Opinion
4-21-0236WC
05-26-2022
UNIVERSITY OF ILLINOIS, Appellant, v. ILLINOIS WORKERS' COMPENSATION COMMISSION, et al., (Clyde Gum, Appellees).
This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Sixth Judicial Circuit, Champaign County, Illinois Circuit No. 20-MR-809 Honorable Benjamin W. Dyer, Judge, Presiding.
PRESIDING JUSTICE HOLDRIDGE delivered the judgment of the court. Justices Hoffman, Hudson, Cavanagh, and Barberis concurred in the judgment.
ORDER
HOLDRIDGE PRESIDING JUSTICE
¶ 1 The Commission's finding that the claimant sustained a repetitive trauma injury arising out of and in the course of his employment was against the manifest weight of the evidence where there was evidence that the claimant had preexisting degenerative conditions and the claimant presented no medical opinions suggesting that his injury was caused by his work activities rather than the normal progression of his degenerative conditions.
¶ 2 The claimant, Clyde Gum, filed a claim for benefits under the Workers' Compensation Act (Act) (820 ILCS 305/1 et seq. (West 2014)) against the respondent, University of Illinois (employer), for a repetitive trauma injury to his left shoulder that he allegedly sustained while working for the employer. After conducting a hearing, Arbitrator Hemenway found that the claimant had sustained a repetitive trauma injury that arose out of and in the course of his employment and that the current condition of ill-being in the claimant's left shoulder was causally related to the accident. The arbitrator awarded temporary total disability (TTD) benefits, permanent partial disability (PPD) in the amount of 12.5 percent loss of the person-as-a-whole, and expenses for reasonable and necessary medical services related to the treatment of the work-related injury.
¶ 3 The employer appealed the arbitrator's decision to the Illinois Workers' Compensation Commission (Commission). The Commission (Commissioners Tyrrell and Portela) included supplemental facts in support of the arbitrator's award of PPD, and otherwise affirmed and adopted the arbitrator's decision in its entirety.
¶ 4 Commissioner Doerries dissented. She concluded that the claimant had failed to prove either a work-related accident or causation because the claimant had presented no expert medical opinion in support of his claim, which Commissioner Doerries believed was essential under the circumstances.
¶ 5 The employer sought judicial review of the Commission's decision in the circuit court of Champaign County, which confirmed the Commission's decision.
¶ 6 This appeal followed.
¶ 7 FACTS
¶ 8 The claimant has worked for the employer for more than 19 years. At all relevant times he was employed as a driver. As part of his job he operates pickup trucks, dump trucks, flatbeds, and trash trucks, among other vehicles. During the winter months, when it snowed, the claimant would operate snow removal and salting vehicles. During the winter of 2014, the claimant drove a normal four-wheel drive pickup truck to plow the snow. He testified that, when he was plowing, he primarily used his left arm to move the steering wheel because the plow controls are in the center of the truck and he needed to use his right arm to operate the plow controls. He did not testify that the pickup truck he drove required any additional force to turn the steering wheel.
¶ 9 On February 27, 2014, the claimant reported to work and began plowing snow. He noticed that his left shoulder was tired and sore during his shift. After he competed his shift, he struggled to hang the keys he had been using that day with his left arm. The claimant told his foreman, Stan Gudeman, that his left shoulder had been bothering him.
¶ 10 The claimant testified that the pain in his left shoulder began in mid-January of 2014 while he was plowing snow. He stated that he would have to take breaks because his shoulder would be sore and tired. His shoulder would get sore when he plowed continuously but the pain would go away when he stopped. He testified that there was an unusual amount of snowfall during the winter of 2014. After they would get the snow cleaned up, it would start again. He would work up to 16 hours in a shift.
¶ 11 During the winter of 2014, the claimant was assigned to clear the upper parking decks. Those decks are not very large and there are designated areas where the snow has to be piled to keep it out of the way. In order to work the steering wheel with his left hand, the claimant would have to hold his left arm in front of him at about shoulder height and constantly make clockwise and counterclockwise turns. The claimant testified that plowing the upper decks was significantly more stressful on his left arm than plowing a flat roadway or larger space due to the close quarters and the frequent rotating of the steering wheel. While plowing the upper parking decks, at times he would have turn the steering wheel very quickly. He would notice pain, soreness, tiredness, and weakness in his left shoulder that got progressively worse through February 27, 2014. At that time, he was having significant difficulties and considered medical treatment.
