Durand v. Industrial Commission ( 2006 )

Docket No. 101109.
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
DEANA DURAND, Appellant, v. THE INDUSTRIAL
COMMISSION et al. (RLI Insurance Company, Appellee).
Opinion filed October 19, 2006.
JUSTICE FITZGERALD delivered the judgment of the
court, with opinion.
Chief Justice Thomas and Justices Freeman and Kilbride
concurred in the judgment and opinion.
Justice Garman dissented, with opinion, joined by Justice
Karmeier.
Justice Burke took no part in the decision.
OPINION
Deana Durand filed a claim for benefits under the Workers=
Compensation Act (see 820 ILCS 305/1 et seq. (West 2004))
after she developed carpal tunnel syndrome. The Illinois
Industrial Commission 1 found that Durand=s injury manifested
itself more than three years before she filed her claim, and thus
her claim was time barred. See 820 ILCS 305/6(d) (West
2004). The trial court confirmed the Commission=s decision,
and the appellate court affirmed the trial court=s decision. The
central issue in this case is whether the Commission=s decision
was against the manifest weight of the evidence. For the
reasons that follow, we reverse and remand.
BACKGROUND
In 1990, Durand was hired as a clerical worker at RLI
Insurance Company (RLI), and in 1993, she became a policy
administrator. As a policy administrator, Durand scanned
insurance policies into a computer and typed on a computer
keyboard for several hours each day. On January 29, 1998,
Durand informed her supervisor that she noticed pain in her
hands several months earlier, in September or October of
1997, and that she believed the pain was work-related. Durand
continued working, and the pain in her hands increased. She
eventually sought medical help.
Dr. Lestel Escorcia examined Durand on August 15, 2000.
In her notes, Dr. Escorcia stated that Durand reported hand
and wrist pain radiating up to her elbows and constant tingling
and numbness in her fingers and hands. These symptoms had
continued Aon and off@ for 12 years. Durand told Dr. Escorcia
that she had worked at a computer keyboard for seven to eight
years, and Dr. Escorcia concluded that Durand=s hand and
wrist pain were Aprobably carpal tunnel.@ She referred Durand
to Dr. Gregory Blume for a nerve study to confirm this
preliminary diagnosis.
1
Effective January 1, 2005, the name of the Industrial Commission was
changed to the AIllinois Workers= Compensation Commission.@ See 820
ILCS 305/1(c) (West 2004). When it decided this case, it was still known as
the Industrial Commission. We will use that name.
Dr. Blume examined Durand on September 8, 2000. In his
notes, Dr. Blume stated that Durand complained of Abilateral
wrist and right elbow pain,@ as well as Asome numbness and
tingling.@ These symptoms had progressed for two years,
deteriorating when she worked and improving when she did
not. Dr. Blume performed a nerve study, or EMG test, which
revealed Avery mild or early right median nerve entrapment at
the wrist (carpal tunnel syndrome).@ He concluded that Duran=s
condition was, Aby history, *** very work-related.@
Dr. Jay Pomerance examined Durand on November 6,
2000, at the request of RLI=s insurer. In a November 8, 2000,
letter, Dr. Pomerance stated that Durand mentioned Agradual
onset,@ in mid-2000, of pain radiating from her right wrist, then
numbness in her right fingers and thumb, and later numbness
in her left fingers. According to Dr. Pomerance, Durand Adid
have prior symptoms approximately eighteen months ago but
these were not that bothersome to her.@ Dr. Pomerance
reviewed the September 8, 2000, nerve study results and
agreed with Dr. Blume=s diagnosis: AThe patient=s current
clinical condition is consistent with a borderline right carpal
tunnel syndrome along with pain in the left hand.@ Based on
Durand=s description of her job, however, he suggested no
activity restrictions. In a November 20, 2000, letter, written after
viewing a videotape of Durand at work, Dr. Pomerance stated,
AI would not expect this job to cause or aggravate upper
extremity pathology such as carpal tunnel syndrome.@ There
was no causal relationship, according to Dr. Pomerance,
between Durand=s work activities and her carpal tunnel
syndrome. Dr. Pomerance=s deposition testimony was
consistent with his notes.
Dr. Conner, an orthopedic surgeon, first examined Durand
on November 29, 2000. In his notes, Dr. Conner stated that
Durand had worked at RLI for more than nine years,
performing Acontinuous computer entry work during her eight-
hour shift.@ According to Dr. Conner, she Adeveloped problems
with both arms six or seven months ago.@ Dr. Conner noted
that Dr. Blume had performed a nerve study and diagnosed
Durand with Amild early right median nerve entrapment or
carpal tunnel syndrome.@ Dr. Conner=s impression was
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A[b]ilateral carpal tunnel syndrome,@ which from her history
apparently developed Asecondary to her work activity.@ Dr.
Conner again examined Durand on December 20, 2000. In his
notes, Dr. Conner stated that Durand had met with Dr.
Pomerance:
AFrom her description to me she tells me that 90% of
her work was using the computer. In [Dr. Pomerance=s]
letter this part of it was down played considerably, but
on discussing it with her she tells me that the majority of
her work is computer activity. Thus as I thought
previously in my opinion her carpal tunnel [syndrome] is
caused or aggravated by her work.@
The following week, Durand scheduled surgery with Dr.
