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Sisbro, Inc. v. Industrial Commission

May 22, 2003

SISBRO, INC., APPELLEE,
v.
THE INDUSTRIAL COMMISSION ET AL. (GEORGE RODRIGUEZ, APPELLANT).



The opinion of the court was delivered by: Chief Justice McMORROW

UNPUBLISHED

Docket No. 93729-Agenda 8-March 2003.

Claimant, George Rodriguez (claimant), twisted his ankle as he stepped out of a delivery truck and into a pothole while making a delivery of dairy products for his employer, Sisbro, Inc. (Sisbro). The Industrial Commission awarded claimant workers' compensation benefits, finding that there was a causal relationship between this work-related injury and the acute onset of a degenerative condition in claimant's right foot-Charcot osteoarthropathy. The circuit court confirmed the award.

On appeal, the Appellate Court, Industrial Commission Division, reversed the judgment of the circuit court, ruling that claimant's condition was not compensable under the Worker's Compensation Act because claimant's health had deteriorated to such an extent that normal daily activity could have caused the injury (the "normal daily activity exception") or because the activity which caused the injury presented risks no greater than those to which the general public is exposed. 327 Ill. App. 3d 868.

We granted claimant's petition for leave to appeal (177 Ill. 2d R. 315(a)), and now reverse the judgment of the appellate court and affirm the judgment of the circuit court.

BACKGROUND

Claimant filed an application for adjustment of claim seeking disability benefits from his employer pursuant to the Workers' Compensation Act (the Act). 820 ILCS 305/1 et seq. (West 2000). Claimant alleged that an accidental injury arising out of and in the course of his employment was causally related to the onset of a degenerative condition in his right foot-Charcot osteoarthropathy-which caused him to be disabled and unable to work. Sisbro disputed the claim on three points: (1) whether the accidental injury arose out of and in the course of employment, (2) whether claimant's disabling condition was causally related to his injury, and (3) the amount of claimant's annual earnings. On July 6, 1999, a hearing was held before an arbitrator to resolve the disputed matters.

At this hearing, the arbitrator learned that claimant was a 54-year-old male who had been afflicted with Type II (adult onset) diabetes for the past six years. For the past 2½ years, claimant was employed by Sisbro as a delivery truck driver. Claimant's job required him to drive an 18-wheeler truck to St. Louis to pick up dairy products and then deliver them to various grocery stores in Illinois. Claimant also was required to load the truck at St. Louis and off-load product from the truck at various grocery stores.

Claimant testified before the arbitrator that, on March 26, 1998, after backing into the docking area of Peavly Dairy to pick up a load of dairy products, he twisted his right ankle when he stepped down out of the truck and into a pothole. Claimant testified that, at the time of the incident, he felt pain and his right ankle swelled slightly. The swelling and pain resolved within a few days.

Claimant testified that he visited a podiatrist, Dr. Reed, on April 6, 1998, for preventative foot care in relation to his diabetes. Although claimant had no pain or swelling in his ankle at that time, he informed the doctor of the March 26 accident and was advised to notify the doctor if his condition changed. Over the next few weeks, claimant's ankle began to swell repeatedly and the swelling would not resolve. Claimant saw Dr. Reed again on April 24, 1998, at which time X rays were taken and tests were performed. Based on these tests, claimant was diagnosed with Charcot osteoarthropathy and ordered to stay off his foot.

Claimant supported his claim with the May 26, 1999, evidence deposition of Dr. Brennan R. Reed, a podiatric orthopedist and claimant's treating physician. In this deposition, Dr. Reed testified that he began treating claimant in 1995, when claimant suffered a broken toe. Since that time, Dr. Reed saw claimant about every two to three months for preventative foot care in conjunction with claimant's diabetes. Dr. Reed explained that diabetes causes accelerated vascular disease and neuropathy (nerve damage) and, accordingly, diabetics are susceptible to an increased risk of injury to their lower extremities.

