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Downs v. Industrial Com.





Appeal from the Circuit Court of Montgomery County; the Hon. David W. Slater, Judge, presiding.


Rehearing denied June 6, 1986.

Claimant filed an application for adjustment of claim under the Workers' Occupational Diseases Act (Ill. Rev. Stat. 1983, ch. 48, par. 172.36 et seq.). An arbitrator awarded her both temporary total disability and permanent partial disability benefits. On review the Industrial Commission reversed the arbitrator and denied benefits. The Commission found that claimant did not suffer from an occupational disease or become exposed to one, and further found that her condition was not the result of injury under the Workers' Compensation Act (Ill. Rev. Stat. 1983, ch. 48, par. 138.1 et seq.). Claimant then sought review in the circuit court of Montgomery County. That court confirmed the Commission, and claimant appeals.

The evidentiary record disclosed that claimant was a meat wrapper for the respondent, Capri Foods, Inc., d/b/a Capri IGA, a supermarket in Hillsboro, and had been so employed for 18 years. Her duties included wrapping, pricing, and displaying meat. The meat was placed on trays which were shelved at various heights ranging from six inches above the floor to a distance above claimant's head. The trays varied in weight, depending upon the type of meat. Hams weighing 8 to 10 pounds each were placed four to a tray; roasts weighing 3 to 6 pounds each were placed six or seven to a tray. During the holiday season claimant handled turkeys which came two to a box, each weighing 23 to 24 pounds. About 500 cases of turkeys arrived each holiday. Claimant also unloaded cases of meat from delivery trucks. These cases weighed 60 to 70 pounds each. Claimant testified that she worked eight hours per day, five days per week, lifting trays from the shelves to wrap, price, and display the meat.

Claimant's physical complaints centered in her back and right leg. According to her testimony, the condition worsened during the 30-day period preceding June 5, 1980, the day upon which she left her job. She stated that she has not worked since that date.

Claimant was admitted to St. John's Hospital in Springfield on June 6, 1980. She received traction therapy and a myelogram. She was again hospitalized in November 1980 when additional traction therapy and another myelogram were received and performed. In January 1981 she was again hospitalized and another myelogram was performed. In March 1981 she was referred to a doctor in Canada. That doctor performed an enzyme injection of the affected area of her back.

On cross-examination claimant admitted that she had had difficulty in walking while on vacation in September 1979 and further admitted to having "back spells" off and on during the years preceding the hearing. She had been told that she had degenerative-disc disease.

The depositions of three physicians were introduced into the record. They were those of Dr. Basilius Zaricznyj, an orthopedic surgeon, Dr. Lyle Wacaser, a neurosurgeon, and Dr. Marshall Conrad, an orthopedic surgeon. All were in substantial agreement as to the diagnosis: degenerative-disc disease and arthritis of the spine. However, they differed on the etiology of the conditions.

Dr. Zaricznyj stated that a degenerated disc can result from one injury, many injuries, or simply through the aging process alone. He said that degenerative-disc disease is more frequently found in persons not engaged in heavy physical labor. On cross-examination he stated that lifting heavy boxes of meat for 40 hours per week for 17 or 18 years could cause the disease, but also maintained that it can occur in the absence of heavy lifting.

Dr. Wacaser stated that when he examined claimant he found a bulging disc at L4-L5. He said that a bulging disc can result from either trauma or degeneration and the only way to determine the cause is through the history taken from the patient. He further stated that when an individual, such as claimant, has had previous back problems and then develops degenerative-disc disease, the cause is probably deterioration. He said that employment of the type engaged in by claimant would aggravate the condition.

Dr. Conrad testified to an opinion, based upon claimant's history and a hypothetical question, that repeated bending and lifting at work may have caused claimant's degenerative-disc disease. On cross-examination he stated that the disease may occur as a result of either trauma or the normal aging process. He stated that although claimant's condition could have occurred regardless of her employment, the employment aggravated the condition.

No new evidence was presented to the Commission on review. As has been indicated, the Commission denied benefits. The salient portion of its order is:

"The Commission finds that the Petitioner did not sustained [sic] an occupational `disease' within the generally understood meaning of that term as a condition which resulted from a [sic] etiologic agent; that `degenerative disc disease,' at least in the context of this record, does not constitute such a disease; and that the testimony as to repeated bending and lifting does not constitute exposure to an occupational disease within the meaning of the relevant Act. The Commission further finds that while the Petitioner may suffer from a back condition, her condition of ill-being is not related to a compensable accident under the Workers' Compensation Act's definition of accident because the record in this case, including Petitioner's own testimony, fails to establish a specific time, place and occurrence as required by the Act. [Citation.] Furthermore, the record provides no basis, in factor [sic] medical opinion for a finding of `accident' on a `repetitive trauma' theory."

Claimant presents two issues for our consideration: (1) whether the Commission erred in holding that degenerative-disc disease is not an occupational disease within the meaning of the statute; (2) whether claimant established by the manifest weight of the evidence that she suffered from an occupational disease. We agree with ...

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