Conner.
On January 12, 2001, Durand filed an application for
benefits with the Industrial Commission, asserting that she had
experienced Aserious and permanent@ injury to Aboth wrists and
upper extremities@ from Arepetitive data entry@ for RLI. Durand=s
application listed September 8, 2000, the date Dr. Blume
performed the nerve study and conclusively diagnosed her
carpal tunnel syndrome, as the date of the accident. Dr.
Conner performed surgery to repair Durand=s right median
nerve on February 12, 2001 and her left median nerve on June
4, 2001.
Dr. Robert Martin examined Durand on August 7, 2001, at
the request of her attorney. In an October 29, 2001, evidence
deposition, Dr. Martin testified that Durand told him she had
worked at a computer keyboard for 62 hours each day for the
past eight years. Two years earlier, she developed pain in both
wrists, as well as numbness in her fingers. According to Dr.
Martin, carpal tunnel syndrome generally manifests itself as
Aeither numbness, tingling or pain and combinations thereof,@
and these symptoms continue if the employee experiencing
them continues to perform the same work. Dr. Martin testified
that if Durand had experienced such symptoms in 1997, they
Acertainly could have been@ a manifestation of carpel tunnel
syndrome. Dr. Martin opined that Durand=s work activities
contributed to her development of carpel tunnel syndrome.
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On May 9, 2002, an arbitration hearing was held. Durand
testified that she never had hand or wrist problems before she
worked for RLI. On cross-examination, RLI=s attorney asked
Durand about her January 29, 1998, conversation with
coworker Karen Andell:
AQ. *** [D]o you recall telling [Andell] *** that your
symptoms in your hands, right and left, started in
September or October of 1997?
A. I could have.
Q. Do you recall having a problem at that time?
A. I guess I could have, but I didn=t know at the time
what it was.
Q. Do you recall telling Ms. Andell that you told your
supervisor at that time that you believed the condition
was work-related?
A. This was back in =98?
Q. Yes, January 29th, 1998, that you recall reporting
the incidentB
A. Oh, yes.
Q. So, in your mind you believe that your condition
back in September or October of =97 was work-related?
A. Yes.
Q. And your job duties remained the same
thereafter; is that correct?
A. Yes.@
On redirect examination, Durand reiterated that she felt her
pain was work-related in 1997:
AQ. And that opinion that you gave, was that your
opinion, was that an opinion that had been given to you
by your doctor? How did you reach that opinion?
A. It was my opinion, because of the pains I was
having.
Q. That was your expert opinion?
A. Yes.@
On re-cross-examination, Durand again discussed her
symptoms in 1997. Durand repeated that she told her
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supervisor that she was convinced her condition was work-
related.
Again, on redirect examination, Durand stated that, at that
time, no doctor had diagnosed carpal tunnel syndrome. On re-
cross-examination, RLI=s attorney asked:
Q. Did you think you had carpel tunnel then from
what you knew?
A. I wasn=t sure because it wasn=t real constant and
real severe at the time.
Q. You had heard of carpel tunnel syndrome,
though; is that correct?
A. I think I might have heard of it.
Q. And you knew people who had it or had had it?
A. Yes.
Q. And it was your belief that you had that condition
and you felt that it was due to your job duties; is that
correct?
A. Yes.@
In a June 4, 2002, decision, the arbitrator found that Durand
sustained a repetitive-trauma accident caused by her work.
Further, according to the arbitrator, AWhile [Durand] had
experienced symptoms of carpal tunnel syndrome well before
***, the first time that she had received an EMG, and been
officially diagnosed with carpal tunnel syndrome was
September 8, 2000.@ The arbitrator decided that Durand=s
claim fell within the limitations period and awarded her medical
expenses, as well as weekly compensation for temporary total
disability and permanent partial disability in her right and left
hands.
On July 18, 2002, RLI filed a petition for review, and on
September 12, 2003, the Industrial Commission reversed the
arbitrator=s decision. The Commission found that Durand used
a keyboard for approximately six hours per day. The
Commission reviewed her testimony about when her
symptoms appeared. Durand stated four times during the
arbitration hearing that she experienced pain in her hands and
wrists in September or October of 1997 and that she believed
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this pain was work-related. The Commission stated: AUpon
reviewing the events of September 8, 2000, the Commission
finds that with the exception of [Durand] undergoing an EMG
test, there was no specific event that took place on that date.
*** Based on [Durand=s] testimony, the Commission finds that
the September/October date is the date of
accident/>manifestation date= and said date was the date when
the fact of the injury and its causal relationship to her
employment was plainly apparent to [Durand] and to a
reasonable person alike.@ Consequently, she filed her claim
outside the three-year limitations period.
