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04/27/87 Orven E. Luttrell, v. the Industrial Commission

April 27, 1987





507 N.E.2d 533, 154 Ill. App. 3d 943, 107 Ill. Dec. 620 1987.IL.547

Appeal from the Circuit Court of Kane County; the Hon. Marvin Dunn, Judge, presiding.


JUSTICE KASSERMAN delivered the opinion of the court. BARRY, P.J., and McCULLOUGH, McNAMARA, and WOODWARD, JJ., concur.


On February 3, 1981, claimant, Orven E. Luttrell, filed an application for adjustment of claim under the Workers' Compensation Act (Act) (Ill. Rev. Stat. 1981, ch. 48, par. 138.1 et seq.), alleging that he suffered from bilateral carpal tunnel syndrome as a result of repetitive trauma incurred as a truck driver and dockhand while employed by Central Wisconsin Transport, Inc. (Central Wisconsin Transport). On April 29,1981, claimant filed two more applications for adjustment of claim under the Act, alleging that the carpal tunnel syndrome was a result of his subsequent employment as a truck driver with respondents Grow Mart, Inc. (Grow Mart), and Truck Transport Company (Truck Transport). The cases were consolidated before an arbitrator for hearing on May 11 and 12 and July 13, 1982. Before claimant rested his case before the arbitrator, he requested that his claims be considered under the Workers' Occupational Diseases Act (Ill. Rev. Stat. 1981, ch. 48, par. 172.36 et seq.) rather than the Workers' Compensation Act. The arbitrator granted the request.

On August 11, 1982, the arbitrator entered his decisions denying compensation. This decision was affirmed by the Industrial Commission and the circuit court confirmed the decision of the Industrial Commission. The claimant has taken this appeal and respondent Truck Transport has taken a cross-appeal.

The issues presented on appeal are: (1) whether claimant failed to properly perfect his review, thereby depriving the court of subject matter jurisdiction, by filing a praecipe for writs of certiorari and scire facias rather than a request for summons (respondent Truck Transport's cross-appeal); (2) whether claimant's carpal tunnel syndrome is a compensable "occupational disease" within the meaning of the Workers' Occupational Diseases Act; and (3) in the alternative, whether claimant can now pursue a remedy under the Workers' Compensation Act.

In addition, we have taken for decision with this appeal claimant's motion to strike Truck Transport's reply brief. In this regard, Truck Transport has raised in its answer brief the issues involved in its cross-appeal. Then, after claimant filed his reply brief, Truck Transport filed a "response" brief which contained argument only on the original issues raised by claimant. Truck Transport's reply brief was therefore in violation of Supreme Court Rule 343(b)(i) (87 Ill. 2d R. 343), which requires that a cross-appellant's reply brief be "confined strictly" to replying to appellant's (claimant's) arguments on the cross-appeal. Claimant's motion is therefore granted, and we will not consider Truck Transport's reply brief.

The evidence presented before the arbitrator was as follows: Claimant has been a truck driver since 1948. He worked for Central Wisconsin Transport from July 17, 1971, until he was laid off on November 2, 1979. He drove tractor-trailers with 5- or 10-speed manual transmissions, shifting with his right hand and steering with his left hand. He also worked as a dockhand, moving freight with a lift truck and a hand truck. Claimant testified that he worked eight hours a day on the average, 30% of the time as a driver, the remainder as a dockhand.

Claimant testified that prior to his employment with Central Wisconsin Transport he had no problems with his hands or wrists. However, in 1974 claimant noticed that his hands had a tendency to go to sleep on the steering wheel. He also noticed that his hands were extremely sensitive to the cold.

Claimant first sought medical attention for the problem from a chiropractor in 1974 or 1975, but got no relief. He subsequently went to a neurosurgeon, Dr. Baumann. Claimant requested permission from Robert Abbey, his immediate supervisor at Central Wisconsin Transport, to enter the hospital for tests. Medical records indicate that claimant was admitted to the hospital on July 18, 1974, complaining of pain, numbness, and weakness in his hands and arms. A myelogram was performed and Dr. Baumann diagnosed cervical disc disease. However, the discharge summary indicates that claimant felt that he did not want surgery at that time.

By the end of 1979, claimant's hands were bothering him periodically during the day and pain awakened him at night. Claimant testified that he had informed James Bodkins, the night dispatcher at Central Wisconsin Transport, of these problems once every month or two for five years.

After his layoff from Central Wisconsin Transport, claimant applied for a job with Grow Mart in March 1980. In the meantime, he worked in an insurance business which he owned. Claimant testified that when he wasn't active as a truck driver he had some relief in his hands, unless he was driving his own car, in which case his hands would go to sleep or tingle a bit. However, claimant also testified that he had no difficulty in the week prior to starting work at Grow Mart.

At Grow Mart, claimant worked as a truck driver. He drove Mack trucks and Internationals, with 5- or 10-speed manual transmissions, pulling anhydrous tanks. The unloading process required claimant to drag a pair of large hoses off the truck and hook them between the truck and a receiving tank. The hoses weighed 75 pounds, were four inches in diameter, and were approximately 20 feet long. The hoses were so cold that they had frost on them. Claimant was required to tighten a large nut on the hose first by hand, and then by using a hammer.

Claimant testified that he drove considerable distances for an hour or two at a time for Grow Mart and that his hands would become numb and would hurt. He also testified that while handling the hoses, his hands would become numb and hurt even though he was wearing gloves. During his employment, he did not inform any supervisory personnel at Grow Mart of the problems he experienced. Claimant testified that at this time it was getting so that he could not distinguish coin denominations by touch. The problem was worse in his right hand.

Claimant's last day of work for Grow Mart was June 28, 1980. He initially testified that his hands were not bothering him as much while he was not working except that they caused him to wake up a few nights and except for a little numbness while driving his car. However, he also testified that while looking for employment after leaving Grow Mart, his hands would go to sleep on the steering wheel of his car and his hands would wake him up quite painfully. He also described having trouble holding a cup of coffee or a soft drink, and he stated that his hands hurt and trembled even while reading a newspaper.

Claimant started work for Truck Transport in August or September 1980 as a driver. He drove a Mack truck with a five-speed transmission for eight or nine hours a day. His duties included disconnecting hoses from the trailer, turning the crank, and pulling the pin to disconnect the trailer for unloading. He noticed the same problems with numbness in his hands while driving and also pain waking him up at night. However, claimant apparently did ...

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