¶ 12 The claimant filled out an injury report on February 28, 2014. The description of the injury states, "strained my shoulder from plowing while driving with one hand." The report notes the body part injured is the left shoulder. The report identifies the date of injury as January 6, 2014, and it states that the claimant reported the injury to the foreman on February 27, 2014. The claimant testified that he had written the date of injury as January 6, 2014, because that was the date of the first big snowfall in January and his foreman advised him to use that date. The claimant testified that there was not one singular trauma to his left shoulder. Rather, his symptoms became progressively worse while plowing from mid-January through February 27, 2014, which he testified was the date it became apparent to him that he had developed a left shoulder injury from the plowing.
¶ 13 Gudeman filled out an injury report and dated it March 3, 2014. The report identifies the date of accident as January 6, 2014, and indicates that the injury was reported on February 27, 2014. The report reflects that the claimant had injured his left shoulder while plowing when he turned the steering wheel with one hand while "raising [the] plow with [the] other hand." The report states that "steering wheel pressure" is what directly harmed the claimant. Gudeman also wrote that the report that the claimant should avoid doing repetitive motions for long times as a corrective measure and as a means to prevent recurrence of the injury.
¶ 14 On March 18, 2014, the claimant saw Dr. Narain Mandhan, his primary care physician, seeking medical treatment for his left shoulder condition. The clamant testified that he did not seek treatment immediately after February 27, 2014, because he was waiting for a decision as to whether he should see an occupational medicine physician or his own doctor. The claimant told Dr. Mandhan that he had sustained an injury to his left shoulder that happened at work. He rated his pain at a level 9 out of 10. He reported experiencing left shoulder pain since January which was getting worse. The claimant told Dr. Mandhan that he worked a snowplow at the University of Illinois and had to put in a lot of hours because of the cold weather and snow. He reported pain and stiffness in his left shoulder and said that he was having difficulty with certain movements involving the left shoulder. Dr. Mandhan diagnosed left shoulder tendinitis and ordered an x-ray. The x-ray showed moderate degenerative change of the acromioclavicular (AC) joint with joint space narrowing and prominent spurring. Dr. Mandhan prescribed physical therapy.
¶ 15 The claimant presented for physical therapy on March 20, 2014. At that time, the claimant reported that he began noticing left shoulder pain after driving a snowplow for extended hours that winter and had pain with left shoulder movement. He also had pain while reaching up for keys on a hook at work. He rated his current pain level at 6 out of 10. The treatment plan was for the claimant to undergo physical therapy one to two times per week for six weeks.
¶ 16 On April 17, 2014, Dr. Mandhan ordered an MRI of the claimant's left shoulder, which was performed on April 22, 2014. The MRI showed "no significant rotator cuff tears," but it revealed marginal spurring, subacromial bursitis, degenerative changes in the AC joint, cystic change of the humerus, and probable mild tendinosis of the rotator cuff. The claimant had been on pain medication for the left shoulder pain, which he reported did not help. He rated his pain at a level 5 to 6 out of 10. Dr. Mandhan referred the claimant to Dr. Jacob Sams, an orthopedic specialist.
¶ 17 The claimant saw Dr. Sams on May 1, 2014. He reported that he had an injury at work and that in January 2014 he was performing snow removal, doing a lot of one-handed driving and working 12 to 16 hours shifts. He complained of left shoulder pain and reported experiencing pain while reaching overhead. He rated his pain level at a 6 to 7 out of 10.