One commissioner wrote a concurring opinion, and one
commissioner wrote a dissenting opinion. The concurring
commissioner noted:
AThe fact that on September 8, 2000, a medical
diagnosis was attached to [Durand=s] condition does not
indicate that [her] condition or its cause were, for
>manifestation= reasons, then newly apparent or
reasonably should have been. Insofar as the records ***
or her testimony *** are concerned, we only can
determine that Dr. Blume believed there was a work
related cause. There is no evidence that on September
8, 2000, this was conveyed to [Durand]. The statement
to Karen Andell indicates [Durand], as early as 1997,
was fully aware of her hand condition, knew about
carpal tunnel syndrome, knew people who had it, felt
she had it and that it was due to her job duties ***. A
reasonable person with such knowledge and experience
would then have known both of her condition and its
relationship to her work.@
The dissenting commissioner observed that Durand
Acontinued to perform essentially the same job activities for
several years preceding the onset of her symptoms in late
1997 to the time she finally sought medical treatment in August
2000.@ According to the dissenting commissioner, there is no
authority for the proposition that the earliest onset of symptoms
is the manifestation date. In fact, such a rule is contrary to the
axiom that the Workers= Compensation Act should be liberally
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construed to accomplish its purposes. The dissenting
commissioner concluded:
AAt best, the majority has used the date Petitioner
became aware of a potential disability as the
manifestation date. Their narrow interpretation
penalizes her for giving her employer notice of a
potential disability, for not immediately seeking medical
attention, and for continuing to perform her regular work
for the same employer, notwithstanding a suspicion that
she might be developing work related carpal tunnel
syndrome. I fail to see what legitimate policies are
served by their interpretation.@ (Emphasis in original.)
Durand filed a judicial review complaint, and the trial court
confirmed the Commission=s decision. The appellate court
affirmed the trial court=s decision. 358 Ill. App. 3d 239. Illinois
law, asserted the appellate court, Adoes not require that a
claimant=s injury must have been diagnosed by a physician or
that a physician have opined that the injury is causally related
to her employment. [Citation.] Rather, manifestation of a
repetitive trauma injury occurs when the fact of injury and
causation would have become plainly apparent to a reasonable
person.@ 358 Ill. App. 3d at 244. Here, Durand testified that in
1997 she felt pain in her wrists and believed this pain was
work-related, even though she Awasn=t sure@ that she had
carpal tunnel syndrome. 358 Ill. App. 3d at 245. The appellate
court found Asufficient evidence@ to support the Commission=s
finding that Durand=s injury manifested itself in 1997; her claim
was filed more than three years later and was thus time-barred.
358 Ill. App. 3d at 245.
Justice Holdridge, joined by Justice Donovan, dissented.
358 Ill. App. 3d at 245 (Holdridge, J., dissenting, joined by
Donovan, J.). Justice Holdridge noted that Durand filed her
claim on January 12, 2001; he thus looked back three years to
January 12, 1998. 358 Ill. App. 3d at 246 (Holdridge, J.,
dissenting, joined by Donovan, J.). Although Durand informed
her supervisor of her general pain in 1997, it was Aon and off,@
and not Areal constant and real severe.@ 358 Ill. App. 3d at 246
(Holdridge, J., dissenting, joined by Donovan, J.). According to
Justice Holdridge, Durand=s Aintermittent discomfort@ left her
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unsure she even had carpal tunnel syndrome, and her Amere
belief that she had the condition@ was insufficient to make it
plainly apparent to a reasonable person. 358 Ill. App. 3d at 246
(Holdridge, J., dissenting, joined by Donovan, J.). Justice
Holdridge asserted that the date of the accident or
manifestation date was not before January 12, 1998, and
Durand=s claim was timely. 358 Ill. App. 3d at 246 (Holdridge,
J., dissenting, joined by Donovan, J.).
We granted Durand=s petition for leave to appeal. 177 Ill. 2d
R. 315(a).
ANALYSIS
Durand raises two issues: (1) whether the Industrial
Commission=s decision setting the date of the accident on an
unspecified date in either September or October 1997 was
against the manifest weight of the evidence; and (2) whether
this decision was contrary to Illinois law.
The Industrial Commission is the ultimate decisionmaker in
workers= compensation cases, and it is not bound by any
decision made by the arbitrator. Cushing v. Industrial Comm=n,
50 Ill. 2d 179, 181-82 (1971). Instead, the Commission must
weigh the evidence presented at the arbitration hearing and
determine where the preponderance of that evidence lies. See
Steiner v. Industrial Comm=n, 101 Ill. 2d 257, 260 (1984);
Wagner Castings Co. v. Industrial Comm=n, 241 Ill. App. 3d
584, 594 (1993) (Ait is solely within the province of the
Commission@ to weigh the evidence (emphasis in original)). A
reviewing court will not reverse the Commission unless its
decision is contrary to law (see Butler Manufacturing Co. v.
Industrial Comm=n, 85 Ill. 2d 213, 216 (1981)) or its fact
determinations are against the manifest weight of the evidence
(see Shockley v. Industrial Comm=n, 75 Ill. 2d 189, 193 (1979)).
A reviewing court will not reweigh the evidence, or reject
reasonable inferences drawn from it by the Commission,
simply because other reasonable inferences could have been
drawn. See International Harvester v. Industrial Comm=n, 93 Ill.
2d 59, 65 (1982); Benson v. Industrial Comm=n, 91 Ill. 2d 445,
450 (1982). Fact determinations are against the manifest
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weight of the evidence only when an opposite conclusion is
clearly apparentBthat is, when no rational trier of fact could
have agreed with the agency. See D.J. Masonry Co. v.
