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Industrial Commission Division v. Industrial Commission

July 15, 1998


The opinion of the court was delivered by: Justice Holdridge

Appeal from Circuit Court of Macoupin County No. 96MR2

Honorable Thomas P. Carmody, judge Presiding.

Lawrence Smith (claimant) filed an application for adjustment of claim pursuant to the Workers' Compensation Act (Act) (Ill. Rev. Stat. 1983, ch. 48, par. 138.1 et seq. (now 820 ILCS Ann. 305/1 et seq. (Michie 1993 & Supp. 1998))) alleging that while working for Freeman United Coal Mining Company (employer) he suffered repetitive trauma injuries to his wrist and arm as a result of using a wrench in an awkward position. In his application, the claimant alleged an accident date of August 25, 1992. He subsequently filed a petition for penalties based upon the employer's alleged refusal to pay temporary total disability (TTD) benefits.

Following a hearing, the arbitrator, finding that the claimant had failed to prove an accidental injury and failed to prove a causal connection, denied compensation. The claimant sought review by the Illinois Industrial Commission (Commission), which reversed the arbitrator's findings and determined that March 13, 1992, was the correct accident date. The Commission awarded TTD, medical benefits, and permanent partial disability (PPD) benefits based upon a finding of loss of 20% of the use of the left hand, 15% of the use of the right hand, 30% of the use of the left arm, and 20% of the use of the right arm. In addition, the Commission found that the employer's delay in paying TTD was unreasonable and vexatious and awarded penalties. The employer then filed a petition for review with the circuit court, which confirmed the decision of the Commission. The employer appeals.

The claimant, a 42-year-old repairman, testified that he began working for employer in 1981 as a laborer. He was laid off in 1982 and was recalled in 1985, only to be laid off again in 1987. From 1987 to 1990 claimant worked as a foreman in construction and did not engage in any manual labor. He was again recalled by employer and returned to work on September 26, 1991. He worked as a laborer until January 14, 1992, at which time he was assigned by the employer to work as a repairman.

The claimant testified that his job duties as a repairman included nut and bolt tightening with a wrench, as well as the turning of small screws with his hands. He also testified that approximately 60% of his daily work involved the use of tools and his hands were often in a flexed or extended position whenever he went about his duties. He also noted that he would use both hands and had to perform fine manipulations during the course of his work.

He first began to notice problems with both his hands around the end of February 1992. He testified that his hands would lock up, go numb, and tighten up. If his hands were clenched, they would not open. He stated that the condition of his hands made it difficult to hold onto his tools. He sought treatment on March 4, 1992, when he visited Dr. Brewer, who in turn referred him to Dr. Trudeau. He was examined by Dr. Trudeau on March 13, 1992, who immediately diagnosed bilateral carpal tunnel syndrome and bilateral cubital tunnel syndrome. Dr. Trudeau speculated that the claimant's condition may have been caused or exacerbated by "overuse syndrome." On that same day, the claimant returned to Dr. Brewer for treatment, based upon Dr. Trudeau's diagnosis.

The following day, the claimant reported for work, spoke to Jankowski, his supervisor, and asked to be allowed to fill out an accident report. He was told to check back with Jankowski the following day, at which time he was told by Jankowski that carpal tunnel "was not a job-related injury and that they were not going to fill out an accident report."

The claimant continued to work with pain in both hands and arms. On August 25, 1992, Dr. Brewer recommended surgery and referred claimant to Dr. Watson. The claimant testified that he then returned to Jankowski and again asked to be permitted to fill out an accident report. Again, his request was denied.

Dr. Watson first examined the claimant on September 9, 1992, at which time he gave a history of symptoms of pain in his hands and forearms since February 1992, and described his work activities as involving lifting and the twisting and turning of valves and levers. Following his examination and review of medical records, including the tests performed for Dr. Trudeau, Dr. Watson diagnosed bilateral carpal and cubital tunnel syndromes. He prescribed splints and anti-inflammatory medication.

After conservative treatment failed to significantly improve claimant's condition, Dr. Watson recommended surgery. However, employer's group medical insurance carrier determined that claimant had not treated conservatively for a long enough period of time and therefore refused to authorize payment for surgery. Dr. Watson then sought a second opinion from Dr. Mark Greatting, who concurred in the diagnosis and the need for surgery.

The employer then sought an independent medical examination by Dr. Simon Horenstein in January 1993. The claimant sought a copy of Dr. Horenstein's report from the employer, but never received one.

Dr. Watson eventually received authorization from the group health insurance carrier to perform surgery. Surgery on the left hand and elbow was done on March 4, 1993, followed by three weeks of physical therapy. On April 22, 1993, Dr. Watson performed surgery on the right hand and elbow. On June 1, 1993, the claimant was released by Dr. Watson to return to work without restriction. Claimant did not receive any TTD benefits for this period, as he was again told that his injuries were not work related. The claimant testified that since returning to work, he has noted trouble with his elbows and hands.

Dr. Watson opined in an evidence deposition given February 2 1994, that "[the claimant's] conditions commonly occur from overuse, as an overuse syndrome, using the upper extremities in the work environment. And the type of work that [the claimant] described to me is consistent with a possible cause or aggravating effect for his cubital and carpal tunnel syndrome." Dr. ...

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