¶ 18 On examination, Dr. Sams noted that range of motion and overhead motion was clearly painful, that Hawkins sign was positive (indicating impingement in the claimant's shoulder), and that strength in the left supraspinatus was limited due to pain. Dr. Sams also noted tenderness with palpation over the AC joint and the acromion. After examining the claimant and reviewing the MRI, Dr. Sam diagnosed the clamant with rotator cuff tendinitis and impingement syndrome. He interpreted the MRI as showing AC joint osteoarthritis and a "possible full thickness tear of the rotator cuff." Dr. Sams gave the claimant an injection and recommended additional physical therapy. He noted that, if the claimant failed to show moderate improvement within the following two weeks, surgery should be considered. The surgery would consist of a left shoulder arthroscopy, subacromial decompression and acromioplasty and distal clavicle excision.
¶ 19 The claimant continued attending physical therapy thereafter. On May 5, 2014, he reported significant improvement from the injection. Three days later, he reported more soreness after he had been "lifting a lot" at work. On May 12, 2014, he reporting digging holes for three rose bushes the previous day and indicated that his shoulder "didn't bother him too much." On May 15, 2014, the therapist noted that the claimant had made minimal progress and had not yet met the physical therapy goals.
¶ 20 On June 5, 2014, the claimant returned to Dr. Sams complaining of worsening left shoulder pain. The claimant stated that the improvement from the injection five weeks prior had worn off and his shoulder was back to feeling as it was prior to the injection. Dr. Sams recommended that the claimant undergo the surgery as previously discussed.
¶ 21 On June 16, 2014, Dr. Sams operated on the claimant's left shoulder. He performed a left shoulder arthroscopy with rotator cuff repair, distal clavicle excision arthroscopically, and subacromial decompression with partial acromioplasty. In his postoperative report, Dr. Sams confirmed that the claimant had a full-thickness rotator cuff tear involving the supraspinatus.
¶ 22 On July 22, 2014, the claimant returned to Dr. Sams and reported minimal discomfort. Dr. Sams prescribed physical therapy. He put the claimant on work restrictions of no use of the left upper arm.
¶ 23 The claimant underwent the recommended physical therapy. Thereafter, he reported continued soreness and weakness in his left upper arm left with activity during physical therapy.
¶ 24 After completing six weeks of physical therapy, the claimant felt improvement but still had impaired strength and range of motion. He returned to Dr. Sams on February 5, 2015. Dr. Sams released the claimant from his care and cleared him to return to work full-duty as of February 19, 2014.
¶ 25 The claimant testified that he is currently working full duty for the employer in the same capacity as a driver. He testified that he had suffered no new injuries to his left shoulder since February 27, 2014. The claimant stated that he can no longer do as much overhead work as he used to due to lack of strength and limited range of motion in his left shoulder. He testified that his left shoulder tires significantly faster than it did before his injury.
¶ 26 The arbitrator found that the claimant had sustained an injury to his left shoulder secondary to repetitive trauma manifesting on February 27, 2014, that arose out of and in the course of his employment, and that the current condition of ill-being in the claimant's left shoulder was causally related to the accident. The arbitrator stated that she had relied primarily on the claimant's "credible denial of any left shoulder problems or treatment before mid-January 2014" and his "very detailed" testimony concerning: (1) the recurrent snowfalls occurring between mid-January 2014 and February 27, 2014; (2) the 16-hour shifts he worked during that period; (3) his need to exclusively use his left hand and arm to steer the snow plow, "secondary to ergonomic and safety factors"; (4) the positioning of his left arm at shoulder height due to the need to frequently rotate the steering wheel in opposite directions while plowing snow in tight spaces, such as the top deck of his assigned parking structure; and (5) the transient relief that post-snowfall rest periods provided. The arbitrator noted that "no one affiliated with [the employer] refuted any aspect of this testimony," and that Gudeman's injury report corroborated the claimant's account of his injury.
¶ 27 The arbitrator acknowledged that the claimant did not offer any medical testimony on the issue of causation. However, citing the Illinois Supreme Court's decision in Westinghouse Electric Co. v. Industrial Comm'n, 64 Ill.2d 244 (1976), and our appellate court's decision in Nunn v. Industrial Comm'n, 157 Ill.App.3d 470 (1987), the arbitrator opined that our court "has noted that such testimony is not required to establish a compensable injury where the nature and effect of the work activities is within the common knowledge of laypeople." The arbitrator concluded that medical testimony as to causation was not needed in this case because "the one-handed steering and maneuvering in tight spaces that [the claimant] described are certainly within a layperson's comprehension."