Industrial Comm=n, 295 Ill. App. 3d 924, 930 (1998).
Section 6(d) of the Workers= Compensation Act provides
that an injured employee must file a workers= compensation
claim Awithin 3 years after the date of the accident.@ 820 ILCS
305/6(d) (West 2004). When the accident is a discrete event,
the date of the accident is easy to determine: it is, obviously,
the date that the employee was injured. When the accident is
not a discrete event, this date is harder to specify. An
employee who suffers a repetitive-trauma injury still may apply
for benefits under the Act, but must meet the same standard of
proof as an employee who suffers a sudden injury. See AC&S
v. Industrial Comm=n, 304 Ill. App. 3d 875, 879 (1999); Nunn v.
Industrial Comm=n, 157 Ill. App. 3d 470, 480 (1987). That
means, inter alia, an employee suffering from a repetitive-
trauma injury must still point to a date within the limitations
period on which both the injury and its causal link to the
employee=s work became plainly apparent to a reasonable
person. Williams v. Industrial Comm=n, 244 Ill. App. 3d 204,
209 (1993). Setting this so-called manifestation date is a fact
determination for the Commission. Palos Electric Co. v.
Industrial Comm=n, 314 Ill. App. 3d 920, 930 (2000).
Here, Durand argues that the Commission=s finding that her
injury occurred sometime in September or October 1997 was
against the manifest weight of the evidence. She contends that
September 8, 2000, the date she was conclusively diagnosed
with carpel tunnel syndrome, was the date of the accident;
consequently, her January 12, 2001 claim was timely. Durand
also argues that the Commission=s finding was unfair,
unrealistic, and contrary to law. According to Durand, Illinois
cases have looked at the date when the employee requires
medical treatment or becomes unable to work in determining
when an injury manifested itself. Durand asserts that an injury
in a carpal tunnel syndrome workers= compensation case
cannot be established before the employee seeks medical
consultation to confirm such a condition. RLI responds that the
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Commission=s findings were consistent with Illinois law and
were not against the manifest weight of the evidence.
Initially, we reject Durand=s argument that the decisions
below were contrary to Illinois law. The appellate court, the trial
court, and the Industrial Commission all employed the correct
standard in determining when her injury manifested itself. That
standard comes from Peoria County Belwood Nursing Home v.
Industrial Comm=n, 115 Ill. 2d 524 (1987). In Peoria County, an
employee in a nursing home laundry room experienced pain,
numbness, and tingling in her hands and fingers on October 4,
1976, and consulted a neurologist regarding these symptoms
the next day. The employee continued to work for nearly a
year, then underwent outpatient carpal tunnel surgery on
August 23, 1977. She filed a workers= compensation claim the
next day, alleging that she developed carpal tunnel syndrome
as a result of her work. The arbitrator awarded temporary and
permanent total disability benefits. The Industrial Commission
affirmed that decision; the trial court, in turn, confirmed the
Commission=s decision. The appellate court affirmed the trial
court=s decision.
This court framed the issue as Awhether an injury sustained
as a result of work-related repetitive trauma is compensable
under the Workers= Compensation Act without a finding that the
injury occurred as a result of one specific incident traceable to
a definite time, place and cause.@ Peoria County Nursing
Home, 115 Ill. 2d at 527. We stated that the purpose behind
the Workers= Compensation Act is best served by allowing
compensation where an injury is gradual but linked to the
employee=s work. Peoria County, 115 Ill. 2d at 529. We
continued:
ARequiring complete collapse in a case like the
instant one would not be beneficial to the employee or
the employer because it might force employees needing
the protection of the Act to push their bodies to a
precise moment of collapse. Simply because an
employee=s work-related injury is gradual, rather than
sudden and completely disabling, should not preclude
protection and benefits. *** To deny an employee
benefits for a work-related injury that is not the result of
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a sudden mishap *** penalizes an employee who
faithfully performs job duties despite bodily discomfort
and damage.@ Peoria County, 115 Ill. 2d at 529-30.
We then discussed the limitations period. The employer
argued that the employee=s claim was time-barred because the
injury was not traceable to a specific date. Peoria County, 115
Ill. 2d at 530. We agreed with the appellate court that the date
of the injury in a repetitive-trauma compensation case is the
date when the injury manifests itselfBAthe date on which both
the fact of the injury and the causal relationship of the injury to
the claimant=s employment would have become plainly
apparent to a reasonable person.@ Peoria County, 115 Ill. 2d at
531, citing 1B A. Larson, Workmen=s Compensation '39.50
(1985). The employee experienced pain, numbness, and
tingling in her hands and fingers on October 4, 1976; these
symptoms were severe enough that she sought medical
treatment the next day. Peoria County, 115 Ill. 2d at 531. Thus,
October 4 was the last day that the employee worked before
the fact of her injury and its causal connection to her work
became apparent. Peoria County, 115 Ill. 2d at 531. We
concluded that because she filed her claim less than three
years later, her claim was timely. Peoria County, 115 Ill. 2d at
531.
