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Waldorf Corp. v. Industrial Commission

March 02, 1999


Appeal from the Circuit Court of Cook County, Illinois No. 96 L 50166 Honorable John A. Ward Judge, Presiding

The opinion of the court was delivered by: Justice Holdridge


In this matter, we are asked to determine whether a condition termed "fibromyalgia" can be considered a compensable injury under the Workers' Compensation Act (the Act) (now 820 ILCS 305/1 et seq.(Michie 1995)). We hold that fibromyalgia can be compensable under the Act where it is proven to be a disabling condition arising out of and in the course of the claimant's employment. We affirm the judgment of the circuit court of Cook County.

Janet Johnson (the claimant), filed an application for adjustment of claim pursuant to the Act alleging that she sustained a condition known as fibromyalgia as the result of an accident she sustained on May 2, 1990, while working as a "catcher" for Waldorf Corporation, a/k/a Wabash Corporation (the employer). Following hearing, the arbitrator found that claimant had suffered an accidental injury traceable to May 2, 1990, and that a causal connection between claimant's accident and her current condition of ill-being, fibromyalgia. The arbitrator awarded TTD, medical payments, and found that claimant was entitled to permanent total disability benefits. The employer petitioned for review with the Illinois Industrial Commission (Commission), which affirmed and adopted the arbitrator's findings and Conclusions. The Employer then filed a petition for review by the circuit court of Cook County, which found that the decision of the Commission was neither against the manifest weight of the evidence, nor contrary to law and confirmed the decision of the Commission. The employer appealed to this court. For the following reasons, we affirm the judgment of the circuit court.

The claimant had worked for the employer for several years, but her problems began shortly after she began working on a job called "Hallmark." In that job she was required her to remove unfolded cartons as they came off a cutting press, stack the cartons, and then lift and place groups of stacked cartons in a large container above her head. Every 30 to 45 seconds the claimant stacked hundreds of cartons, lifted them, stretched to reach over her head, stooped down and repeated the movements. The Commission termed the work "fast, heavy and repetitious."

After several weeks of performing these duties, the claimant noted soreness in her knees, right shoulder and spine. She went to her family doctor who prescribed medication. She continued to work and her condition deteriorated. She developed soreness in her cervical spine and right shoulder. She reported her symptoms to her supervisor. On May 2, 1990, while working, the claimant's pains became worse. She informed her supervisor that she could no longer keep up with the pace set by the machine. She informed the company nurse that she intended to seek treatment the next day.

Medical records from Bridgeview Medical Center indicate that the claimant sought treatment on May 3, 1990, and was diagnosed with "right shoulder biceps tendinitis" caused by physical activity associated with work. The claimant was placed on a 10 pound weight restriction with no repetitive movements. The following day, the claimant was examined by the employer's physician, Dr. Phyllis Gerber, who diagnosed "cervical shoulder sprain" and also placed the claimant on a 10 pound weight restriction with no repetitive motions.

Dr. Gerber referred the claimant to Dr. Dirk Nelson, an orthopedic surgeon, who examined her on June 7, 1990. Dr. Nelson reported his observations of decreased flexion and extension and lateral bending." He opined that claimant suffered from "cervical sprain syndrome," and recommended continued physical therapy and work restrictions.

The claimant remained off work until she returned to light-duty on July 30, 1990, and worked until October 26, 1990, when due to her deteriorating condition, she was unable to continue performing the light-duty. On October 30, 1990, Dr. Gerber diagnosed "chronic fatigue syndrome and fibromyalgia."

The claimant then sought treatment from Dr. Robert Katz, a certified rheumatologist. Dr. Katz diagnosed claimant's condition as "fibromyalgia" and opined that her condition was initiated by injury at work and also aggravated by her work duties. He based his opinion on his evaluation of the claimant's condition and complaints while attempting to work at light-duty without success and on the fact that she was able to perform her duties for several years without complaint prior to being assigned to the repetitive duties of the "Hallmark" job. Dr. Katz testified in his deposition at length as to the possible causes and effects of fibromyalgia and its relationship to occupational injuries and repetitive trauma. Dr. Katz noted that the medical community does not yet know what causes fibromyalgia. However, he noted his own experience with approximately 500 to 1,000 patients with fibromyalgia, and stated that in approximately 25% of those patients the condition (fibromyalgia) began after an injury at work. Dr. Katz then opined that the claimant's fibromyalgia was the result of a work-related injury, based upon the timing of the onset of symptoms shortly after beginning to work on the "Hallmark" machine.

Dr. Herbert Rubenstein examined the claimant on January 19, 1993, at the request of the employer. He reported an observation of "mild right trapezius spasm and local tenderness in the posterior neck with trigger points at the right scapula, both trapeze muscles and the right acromion." Dr. Rubenstein concluded that the claimant "does indeed have fibromyalgia and osteoarthritis of the neck." In his deposition, Dr. Rubenstein commented that fibromyalgia is an ill-defined clinical syndrome involving individuals who had various sites of skeletal and muscular pain, but for whom no objective basis for such pains could be found. Dr. Rubenstein noted that there is no recognized cause of fibromyalgia, but the predominant theory as to its cause is that it has a psychological basis. Dr. Rubenstein stated his personal belief that fibromyalgia is a psychological disorder, and then opined that based upon his opinion as to the causes of the condition, the claimant's fibromyalgia could have been neither caused nor aggravated by her employment.

On March 9, 1993, the claimant was examined by Dr. Daniel Hirsen, a certified rheumatologist, who diagnosed claimant's condition as fibromyalgia, and opined that "there certainly is a probability that repetitive physical work can exacerbate the symptoms of this syndrome [fibromyalgia]."

Based upon the record of the repetitive nature of the claimant's job duties, and the onset of her symptoms shortly after undertaking the "Hallmark" job, the Commission found that the claimant had sustained accidental injuries on May 2, 1990, which were caused by her repetitive work duties arising out of and in the course of her employment. The Commission further found, based upon the testimony of Dr. Katz and Dr. Hirsen, that the claimant's present condition of ill-being (fibromyalgia) was causally related to the repetitive work duties performed by the claimant from January 1990, to May 2, 1990.

In awarding permanent total disability benefits, the Commission found that the claimant had proven entitlement to permanent total disability (PTD) benefits under the "odd-lot" doctrine. The employer sought review from the circuit court of Cook County, ...

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