¶ 28 The arbitrator awarded TTD benefits, PPD benefits in the amount of 12.5 percent loss of the person-as-a-whole, and expenses for reasonable and necessary medical services related to the treatment of the claimant's work-related injury.
¶ 29 The employer appealed the arbitrator's decision to the Illinois Workers' Compensation Commission (Commission), which affirmed and modified the arbitrator's decision. The Commission included supplemental facts in support of the arbitrator's award of PPD, and otherwise affirmed and adopted the arbitrator's decision in its entirety.
¶ 30 Commissioner Doerries dissented. She found that because the mechanics of the claimant's alleged injury and the medical causation issues presented by the evidence were outside the knowledge of laypersons, the claimant could not establish a work-related accident or causation without presenting expert medical opinion testimony. She found the arbitrator's reliance on Westinghouse to be misplaced because Westinghouse involved an injury that was traceable to a particular time and place rather than a repetitive trauma, as was alleged here. She further sated that Nunn required reversal of the Commission's decision because Nunn holds that: (1) expert testimony is required "where the question is one within the knowledge of experts only and not within the common knowledge of laypersons"; and (2) this "is especially true" in a repetitive trauma cases because in such cases "there must be a showing that the injury is work-related and not the result of a normal degenerative aging process." Nunn, 157 Ill.App.3d at 470.
¶ 31 Commissioner Doerries concluded that, "Whether the act of steering a pick-up truck is sufficiently repetitive, whether it required force, how much force was required, whether breaks would be necessary or would impact the progression of the condition, whether the repetition and force together were the cause, or a cause, of his left shoulder rotator cuff tear, impingement syndrome and acromioclavicular joint osteoarthritis, are all outside the knowledge of laypersons and, pursuant to Nunn, require a medical opinion to establish causation. [The claimant] presented no medical opinion that his condition was caused by one-handed steering of a normal pick-up truck and not the result of the normal degenerative aging process. As such, he did not meet his burden of proof and the case should be reversed."
¶ 32 The employer sought judicial review of the Commission's decision in the circuit court of Champaign County. Although the circuit court found the claimant's case was a "close one," it found the evidence of the vigorous nature of the repetitive activities performed by the claimant at work, the mechanics of those activities, and the onset of the claimant's pain symptoms while working provided sufficient circumstantial evidence to support the claimant's theory of a repetitive trauma arising out of work that was causally connected to his current condition of ill-being. Accordingly, it affirmed the Commission's decision.
¶ 33 This appeal followed.
¶ 34 ANALYSIS
¶ 35 The employer argues that the Commission erred in finding a work-related accident and causation.
¶ 36 As an initial matter, the parties dispute the applicable standard of review. The employer argues that we should review the Commission's decision de novo because the facts are undisputed and support only one reasonable inference. Although the claimant concedes that the facts are undisputed, he maintains that the manifest weight of the evidence standard applies because more than one reasonable inference can be drawn from them.
The circuit court erroneously applied a clear error standard of review, which does not apply in workers' compensation cases. Rechenberg v. Illinois Workers' Compensation Comm 'n, 2018 IL App (2d) 170263, ¶ 43.
¶ 37 We agree with the claimant. Some of the facts in this case are susceptible to more than one reasonable inference. For example, it is not certain whether the arm and shoulder movements that the claimant performed while driving his snow plow are medically capable of causally contributing to an injury like the one the claimant sustained. Moreover, the fact that Dr. Sams noted a "possible" full-thickness tear on the claimant's MRI and confirmed the existence of such a tear during the subsequent surgery does not definitely resolve when the claimant sustained that tear (i.e., before the onset of his symptoms or after). Accordingly, we apply the manifest weight standard of review. Village of Winnetka v. Industrial Comm'n, 250 Ill.App.3d 240, 242-43 (1993) (reviewing Commission's decision under the manifest weight standard where the undisputed facts presented more than one reasonable inference).
¶ 38 Turning to the merits, the employer argues that the Commission's finding that the claimant proved a work-related accident was against the manifest weight of the evidence.