The appellate court has applied Peoria County in several
carpal tunnel syndrome cases, and some of these cases
provide useful insight regarding how to determine the
manifestation date. In Oscar Mayer & Co. v. Industrial Comm=n,
176 Ill. App. 3d 607 (1988), an employee cut meat at a
slaughterhouse for 15 years. In 1981, he experienced
numbness, tingling, and burning in his hands and elbows. The
employer=s doctor examined the employee and performed an
EMG test. The doctor told the employee that he suffered from
bilateral carpal tunnel syndrome, and the employee refused
surgery, opting for more conservative treatment. A year later,
the employee=s doctor performed a second EMG test, which
indicated that the employee=s condition was deteriorating.
Another year later, the doctor performed a third EMG test,
which confirmed that the employee=s condition was still
deteriorating. The employee had surgery on May 12, 1983. On
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April 5, 1984, the employee filed a workers= compensation
claim, listing his date of injury as the date he had surgery. The
arbitrator awarded benefits to the employee, but the trial court
reversed, concluding that the employee failed to prove that the
date he had surgery was the date of accident.
The appellate court reversed the trial court. Oscar Mayer,
176 Ill. App. 3d at 608. According to the appellate court, the
employee acknowledged that he knew of his injury and its
relationship to his work before he had surgery. Oscar Mayer,
176 Ill. App. 3d at 608. The appellate court, however, refused
to read Peoria County narrowly:
ABy their very nature, repetitive-trauma injuries may
take years to develop to a point of severity precluding
the employee from performing in the workplace. An
employee who discovers the onset of symptoms and
their relationship to the employment, but continues to
work faithfully for a number of years without significant
medical complications or lost working time, may well be
prejudiced if the actual breakdown of the physical
structure occurs beyond the period of limitation set by
statute. [Citation.] Similarly, an employee is also clearly
prejudiced in the giving of notice to the employer
[citation] if he is required to inform the employer within
45 days of a definite diagnosis of the repetitive-
traumatic condition and its connection to his job since it
cannot be presumed the initial condition will necessarily
degenerate to a point at which it impairs the employee=s
ability to perform the duties to which he is assigned.
Requiring notice of only a potential disability is a useless
act since it is not until the employee actually becomes
disabled that the employer is adversely affected in the
absence of notice of the accident.@ (Emphasis in
original.) Oscar Mayer, 176 Ill. App. 3d at 611.
The appellate court stated that Afact of the injury@ is not
synonymous with Afact of discovery.@ Oscar Mayer, 176 Ill. App.
3d at 611, citing Peoria County, 115 Ill. 2d at 531. That is, the
date on which the employee notices a repetitive-trauma injury
is not necessarily the manifestation date. Instead, the date on
which the employee became unable to work, due to physical
collapse or medical treatment, helps determine the
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manifestation date. Oscar Mayer, 176 Ill. App. 3d at 611. The
appellate court noted that the standard remains flexible: AJust
as we reject [the employer=s] contention the date of discovery
of the condition and its relation to the employment necessarily
fixes the date of accident, we reject any interpretation of this
opinion which would permit the employee to always establish
the date of accident in a repetitive-trauma case by reference to
the last date of work.@ Oscar Mayer, 176 Ill. App. 3d at 612.
Where the employer concedes that the injury was work-related
and that the employee continued to work until the day before
surgery, the Commission could reasonably conclude that that
day was the date of accident. Oscar Mayer, 176 Ill. App. 3d at
611; but see Casteneda v. Industrial Comm=n, 231 Ill. App. 3d
734, 738 (1992) (holding that an employee=s Alast day of
exposure to repetitive trauma is not, in and of itself, the day of
accident for the purposes of repetitive injury cases@).
In Three AD@ Discount Store v. Industrial Comm=n, 198 Ill.
App. 3d 43 (1989), an employee buffed floors for a discount
store. After five months, the employee noticed swelling in his
hands and shooting pains in his right arm. He visited his
doctor, who prescribed pain medication. At that time, he was
also being treated by an endocrinologist for a diabetic
condition. The employee experienced more severe pain, then
numbness and tingling in his fingers and hands. The
endocrinologist referred him to a neurologist. On June 27,
1984, the neurologist performed an EMG test and sent a report
that the employee had carpal tunnel syndrome to the
endocrinologist. The endocrinologist discussed the
neurologist=s report with the employee and referred him to an
orthopedic surgeon. The orthopedic surgeon examined the
employee on July 10, 1984, and scheduled surgery for August
1984. The employee then informed his supervisor that he had
carpal tunnel syndrome and that it was work-related, and he
continued to work until August 10, 1984. He later filed a
workers= compensation claim.
The arbitrator rejected this claim, finding that the employee
failed to offer any evidence about when his injury occurred.
The arbitrator concluded that if there was a work-related injury,
it occurred when the employee first noticed swelling and pain,
not when he left work in August 1984. The Commission
reversed the arbitrator=s findings. The Commission decided
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that the employee=s injury was work-related and that it
manifested itself when he left work. The Commission awarded
benefits to the employee, and the trial court confirmed this
decision.
The appellate court initially reversed the trial court=s
decision, but on rehearing affirmed. Three AD@ Discount Store,
198 Ill. App. 3d at 47. The appellate court stated that the
evidence established that the endrocrinologist discussed the
neurologist=s report with the employee, but did not establish
that the endocrinologist ever told the employee that his
condition was work-related. Three AD@ Discount Store, 198 Ill.
