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Sisbro, Inc. v. Industrial Commission

February 08, 2002


Appeal from the Circuit Court of Adams County. No. 00-MR-00024 Honorable Dennis R. Cashman, Judge, Presiding.

The opinion of the court was delivered by: Justice O'malley


The claimant, George Rodriguez, sought benefits under the Workers' Compensation Act (Act) (820 ILCS 305/1 et seq. (West 1998)), for a degenerative condition in his right foot that he alleged was precipitated when he twisted his ankle in disembarking from a truck on March 26, 1998, while delivering dairy products for his employer, Sisbro, Inc. (Sisbro). The arbitrator awarded claimant temporary total disability payments and medical expenses. The Industrial Commission (Commission) corrected arithmetical errors in the arbitrator's decision and awarded claimant 61 and 1/7 weeks of temporary total disability payments (TTD) at an average weekly wage of $1,152.51 and $983.65 for medical expenses. The Commission otherwise affirmed and adopted the decision. The circuit court confirmed the Commission's decision. We reverse.


It is undisputed that on March 26, 1998, claimant twisted his right ankle when he stepped into a pothole in disembarking from his truck while delivering dairy products for Sisbro. Also undisputed is that claimant subsequently was diagnosed with a degenerative condition in his foot known as Charcot arthropathy, which prevented him from working for several weeks.

At the arbitration hearing, claimant offered the deposition testimony of Dr. Brennan Reed, a podiatrist. Dr. Reed testified that he has treated claimant for several years for foot problems related to claimant's diabetes, including ulcerations on the bottoms of the feet. Dr. Reed explained that claimant suffers from diabetic neuropathy, a condition that affects the sensory nervous system, causing decreased sensitivity in the extremities to pain and temperature and thereby weakening the individual's protective mechanism. Neuropathy involves the autonomic and muscular nervous systems as well. Dr. Reed testified that he saw claimant on April 6, 1998, for a routine preventative care appointment. At that time, claimant mentioned that he had twisted his right ankle at work and experienced pain in his foot and ankle, which had decreased since the accident. Because he saw no swelling and detected no pathology in palpating the foot, Dr. Reed decided not to x-ray it. Dr. Reed testified claimant returned to his office on April 24, 1998, complaining that he had experienced swelling and pain in the foot over the past week. Dr. Reed found that the foot was red and grossly swollen. Claimant experienced mild pain upon palpation. X-rays revealed marked chronic degenerative changes involving the ankle as well as the presence of multiple osteophytes. There was marked soft tissue swelling but no evidence of acute fracture or dislocation. Dr. Reed diagnosed "acute onset of diabetic Charcot osteoarthropathy." Charcot, Reed explained, is a destruction or breakdown of the joints in the extremities. Charcot usually is initiated by trauma. Even "very minor trauma" can initiate it. A subject suffering from decreased sensitivity due to diabetic neuropathy might develop Charcot as the consequence of "insidious" trauma, that is, trauma of which he was unaware at the time it occurred. Dr. Reed testified that he was "absolutely" sure that claimant's Charcot arthropathy was causally related to his work-related accident of March 26, 1998. Dr. Reed explained that the main treatment for Charcot arthropathy in an extremity is to decrease the amount of weight the extremity bears to avoid further deterioration.

Dr. Reed testified on cross-examination that some Charcot patients cannot recall any specific trauma that might have triggered the condition. Dr. Reed acknowledged that "really anything" can cause the trauma, even "stepping off of a curb or walking on uneven ground [or] stepping on a stone." Charcot can be caused by insidious trauma that does not leave evidence of itself--e.g., trauma associated with walking on an uneven surface. Trauma leading to Charcot can also be caused even by the subject's wearing shoes to which he is unaccustomed. Foot ulcerations like claimant has also can lead to Charcot. Asked how soon he would expect to see evidence of Charcot in a subject following trauma to the subject's foot, Dr. Reed replied, "It can be as early as immediate as far as swelling that could occur with a trauma that doesn't resolve, it just continues, or it can be as late as several weeks." Asked whether "the Charcot syndrome could have been caused by a trauma that [claimant] was unaware of because of the neuropathy problems in his foot," Dr. Reed replied in the affirmative. Asked whether "any trauma could have caused the Charcot," Dr. Reed replied in the affirmative. Dr. Reed stated that claimant could have developed the Charcot simply by "stepping off a curb" or "stepping on top of a stone." Dr. Reed admitted that Charcot arthropathy "is still somewhat of an enigma." Nonetheless, Dr. Reed maintained that claimant did not already have Charcot in his right foot at the time of the March 1998 accident.