¶ 39 To obtain benefits under the Act, a claimant must establish by a preponderance of the evidence that he sustained an accidental injury "arising out of" and "in the course of" his employment. 820 ILCS 305/1(d) (West 2014); McAllister v. Illinois Workers' Compensation Comm'n, 2020 IL 124848, ¶ 32; Sisbro, Inc. v. Industrial Comm'n, 207 Ill.2d 193, 203 (2003) (collecting cases). The "arising out of" component is primarily concerned with causal connection. McAllister, 2020 IL 124848, ¶ 36. An injury is said to "arise out of" one's employment if its origin is in some risk connected with or incidental to the employment so that there is a causal connection between the employment and the accidental injury. Id.; Caterpillar Tractor Co. v. Industrial Comm'n, 129 Ill.2d 52, 58 (1989). A risk is "incidental to the employment" when it belongs to or is connected with what the employee has to do in fulfilling his or her job duties. McAllister, 2020 IL 124848, ¶ 36; Purcell v. Illinois Workers' Compensation Comm'n, 2021 IL App (4th) 200359WC, ¶ 18.
¶ 40 An injury is considered "accidental" under the Act if it is caused by the performance of a claimant's job, even though it develops gradually over a period of time as a result of repetitive trauma. Peoria County Belwood Nursing Home v. Industrial Comm'n, 115 Ill.2d 524, 529-30 (1987); Fierke v. Industrial Comm'n, 309 Ill.App.3d 1037, 1040 (2000). A claimant alleging a repetitive trauma need not prove a specific traumatic injury or a "final, identifiable episode of collapse" during which the claimant's bodily structure suddenly gave way. Luttrell v. Industrial Comm'n, 154 Ill.App.3d 943, 957 (1987).
¶ 41 However, an employee who alleges injury based on repetitive trauma must meet the same standard of proof as other workers' compensation claimants alleging "accidental injury"; there must be a showing that the injury is work-related and not a result of the normal degenerative aging process. Peoria County Belwood Nursing Home, 115 Ill.2d at 530; Edward Hines Precision Components v. Industrial Comm'n, 356 Ill.App.3d 186, 194 (2005). The date of injury in repetitive trauma cases is the date on which the injury manifests itself, meaning the date on which the fact of the injury and the causal relation to work would have become plainly apparent to a reasonable person. Edward Hines Precision Components, 356 Ill.App.3d at 194.
¶ 42 In cases alleging repetitive trauma, the claimant generally relies on medical testimony establishing a causal connection between the work performed and claimant's disability. Peoria County Belwood Nursing Home, 115 Ill.2d at 530; Nunn, 157 Ill.App.3d at 477. Although medical testimony as to causation is not necessarily required, "where the question is one within the knowledge of experts only and not within the common knowledge of laypersons, expert testimony is necessary to show that claimant's work activities caused the condition complained of." Nunn, 157 Ill.App.3d a 477-78; see also Johnson v. Industrial Comm'n, 89 Ill.2d 438 (1982). Cases involving aggravation of a preexisting condition primarily concern medical questions and not legal questions. Berry v. Industrial Comm'n, 99 Ill.2d 401 (1979); Nunn, 157 Ill.App.3d at 478. This is especially true in repetitive trauma cases. Nunn, 157 Ill.App.3d at 478. Where there is evidence of a preexisting degenerative condition, medical opinion evidence is necessary to establish a causal connection between the repetitive trauma injury and the claimant's work duties. Johnson, 89 Ill.2d 438 (upholding reversal of Commission's award of benefits where the claimant presented no medical opinion evidence suggesting that her repetitive trauma injuries were caused or could have been caused by her work activities); Nunn, 157 Ill.App.. 3d at 478 (affirming Commission's finding of no accident arising out of the employment where the claimant had a history of prior back problems and degenerative disc disease, she presented no expert medical testimony that might have established whether or not her current back condition had "developed over a period of several years" before she began the relevant repetitive work activities, and the only evidence connecting the claimant's back condition to her work duties was the claimant's own undisputed testimony, which the Commission was entitled to find not credible). ¶ 43 Whether the claimant sustained an accidental injury that arose out of and in the course of his employment is a question of fact to be determined by the Commission. McAllister, 2020 IL 124848, ¶ 30; Hosteny v. Illinois Workers' Compensation Comm'n, 397 Ill.App.3d 665, 674 (2009). In resolving disputed issues of fact, it is the Commission's province