App. 3d at 47-48. The employee learned that his injury was
work-related sometime in the month before he informed his
supervisor and left work. Three AD@ Discount Store, 198 Ill.
App. 3d at 48. The appellate court concluded that a reasonable
person would have been on notice that this condition was
work-related and medically disabling on July 10, 1984. Three
AD@ Discount Store, 198 Ill. App. 3d at 48. After reviewing
Oscar Mayer, the appellate court stated:
AAn employee who continues to work on a regular basis
despite his own progressive ill-being should not be
punished merely for trying to perform his duties without
complaint. On the other hand, it is not this State=s policy
to encourage disabled workers to silently push
themselves to the point of medical collapse before
giving the employer notice of an injury.@ Three AD@
Discount Store, 198 Ill. App. 3d at 49.
The facts must be closely examined in repetitive-injury cases to
ensure a fair result for both the faithful employee and the
employer=s insurance carrier. Three AD@ Discount Store, 198 Ill.
App. 3d at 49.
RLI argues, and we agree, that fairness and flexibility are
the common themes in these cases. Indeed, the rule in Peoria
County is broad enough to accommodate unique scenarios
presented in different cases, and the Commission should
weigh many factors in deciding when a repetitive-trauma injury
manifests itself. But despite RLI=s repeated invocations of
flexibility, it asks us to limit the inquiry in this case to only one
fact: the unspecified date in September or October 1997 on
which Durand first noticed her hand and wrist pain, opined it
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could be carpal tunnel syndrome, and guessed it may bear
some relation to her work, but declined to mention it to her
supervisor for at least three months.
As the appellate court correctly noted in Oscar Mayer, ATo
always require an employee suffering from a repetitive-trauma
injury to fix, as the date of accident, the date the employee
became aware of the physical condition, presumably through
medical consultation, and its clear relationship to the
employment is unrealistic and unwarranted.@ Oscar Mayer, 176
Ill. App. 3d at 610. The inquiry is not so narrow. Professor
Larson=s workers= compensation treatise provides a summary
of the case law:
AThe practical problem of fixing a specific date for
the accident has generally been handled by saying
simply that the date of accident is the date on which
disability manifests itself. Thus, in [Ptak v. General
Electric Co., 13 N.J. Super. 294, 80 A.2d 337 (1951)],
the date of a gradually acquired [back] strain was
deemed to be the first moment the pain made it
impossible to continue work, and in [Di Maria v. Curtiss-
Wright Corp., 23 N.J. Misc. 374, 44 A.2d 688 (1945)],
the date of accident for gradual loss of use of the hands
was held to be the date on which this development
finally prevented claimant from performing his work.
However, for certain purposes the date of accident may
be identified with the onset of pain occasioning medical
attention, although the effect of the pain may have been
merely to cause difficulty in working and not complete
inability to work.@ 3 L. Larson, Larson=s Workers=
Compensation Law '50.05, at 50B11-50B12 (2005).
In short, courts considering various factors have typically
set the manifestation date on either the date on which the
employee requires medical treatment or the date on which the
employee can no longer perform work activities. See Peoria
County Belwood Nursing Home v. Industrial Comm=n, 138 Ill.
App. 3d 880, 887 (1985), aff=d, 115 Ill. 2d 524 (1987) (holding
that determining the manifestation date is a question of fact
and that Athe onset of pain and the inability to perform one=s
job, are among the facts which may be introduced to establish
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the date of injury@). A formal diagnosis, of course, is not
required. The manifestation date is not the date on which the
injury and its causal link to work became plainly apparent to a
reasonable physician, but the date on which it became plainly
apparent to a reasonable employee. See General Electric Co.
v. Industrial Comm=n, 190 Ill. App. 3d 847, 857 (1989).
However, because repetitive-trauma injuries are progressive,
the employee=s medical treatment, as well as the severity of
the injury and particularly how it affects the employee=s
performance, are relevant in determining objectively when a
reasonable person would have plainly recognized the injury
and its relation to work. See Oscar Mayer, 176 Ill. App. 3d at
610.
Against this legal background, the question before us is
simply whether the date chosen by the Commission was
against the manifest weight of the evidence adduced at the
arbitration hearing. We believe it was.
According to RLI, Durand admitted that she knew about
carpal tunnel syndrome and even suspected she had it in
September or October 1997. RLI contends that Durand
presented no evidence to show that she changed her mind
about her injury or its relation to her work, and concludes that
the manifestation date was in 1997. RLI essentially asks us to
rely on Aexpert@ medical testimony from a layperson, Durand,
and ignore her testimony about her intermittent pain and how it
affected her performance.
At the arbitration hearing, Durand testified that she told her
supervisor about her hand and wrist pain in September or
October of 1997, but she Adidn=t know at the time what it was,@
even though she believed it was work-related. Durand reached
that Aexpert opinion@ based solely on the pain she was having,
not on any doctor=s advice. Durand later reiterated that she
Awasn=t sure@ her pain was carpal tunnel syndrome Abecause it
wasn=t real constant and real severe@ in 1997. She then
testified that she Amight have heard of@ carpal tunnel syndrome
and knew people who had had it, and so surmised that she too
had developed work-related carpal tunnel syndrome. Durand
was never reassigned to other work, and she never sought
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medical treatment for her hand and wrist pain until August 15,
2000, when she visited Dr. Escorcia.