Dr. Reed testified that he examined claimant's feet on April 6, 1998, as part of a regularly scheduled preventative care visit. At that time, claimant mentioned that he had twisted his ankle a few days earlier and had experienced some pain and swelling in his ankle and foot. Dr. Reed observed no evidence of pathology at the time of this exam and, consequently, took no action. On April 24, 1998, however, claimant contacted Dr. Reed's office complaining of pain and swelling in his right ankle and foot. Dr. Reed saw claimant that same day and the exam revealed that claimant "had gross swelling, which is edema, and heat or erythema of the right foot, entire ankle, dorsal foot and his digits as well. The foot was also ruborous, which means red in coloration, and there was mild pain to deep palpation of the dorsal mid-foot over what we call the Lis Francs." X rays of claimant's foot showed "marked chronic degenerative changes involving the ankle." Based on these X rays, Dr. Reed diagnosed claimant's condition to be "acute onset of diabetic Charcot osteoarthropathy." Dr. Reed defined Charcot as a condition associated with the destruction of the bone and tissue of the joint caused by an underlying neurological involvement, often related to diabetes. The recommended treatment for Charcot is to keep the joint rested to give the joint an opportunity to heal and to avoid any further injury or destruction. For this reason, claimant's leg was placed in a cast for support and claimant was advised to keep the leg elevated and to avoid placing any weight on the leg. Accordingly, claimant was unable to work.

When asked about what might have caused Charcot to develop in claimant's right ankle, Dr. Reed explained that Charcot is typically initiated by some type of trauma. Dr. Reed admitted that, in some instances, the trauma may be minor. The mere act of stepping off a curb, walking on uneven ground, or wearing uncomfortable shoes may trigger Charcot. In the present case, however, it was Dr. Reed's opinion, based on a reasonable degree of medical certainty, that the trauma which initiated the onset of Charcot in claimant's right ankle was the work-related accident on March 26, 1998, when claimant twisted his ankle stepping down from his truck. Dr. Reed testified that, in his opinion, claimant had the underlying neuropathy, but had not developed Charcot in his right ankle prior to March 26, 1998. The accident, he said, triggered the acute onset of Charcot osteoarthropathy.

Sisbro offered an opposing expert opinion through the evidence deposition of Dr. John Gragnani, a physician who is board certified in occupational and environmental medicine and specializes in physical medicine and rehabilitation. At the request of Sisbro, Dr. Gragnani examined claimant once on July 6, 1998. Based on this single examination and a review of claimant's medical records, Dr. Gragnani offered the opinion that the Charcot condition in claimant's right ankle was a "much more long-standing condition" which pre-existed March 26, 1998. In his view, the Charcot joint developed slowly over time as a result of claimant's poorly controlled diabetes, the related neuropathy, and "microtraumas" to the feet caused by everyday living.

After considering all of the evidence, the arbitrator issued a written memorandum of decision on September 17, 1999. The arbitrator ruled that claimant's act of twisting his ankle was an accident which arose out of and in the course of his employment with Sisbro. Further, the arbitrator held:

"Based on [the claimant's] uncontradicted testimony regarding the onset of his condition, and the more credible opinions of Dr. Reed, the Arbitrator finds that [the claimant's] condition of ill- being, being Charcot osteoarthropathy, is causally related to his injury."

The arbitrator ruled that claimant had been temporarily and totally disabled for a period of 62 and 3/7 weeks and found claimant eligible to receive compensation for this period. The arbitrator also awarded claimant the further sum of $983.65 in medical expenses and ruled that the current award of temporary total disability compensation would not be a bar to any further hearings for additional amounts of temporary total disability compensation or for compensation for permanent disability.

Sisbro filed a petition for review with the Industrial Commission pursuant to section 19(b) of the Act. 820 ILCS 305/19(b) (West 2000). Upon review, the Industrial Commission affirmed and adopted the decision of the arbitrator in a written order dated March 16, 2000. In addition, the Commission remanded the matter to the arbitrator "for further proceedings for a determination of a further amount of temporary total compensation or of compensation for permanent disability, if any, pursuant to Thomas v. Industrial Comm'n, 78 Ill. 2d 327 (1980)."

Sisbro sought review of the Industrial Commission's decision in the circuit court of Adams County. In a hearing before Judge Dennis K. Cashman, counsel for Sisbro argued:

"This case, I believe, is a classic example of a case where the [claimant's] injury did not arise out of employment. I believe it should be analyzed under the cases I have set out to you in my brief, principally that of ...


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