to assess the credibility of witnesses, draw reasonable inferences from the evidence, determine what weight to give testimony, and resolve conflicts in the evidence. Hosteny, 397 Ill.App.3d at 675. We will overturn the Commission's finding only when it is against the manifest weight of the evidence. Id. A factual finding is against the manifest weight of the evidence only if the opposite conclusion is "clearly apparent." Swartz v. Industrial Comm'n, 359 Ill.App.3d 1083, 1086 (2005). The test is whether the evidence is sufficient to support the Commission's finding, not whether this court or any other tribunal might reach an opposite conclusion. Pietrzak v. Industrial Comm'n, 329 Ill.App.3d 828, 833 (2002). Although reviewing courts are reluctant to conclude that a factual determination of the Commission is against the manifest weight of the evidence, we will not hesitate to do so where the clearly evident, plain, and undisputable weight of the evidence compels an opposite conclusion. McAllister, 2020 IL 124848, ¶ 30.
¶ 44 In this case, the claimant failed to prove by a preponderance of the evidence that he sustained a repetitive trauma injury arising out of his employment. The medical records revealed that the claimant had osteoarthritis and other preexisting degenerative conditions in his left shoulder. The claimant presented no expert medical opinion, medical evidence, or any other evidence suggesting that his injuries were work related and not merely the result of a normal degenerative process in his left shoulder. The only evidence that the claimant presented connecting his injuries to his employment was his own unrebutted testimony regarding the repetitive work duties he performed, the arm and shoulder movements he made while performing those duties, and the increased frequency of those movements in the months leading up to the manifestation of his injury. However, even assuming arguendo that this testimony was credible, it merely established a correlation between his increased work activities and the occurrence of his symptoms. The claimant's testimony did not, and could not, establish that his injuries were the result of his employment, as opposed to the natural progression of his preexisting degenerative conditions. Because this question is not within the common knowledge of a layman, only a medical opinion from an expert or a treating physician could provide evidence of causal connection. As noted, no such evidence was presented here.
¶ 45 The Commission found that medical testimony as to causation was not needed in this case because "the one-handed steering and maneuvering in tight spaces that [the claimant] described are certainly within a layperson's comprehension." We disagree. The question is not whether the mechanics of the movements the claimant performed while driving, or the propensity of such movements to cause injury, were within the common knowledge of the layman. Rather, the question is whether the injury sustained by the claimant was the result of (or was accelerated by) his work activities and were not merely the natural progression of his preexisting conditions. That is a medical question that is not within the common knowledge of a layman. Accordingly, the Commission's finding of a work-related accident is contrary to the manifest weight of the evidence. Johnson, 89 Ill.2d 438. Nunn, 157 Ill.App.3d at 477-78.
¶ 46 The claimant argues that the circumstantial evidence presented in this case established causation because the claimant's symptoms appeared only after he performed particularly strenuous activities at work. We disagree. In cases involving a traumatic injury occurring at a particular time, and also in some repetitive trauma cases, "[a] causal connection between work duties and a condition may be established by a chain of events including petitioner's ability to perform the duties before the date of the accident, and inability to perform the same duties following that date." Darling v. Industrial Comm'n, 176 Ill.App.3d 186, 193 (1988). However, the claimant cites no repetitive trauma case finding causation based on a "chain of events" analysis where, as here, there is evidence of a preexisting degenerative condition. Nor have we found any such cases. Each of the cases upon which the claimant relies involve either a traumatic injury occurring at a particular time or the presentation of expert medical testimony to establish causal connection.
¶ 47 CONCLUSION
¶ 48 For the foregoing reasons, we reverse the judgment of the circuit court of Champaign County which affirmed the Commission's decision, and reverse the Commission's decision granting the claimant's claim for benefits under the Act.
¶ 49 Reversed.