Dr. Escorcia noted that Durand reported her pain began 18
months earlier, or a year after she spoke to her supervisor, but
the pain was Aon and off.@ Dr. Blume noted that Durand
reported her pain began two years before he examined her on
September 8, 2000, and progressed when she worked. Dr.
Pomerance noted that Durand reported Agradual onset@ of
hand and wrist pain in mid-2000; she had symptoms
approximately 18 months earlier, Abut these were not that
bothersome to her.@ Similarly, Dr. Conner noted that Durand
reported problems in her arms in mid-2000. Dr. Martin stated
Durand=s carpal tunnel syndrome could have manifested itself
with her hand and wrist pain in 1997, but gave no indication
whether he reached that conclusion using the Peoria County
standard.
If Durand would have filed a claim in 1997, she certainly
would have had difficulty proving her injury. Her description
and understanding of the hand and wrist pain was sketchy and
equivocal. At that time, it was not so constant or severe that it
warranted medical treatment or reassignment to different work.
As Justice Holdridge suggested in his dissent, Athe
circumstances signal periodic discomfort leading to doubt
about the existence of a distinct injury.@ 358 Ill. App. 3d at 246
(Holdridge, J., dissenting, joined by Donovan, J.). The record
strongly suggests that this doubt lingered until 2000, when
Durand=s pain finally necessitated medical treatment. A
reasonable person would not have known of this injury and its
putative relationship to computer keyboard work before that
time, and it was against the manifest weight of the evidence to
conclude otherwise. Durand=s claim was timely. We decline to
penalize an employee who diligently worked through
progressive pain until it affected her ability to work and required
medical treatment.
However, we must remand this cause to the Industrial
Commission. RLI, relying on testimony from Dr. Pomerance,
disputed whether Durand=s work activities caused her injuries.
The Commission decided this case solely on the limitations
period issue, and did not weigh the evidence on causation. We
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decline to usurp this function of the Commission, based upon
the paper record before us.
CONCLUSION
For the reasons that we have stated, we reverse the
judgments of the appellate and circuit courts, set aside the
decision of the Industrial Commission, and remand this matter
to the Commission for further proceedings.
Appellate court judgment reversed;
circuit court judgment reversed;
Commission decision set aside;
cause remanded.
JUSTICE BURKE took no part in the consideration or
decision of this case.
JUSTICE GARMAN, dissenting:
Claimant=s testimony before the arbitrator more than
adequately supports the Commission=s conclusion that
claimant=s carpal tunnel syndrome and its relationship to her
employment would have been Aplainly apparent to a
reasonable person@ (Peoria County Belwood Nursing Home v.
Industrial Comm=n, 115 Ill. 2d 524, 531 (1987)) in September or
October of 1997. In reversing the Industrial Commission=s
decision that the claim at issue was barred by the Workers=
Compensation Act=s three-year statute of limitations (820 ILCS
305/6(d) (West 2004)), the majority misapplies the deferential
manifest weight of the evidence standard of review and
obliquely modifies the test set forth in Peoria County for
determining the manifestation date of a claimant=s injury.
Consequently, I dissent.
The evidence presented to the Commission regarding the
date claimant=s injury manifested itself included her testimony
before the arbitrator (slip op. at 4-5) and the medical notes and
deposition testimony of the five physicians who examined her
(slip op. at 2-4). Claimant=s testimony contains four admissions
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that she was aware of her injury and its relationship to her
employment in September or October of 1997, at which time
she reported her hand and wrist problems to her supervisor.
The medical evidence reveals various conflicting estimates by
claimant of the time period when she first noticed the onset of
her hand and wrist pain.
The majority acknowledges that the Commission=s
determination of the date claimant=s injury manifested itself
must be given deference on review (slip op. at 8-9) and states
that the Commission applied the correct legal standard in
making that determination (slip op. at 10). Accordingly, the
Commission=s determination that claimant=s injury manifested
itself more than three years before the date she filed her
application for benefits should be upheld.
As the majority notes, a reviewing court will not reverse a
factual determination of the Commission unless it is against the
manifest weight of the evidence. Shockley v. Industrial
Comm=n, 75 Ill. 2d 189, 193 (1979). To that end, a reviewing
court must not reweigh the evidence, or reject reasonable
inferences drawn from it by the Commission, simply because
other reasonable inferences could have been drawn.
International Harvester v. Industrial Comm=n, 93 Ill. 2d 59, 65
(1982). Setting the date of a claimant=s injury is a factual
determination for the Commission (Palos Electric Co. v.
Industrial Comm=n, 314 Ill. App. 3d 920, 930 (2000)), and that
determination is governed by the standard this court set forth in
Peoria County: the date of injury in a case involving repetitive
trauma is the date when the injury Amanifests itself,@ meaning
Athe date on which both the fact of the injury and the causal
relationship of the injury to the claimant=s employment would
have become plainly apparent to a reasonable person@ (Peoria
County, 115 Ill. 2d at 531).