On redirect, Dr. Reed, when asked to take into account claimant's prior history of diabetes and foot ulcerations and all examinations he performed on claimant from April 6, 1998, to the present, reiterated his opinion that, within a reasonable degree of medical certainty, claimant's Charcot arthropathy was causally related to his work-related accident of March 1998. Asked if it was more likely that claimant's Charcot arthropathy was caused by the accident in March 1998 than by some insidious trauma simply because claimant had felt the former trauma and brought it to his attention, Dr. Reed replied, "Yes."

Sisbro offered the evidence deposition of Dr. John Gragnani, who examined claimant at Sisbro's request. Dr. Gragnani testified that he specializes in physical medicine and rehabilitation and is board certified in occupational and environmental medicine. Dr. Gragnani agreed with Dr. Reed that claimant suffers from diabetic neuropathy and has Charcot arthropathy in the right ankle and foot. Dr. Gragnani explained that persons with neuropathy tend to place more stress on their joints because they have decreased sensation. A joint becomes afflicted with Charcot when it is traumatized but is not given occasion to heal because the neuropathy prevents the subject from sensing the level of stress he places on the joint. Left untreated, a Charcot joint deteriorates over time. Dr. Gragnani opined, within a reasonable degree of medical certainty, that the Charcot arthropathy in claimant's ankle could not have been caused by the March 26, 1998, accident. He explained that the advanced Charcot deterioration evidenced by x-rays taken on April 24, 1998, could not have developed in only a month. Moreover, the fact that the joint was "cold" and lacked edema on that date indicated that the Charcot deterioration was not an "acute process" but a "long-standing old process." Dr. Gragnani explained that Charcot joints "don't develop in a matter of days," but over the course of "several months." Dr. Gragnani agreed with Dr. Reed that even minor trauma can result in a Charcot joint. He stated that "[w]alking around normally will cause" a person with diabetic neuropathy "eventually to develop [sic] a Charcot joint."

Dr. Gragnani also denied the possibility that claimant might have aggravated a pre-existing Charcot condition by twisting his right ankle in March 1998. Dr. Gragnani explained that only a "significant injury" could have aggravated or accelerated a Charcot condition in claimant's foot. If claimant's twisting his ankle caused a "significant injury," there would have been immediate swelling and redness in the ankle, but Dr. Reed did not find evidence of injury when he examined claimant on April 6, 1998.

Acknowledging that there was conflicting expert testimony on the issue of causation, the arbitrator found Dr. Reed's testimony "more credible" than that Dr. Gragnani's. The arbitrator concluded that claimant's "current of condition of ill-being, being Charcot osteoarthropathy, is causally related to his injury" at work in March 1998.


Sisbro does not dispute the Commission's finding of a causal connection but instead urges that the Commission "ignored the applicable standard of law" by failing to consider whether claimant's injury "falls under the general exception to compensation where recovery is denied when a Petitioner's health is so deteriorated that any normal daily activity is an overexertion." Sisbro argues that, despite the existence of a causal connection between the accident in March 1998 and claimant's Charcot, claimant is not entitled to compensation because Drs. Reed and Gragnani agreed that even minor trauma can cause the onset of Charcot arthropathy in claimant.

Sisbro's statement of the law is accurate. The claimant in a workers' compensation case bears the burden of proving all elements of his claim by a preponderance of the evidence. Parro v. Industrial Comm'n, 260 Ill. App. 3d 551, 553 (1993). The employer takes the employee as it finds him. County of Cook v. Industrial Comm'n, 69 Ill. 2d 10, 17 (1977). An employer is not relieved from providing compensation by the mere fact that the condition of ill-being for which compensation is sought was brought about by a condition that pre-existed the accident. O'Fallon School Dist. No. 90 v. Industrial Com'n, 313 Ill. App. 3d 413, 417 (2000). A claimant is entitled to compensation if he can demonstrate that his work-related accident was a causative factor in the aggravation or acceleration of his pre-existing condition. Johns-Manville Products Corp. v. Industrial Comm'n, 78 Ill. 2d 171, 177 (1979). "The sole limitation to the above general rule is that where it is shown the employee's health has so deteriorated that any normal daily activity is an overexertion, or ...

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