Oscar Mayer & Co. v. Industrial Com'n

• Decision Date: 01 December 1988
• Docket Number: No. 4-87-0737,4-87-0737
• Citation: 126 Ill.Dec. 41,176 Ill.App.3d 607,531 N.E.2d 174
• Parties: , 126 Ill.Dec. 41 OSCAR MAYER & COMPANY, Appellee, v. The INDUSTRIAL COMMISSION et al. (Robert J. Caputo, appellant.) WC.
• Court: United States Appellate Court of Illinois

Page 174

531 N.E.2d 174

176 Ill.App.3d 607, 126 Ill.Dec. 41

OSCAR MAYER & COMPANY, Appellee, v. The INDUSTRIAL COMMISSION et al. (Robert J. Caputo, appellant.)

No. 4-87-0737 WC.

Appellate Court of Illinois,

Fourth District,

Industrial Commission Division.

Dec. 1, 1988.

Ronald J. Kanoski, Kanoski & Maritote, Rushville, for appellant.

Rammelkamp, Bradney, Dahman, Kuster, Keaton & Fritsche, Jacksonville (Forrest G. Keaton, of counsel), for appellee.

Justice McCULLOUGH delivered the opinion of the court:

Claimant appeals from an order of the circuit court reversing the Industrial Commission (Commission) decision which affirmed an arbitrator's award of benefits to claimant for carpal tunnel syndrome. The trial court concluded claimant failed to establish a date of accident as required by the supreme court decision in Peoria County Belwood Nursing Home v. Industrial Comm'n (1987), 115 Ill.2d 524, 106 Ill.Dec. 235, 505 N.E.2d 1026. Claimant appeals and we reverse.

The facts are undisputed. Claimant began his employment at respondent's hog slaughtering facility in 1968. He worked in various capacities for the following 15 years. Each of his duties required repeated arm, shoulder, and hand movements. For the last six years of his employment, claimant worked on the "cut floor" performing a job called the "shoulder chop." This required positioning and cutting hog carcasses, each weighing from 90 to 200 pounds, at the rate of approximately 800 per hour during each 8-to-10 hour shift. In 1981, claimant began experiencing numbness, tingling, and burning sensations in his elbows and hands.

Claimant was examined at that time by the company doctor and, based on electrical diagnostic testing, was informed he suffered from bilateral carpal tunnel syndrome. Claimant testified he refused surgery because of his age. Claimant was treated with conservative methods and pain killers for the next two years although his condition did not improve.

In August 1982, a second nerve conduction test indicated claimant's condition was becoming progressively worse. Claimant still resisted surgery because of his age. Conservative treatment including cortisone shots and doses of vitamin B6 were administered.

A third nerve conduction test performed on May 6, 1983, again confirmed claimant's deteriorating condition, and he finally consented to surgery which was performed on his right hand on May 12, 1983, and on his left hand on August 3, 1983. He returned to work in October 1983, retiring in December 1983 at the age of 61.

Claimant's application for adjustment of claim was filed April 5, 1984. It alleged the date of the industrial accident was May 12, 1983. At the arbitration hearing, claimant was granted leave to amend the date of accident to May 11, 1983, on the theory this was the last day claimant was exposed to repetitive trauma. As we have indicated, the arbitrator and Commission awarded benefits under section 8(e) of the Workers' Compensation Act (Ill.Rev.Stat.1987, ch. 48, par. 138.8(e)) for the permanent and complete loss of the use of 15% of each hand. The circuit court, however, reversed finding claimant failed to prove May 11, 1983, was the date of the accident.

On appeal, claimant candidly admits if this court applies the test announced by the supreme court in Peoria Belwood Nursing Home v. Industrial Comm'n (1987), 115 Ill.2d 524, 106 Ill.Dec. 235, 505 N.E.2d 1026, in its narrowest sense, the date of injury alleged by claimant in the instant case is excluded and his claim for benefits fails. Claimant acknowledges he was treated by the company doctor in June 1981, when he was informed of the existence of bilateral carpal tunnel syndrome. He further concedes May 11, 1983, was simply the date he quit working prior to a scheduled surgery to correct the condition.

In Peoria Belwood, the supreme court considered the question of whether carpal tunnel syndrome sustained as a result of work-related repetitive trauma was compensable without a finding the injury occurred as a result of one specific incident traceable to a definite time, place, and cause. The supreme court answered that question in the affirmative qualified by the following:

"We therefore hold that the date of an accidental injury in a repetitive-trauma compensation case is the date on which the injury 'manifests itself.' 'Manifests itself' means the date on which both the fact of the injury and the causal relationship of the injury to the claimant's employment would have become plainly apparent to a reasonable person." (Peoria Belwood, 115 Ill.2d at 531, 106 Ill.Dec. at 238, 505 N.E.2d at 1029.)

Claimant acknowledges it is clear from the record he knew of his injuries and their relationship to his employment prior to May 11, 1983. Claimant argues, however, the date of "collapse" should still be considered a viable date for determining injury in repetitive trauma cases, citing International Harvester Co. v. Industrial Comm'n (1973), 56 Ill.2d 84, 305 N.E.2d 529. There it was stated the appropriate date of injury is the date "where the employee's existing physical structure * * * gives way under the stress of his usual labor and he is suddenly disabled." International Harvester, 56 Ill.2d at 90, 305 N.E.2d at 533.

Claimant argues Illinois adheres to the repeated-impact theory under which each impact is regarded as an accidental occurrence. (1B Larson, Workmen's Compensation Law § 39.40 (1985).) Claimant reasons that as long as the supreme court continues to require the "fiction" of establishing a definite date of injury, claimant ought to be entitled to a broad interpretation of the rule which would allow him to select any date upon which he is exposed to the work-related trauma, including the last date of exposure. Applying Peoria Belwood narrowly would, according to claimant, reduce the parties to the "tortious tedium" of trying to determine when a reasonable man first would have determined the one correct date on which the fact of the injury and its causal connection to the workplace became apparent.

Respondent counters the supreme court has always adhered to the necessity of establishing a specific date of accident. Respondent points out the date of accident is not without meaning since a number of important questions cannot be answered unless a date of accident or injury is fixed. As noted by Professor Larson, these include which employer and carrier is at risk, whether notice of injury and claim are within the statutory period, whether statutory amendments were in effect, which wage basis applies, and many others. 1B Larson, Workmen's Compensation Law § 39.10 (1985).

In this court's decision in Peoria County Belwood Nursing Home v. Industrial Comm'n (1985), 138 Ill.App.3d 880, 93 Ill.Dec. 689, 487 N.E.2d 356, the court recognized two alternative criteria are set forth by Professor Larson for fixing the date when the injury manifests itself. The first is the time at which the employee can no longer perform his...