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02/23/89 Three "D" Discount Store, v. the Industrial Commission

February 23, 1989





556 N.E.2d 261, 198 Ill. App. 3d 43, 144 Ill. Dec. 794 1989.IL.224

Appeal from the Circuit Court of Coles County; the Hon. William J. Sunderman, Judge, presiding.


PRESIDING JUSTICE BARRY delivered the opinion of the court. WOODWARD and LEWIS, JJ., concur. JUSTICE McCULLOUGH, specially Concurring. McNAMARA, J., concurs.


The petitioner, Jerry M. Myers, brought a claim pursuant to section 19(b) of the Workers' Compensation Act (Ill. Rev. Stat. 1987, ch. 48, par. 138.1 et seq.). The arbitrator found for the respondent, Three "D" Discount Store. The Industrial Commission reversed, awarding the petitioner temporary total disability for a period of 39 4/7 weeks and $5,812.95 in medical expenses. The circuit court of Coles County confirmed. The respondent appeals.

The record shows that the 46-year-old petitioner was employed by the respondent from August 7, 1983, to August 10, 1984. For the first two weeks, the petitioner worked on the renovation of the respondent's store. The petitioner was then hired full time as a "buffer man." In his job, the petitioner used two types of buffing machines. The first machine, used primarily from August through October of 1983, was an electric buffer weighing approximately 75 pounds. The second machine was a Honda propane buffer weighing between 150 and 200 pounds. Between August and October of 1983, the petitioner used both machines in scrubbing, waxing and buffing the floors. He worked from six to eight hours a day and experienced no physical problems.

After October of 1983, the petitioner's hours were reduced to between 2 and 2 1/2 hours a day, six days a week. The petitioner mainly dry-buffed the floors, using the propane buffer almost exclusively. He reserved the electric buffer for periodic shampooing of the store's carpeted areas.

In January of 1984, the petitioner noticed swelling in both hands and began having shooting pains in his right arm and hand. He noticed this condition at home and at work. He consulted his family physician, Dr. Carl Johnson, who prescribed Rufen for the pain. At the time, the petitioner was moderately overweight and was being treated by Dr. Johnson for a diabetic condition. He remained on the medication through February, as the pain in his hands and upper right arm continued to increase in severity. In March, the petitioner began noticing a tingling sensation in his hands and more pain shooting up his right arm. By April, he noticed numbness in the ring finger and small finger of his left hand and in the area of his left wrist. He also noticed numbness from the middle finger of his right hand through his wrist and up his right arm. While working in May and June of 1984, petitioner noticed that his condition continued to grow more severe. He continued on medication, and Dr. Johnson referred him to Dr. Block, a neurologist.

On June 27, 1984, Dr. Block took an EMG and sent the results to Dr. Johnson. Dr. Block's report stated that his examination suggested bilateral carpal tunnel syndrome, somewhat worse in the right hand than in the left hand. Dr. Johnson discussed the results of the EMG with petitioner and then referred him to Dr. James McKechnie, an orthopedic surgeon. Throughout this period, the petitioner continued buffing the store's floor according to the schedule set up by the respondent.

Dr. McKechnie examined the petitioner on July 10, 1984. During his interview with Dr. McKechnie, petitioner did not state that his condition was work related or that Dr. Johnson had so informed him. Petitioner stated only that he had had the symptoms for about four months prior to his visit with McKechnie. Dr. McKechnie ordered X rays and scheduled petitioner for surgery in August.

Sometime around the end of July or the beginning of August of 1984, petitioner notified respondent's manager, Tom Underwood, that he suffered from carpal tunnel syndrome. The petitioner told Underwood that his condition would require surgery and that it was his physician's opinion that the condition was work related. The petitioner also testified that on August 10, 1984, the last day he worked, he noticed swelling and severe pain in both hands. He experienced severe numbness in the small finger and ring finger of his left hand and in the index and middle fingers of his right hand. He also noted pain and numbness in his right wrist and up his right arm.

The petitioner was hospitalized for an unrelated condition on August 14, 1984. It was during this hospitalization that the carpal tunnel surgery was performed on the petitioner's right hand and wrist on August 22, 1984. On August 23, 1984, the petitioner called Ron White, the respondent's assistant manager, and informed him of the surgery and of Dr. McKechnie's belief that the injury was work related. A second carpal tunnel surgery was performed on the petitioner's left wrist on November 1, 1984.

Between November of 1984 and February of 1985, the petitioner experienced pain and numbness in the small and ring fingers of his right hand and from the wrist to the elbow. Dr. McKechnie diagnosed that the petitioner was suffering from ulnar nerve palsy and ...

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