamore went to Carle Clinic on February 22, 1993, and was examined by Dr. Robert Martin on March 5, 1993. Both Martin and the clinic agreed Messamore could return to work under Jhee's restrictions.

On March 16, 1993, Messamore had a discussion with Steve Sosa, who worked with the State Farm personnel department. According to Messamore, Sosa told her she could no longer work for State Farm. Sosa told Messamore that, even though she had a release from her physician to return to work, State Farm would only allow her to return part-time due to her medical evaluation, and it had no part-time work available for her.

On January 26, 1994, Messamore received another evaluation by Trudeau. It found Messamore suffered from mild cubital tunnel syndrome in the right elbow and slight cubital tunnel syndrome in the left elbow. On March 4, 1994, Nord performed surgery on Messamore's right elbow to relieve cubital tunnel syndrome pain there.

Messamore received TTD benefits from State Farm until about June 17, 1994, and did not work anywhere else. Since June 1994, Messamore has applied for several jobs, mostly secretarial in nature, but she has received no offers of employment. Most of the positions she applied for were secretarial in nature.

At State Farm's request, Messamore saw Dr. Steven Potaczek on or around June 18, 1994. Potaczek speculates Messamore might have developed cubital tunnel syndrome or an elbow injury because of her pregnancy while she was off work or by lifting her children at home. He concluded Messamore had a minimal case of carpal tunnel syndrome at best. He noted Messamore's complaints were grossly inconsistent with his observations. She moved her arms readily and was able to support her body weight on her arms momentarily. Potaczek found nothing to suggest carpal tunnel syndrome on the left side and no residual effect after the July 10, 1992, surgery or loss of function due to carpal tunnel syndrome on the right side.

The fact Messamore developed carpal tunnel syndrome in her right hand but not her left indicated to Potaczek that it was not due to her work at State Farm. Potaczek concluded that the EMG reports of June 19, 1992, through January 26, 1994, indicate she did not have cubital tunnel syndrome due to her activity at work. There was a six-month period in which there was no indication of cubital tunnel syndrome and a long hiatus before she developed indications of it. Potaczek concluded the EMG indicator of cubital tunnel syndrome was mild and did not warrant surgery.

In a letter submitted into evidence, Nord stated Messamore's right wrist pain was due to carpal tunnel syndrome as a result of her employment with State Farm. Nord further stated Messamore's right elbow pain was due to cubital tunnel syndrome, which was causally related to her work.

Messamore submitted a list of unpaid medical expenses totalling $7,534.97. The parties stipulated State Farm had paid Messamore $23,711.66 in TTD benefits at the rate of $230.53 per week. These payments covered the time off from the first surgery on July 10, 1992, up to Potaczek's exam on or around June 18, 1994.

On December 1, 1995, the arbitrator found Messamore's cubital tunnel syndrome was not related to her employment and denied all claims for medical treatment associated with this condition. The arbitrator relied upon the June 19, 1992, EMG, the delay after Messamore left work and before symptoms of cubital tunnel syndrome arose, and Potaczek's opinion. The arbitrator awarded Messamore TTD in the amount of $230.51 per week for 50 4/7 weeks, $85 for money owed Jhee for medical expenses and $207.48 per week for 38 weeks, for 20% PPD to the right hand. The arbitrator relied on the fact the carpal tunnel syndrome had been surgically repaired.

The parties dispute whether Messamore's TTD award should be cut off as of the date Jhee stated she could return to work, because, according to Messamore, State Farm refused to allow her to work under the conditions described by Jhee. When entering the TTD award, the arbitrator noted that after Messamore returned to work briefly in the fall of 1992:

"Petitioner began experiencing further difficulties and left work again on September 17, 1992[,] and underwent conservative medical treatment until released to restricted duty by Dr. Jhee on January 27, 1993. Respondent had no work for Petitioner at that time, but she had reached maximum medical improvement.

Based upon the above, petitioner is found to be temporarily and totally disabled from work commencing July 10, 1992[,] through August 18, 1992[,] and again from September 17, 1992[,] through July 27, 1993 [,] for a total of 50-4/7 weeks and is entitled to receive benefits for the same." (Emphasis added.)

Apparently, the arbitrator intended to cut off benefits as of January 27, 1993, when Jhee wrote the letter releasing Messamore for work. However, apparently due to a clerical error, the July 27, 1993, date was used instead.

On April 15, 1997, the Commission affirmed the arbitrator's decision, except it reduced the period for TTD benefits by changing the cutoff date from July 27, 1993, to January 29, 1993, for a new total of 24 6/7 weeks. The Commission relied upon Jhee's "return to work" slip, dated January 27, 1993, stating Messamore could return to work with restrictions as of January 23, 1993. The Commission further found respondent "shall have credit for all amounts paid to or on account" of her injury. On October 31, 1997, the circuit court confirmed the Commission's decision. The circuit court held any overpayments of TTD benefits to Messamore could be credited against the permanent award.

Messamore...