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A.C. & S. v. Industrial Commission

March 09, 1999

A.C. & S., PLAINTIFF-APPELLEE,
v.
THE INDUSTRIAL COMMISSION ET AL. (NICK DELESSIO), DEFENDANTS-APPELLANTS.



Appeal from Circuit Court of Cook County No. 97L50332 Honorable Alexander P. White, Judge Presiding.

The opinion of the court was delivered by: Justice McCULLOUGH

IN THE COURT OF APPEALS OF THE STATE OF ILLINOIS Industrial Commission Division

This is an appeal by Nick Delessio, claimant, from a decision of the circuit court of Cook County that reversed the March 4, 1997, decision of the Industrial Commission (Commission). The arbitrator, on March 6, 1995, found that claimant's date of accident fell outside the time period claimant was employed by respondent A.C. & S. (AC & S). The Commission reversed the arbitrator and granted the claimant 9 3/7 weeks temporary total disability (TTD), and compensation under section 8(e) of the Workers' Compensation Act (820 ILCS 305 (West 1992)) (Act) for 47 1/2 weeks, representing 10% loss of use of the right hand and 15% loss of use of the left hand and medical expenses.

On February 5, 1998, the circuit court reversed the Commission, concluding, as a matter of law, that the manifestation date must occur during employment. We reverse the circuit court and affirm the Commission.

Claimant started working for AC & S on February 24, 1993. He per- formed similar work, installing heat and frost insulation, for almost 22 years prior to his work there. Immediately before working for AC & S, claimant had worked as an

"insulation installer for Universal Insulation and MVP Insulation, though this was lighter work, on a smaller scale. He testified the AC & S job was atypical because it involved moving heavier materials than usual, and it required him to wear a fire suit and full body harness, which weighed 10 to 15 pounds. While claimant normally worked 40 hours per week, this job required him to work six to seven days a week for 10 hours per day. James Kerns, a co-worker, verified that this was a special "heavy industrial" job involving special equipment, and longer hours, up to 12 hours per day for six or seven days a week."

According to claimant, he began experiencing numbness, tingling and aching in both hands in the Spring of 1993. He testified he had no such symptoms before he started working for AC & S. He did not tell anyone in management about his problems with his hands, and he received no medical treatment during his tenure at AC & S. According to Jeff Heubrich, AC & S' safety manager, claimant never filed an injury report, and he never missed work. Jerry Stolarz, the project manager for AC & S, testified he was never informed of any injury or work restrictions involving claimant and did not recall claimant missing any work.

Claimant was laid off on June 10, 1993. Stolarz testified the layoff was not for medical reasons, and several other people were also laid off. Claimant immediately found a full-time job with Commercial Insulators (Commercial). He testified he was doing similar work, but on a smaller scale.

On June 17, 1993, claimant was seen by Dr. James Schlenker, a hand surgeon, about pains in his hand. Claimant testified this appointment was made in April 1993. Schlenker testified that it typically takes two to four weeks to get an appointment with him. On June 22, 1993, Schlenker told claimant he suffered from carpal tunnel syndrome.

According to Schlenker's deposition, claimant was predisposed to having carpal tunnel syndrome before working at AC & S. Schlenker testified claimant had a pre-existing condition due to his long history of repetitive work, and this condition became symptomatic when it was aggravated by his work for AC & S. According to Schlenker's report, claimant told him he had had hand symptoms for six months. This period would have started two months before claimant started working for AC & S. Claimant testified he did not recall this statement, and if he made it, it was incorrect. Schlenker testified it was possible claimant suf- fered from symptoms of carpal tunnel syndrome before his employment with AC & S. However, Schlenker testified claimant told him his symptoms began about a month after he started working for AC & S, and Schlenker believed this to be true.

Claimant testified he notified AC & S of his condition on June 22, 1993. Specifically, he gave Schlenker's secretary the phone number of AC & S, and he was present when she called the AC & S office. Heubrich testified his first notice of an injury was from a phone call after claimant was laid off. Claimant continued to work for Commercial until he had carpal tunnel surgery on his left hand on September 11, 1993. Claimant contends he was temporarily totally disabled until he was re- leased for work on November 15, 1993.

On March 4, 1997, the Commission found claimant sustained an accidental injury arising out of his employment on June 22, 1993. The Commission concluded the injury would have become plainly apparent to a reasonable person on this date. It concluded the date the injury became manifest need not be within the period of employment, and there was a causal connection between his activities at AC & S and the fact claimant's carpal tunnel syndrome became symptomatic. The Commission found timely notice and awarded claimant permanent partial disability (PPD) benefits, medical expenses, TTD benefits, and interest. On February 5, 1998, the circuit court reversed the Commission, holding the manifestation date must be during the period of employment for an employee to recover under the Act.

An employee who suffers a gradual injury due to repetitive trauma is eligible for benefits under the Act, but he must meet the same standard of proof as a petitioner alleging a single, definable accident. Three "D" Discount Store v. Industrial Comm'n, 198 Ill. App. 3d 43, 47, 556 N.E.2d 261, 264 (1989). Proof that the relationship of employer and employee existed at the time of the accident is one of the elements of an award under the Act. Beletz v. Industrial Comm'n, 42 Ill. 2d 188, 192, 246 N.E.2d 262, 265 (1969). The date of the accidental injury in a repetitive-trauma case is the date on which the injury "manifests it- self." Peoria County Belwood Nursing Home v. Industrial Comm'n, 115 Ill. 2d 524, 531, 505 N.E.2d 1026, 1029 (1987).

The Commission set the manifestation date at June 22, 1993, the date Schlenker told claimant of his diagnosis. The manifestation date is the date on which both the fact of the injury and the causal rela- tionship of the injury to the claimant's employment would have become plainly ...


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