In this case, it was reasonable for the Commission to
conclude, based on the evidence described above, that the fact
of claimant=s injury and its relationship to her employment
would have been plainly apparent to a reasonable person in
September or October of 1997. To begin with, the evidence
was sufficient for the Commission to reasonably conclude that
the fact of claimant=s injury and its relationship to her
employment were actually apparent to her in September or
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October of 1997. Claimant admitted no less than four times in
her testimony before the arbitrator that she was aware of her
injury and its relationship to her employment at that time. In
evaluating the evidence before it, it was unquestionably within
the province of the Commission to give weight to that
uncontradicted testimony and discount the conflicting accounts
of the onset of claimant=s pain that she gave to her physicians.
To the extent the majority questions the reasonableness of
claimant=s actual belief in September or October of 1997 that
she was injured and the injury was related to her employment, I
would again emphasize this court=s limited role as a reviewing
tribunal in this case. See International Harvester, 93 Ill. 2d at
65. Claimant testified that she experienced no hand or wrist
problems before working at RLI Insurance Company, that she
had no hobbies involving the intensive use of her hands, that
she did not use a computer outside of work, and that she was
generally aware of the nature of carpal tunnel syndrome at the
time she reported her hand and wrist problems to her
supervisor. Based on this testimony, the Commission could
reasonably have inferred that claimant=s belief in September or
October of 1997 that her hands and wrists were injured and the
injury was related to her employment was a reasonable one.
Indeed, even Dr. Robert Martin, the physician who examined
claimant at the request of her attorney, testified at his
evidentiary deposition that if she experienced symptoms such
as Anumbness, tingling or pain and combinations thereof@ in
1997, those symptoms Acertainly could have been@ a
manifestation of carpal tunnel syndrome.
The majority attempts in part to justify its reevaluation of the
evidence by relying on General Electric Co. v. Industrial
Comm=n, 190 Ill. App. 3d 847, 857 (1989), for the proposition
that A[t]he manifestation date is not the date on which the injury
and its causal link to work became plainly apparent to a
reasonable physician, but the date on which it became plainly
apparent to a reasonable employee.@ Slip op. at 15; see also
slip op. at 16 (ARLI essentially asks us to rely on >expert=
medical testimony from a layperson, Durand, and ignore her
testimony about her intermittent pain and how it affected her
performance. *** Durand reached that >expert opinion= based
solely on the pain she was having, not on any doctor=s
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advice@). Notably, in General Electric, the appellate court
determined that the evidence supported the conclusion that the
claimant=s injury and its connection to her employment would
have been plainly apparent to a reasonable person on the date
the claimant noticed a Asharp pain@ in her shoulder while
working, not on the subsequent date when a physician opined
that the claimant=s condition and her work were causally
related. General Electric, 190 Ill. App. 3d at 857. More
importantly, while I agree as a general matter that it would be
unfair to expect employees to diagnose their injuries and
discern the relationship between their injuries and their
employment with the expertise of trained physicians, this
proposition is inapposite here. Based on the evidence
presented to the Commission, I fail to see why it could not
reasonably have concluded that a reasonable person in
claimant=s circumstances would have been aware she was
injured and that the injury was employment related. The only
way to maintain this position is to do as the majority has done:
secondguess the Commission=s interpretation of claimant=s
testimony and suggest it was unreasonable for her to be aware
of her condition until she was formally diagnosed.
The majority cites no authority for the proposition that the
manifestation date of a claimant=s injury must be determined on
the basis of a formal medical evaluation. In fact, the majority
emphasizes that Afairness and flexibility are the common
themes@ of cases that have applied the Peoria County standard
and acknowledges that Athe Commission should weigh many
factors in deciding when a repetitive-trauma injury manifests
itself.@ Slip op. at 14. I have no quarrel with permitting the
Commission to weigh numerous factors in determining when a
repetitive-trauma injury manifests itself. It strikes me as
somewhat ironic, however, that the majority=s resolution of this
case actually appears to narrow the permissible scope of the
Commission=s inquiry in setting a manifestation date. The
majority declares that claimant=s injury did not manifest itself
until sometime in 2000, when claimant=s pain necessitated
medical treatment. Slip op. at 17. Thus, the de facto rule
established by this case seems to be that, regardless of a
claimant=s actual and reasonable awareness of an injury=s
manifestation, corroborative medical treatment is necessary
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before it can be said that a reasonable person would plainly
recognize the injury and its causal relationship to his or her
employment. This rule creates a puzzling inconsistency,
because while the majority claims to maintain a totality of the
circumstances approach to determining a repetitive-trauma
injury=s manifestation date, it seems to have made the medical
diagnosis of such an injury the determinative factor in that
inquiry.
Claimant is to be commended for continuing to work after
the onset of her symptoms. As the majority notes, claimant
Adiligently worked through progressive pain until it affected her
ability to work and required medical treatment.@ Slip op. at 17.
Claimant=s persistence, however, should not excuse her from
her obligation to file a timely application for benefits. I fear the
majority has allowed this equitable consideration to become
the driving force behind its decision to reverse the judgment of
the Commission, and that it has done so at the expense of
obscuring the heretofore straightforward analysis used in
reviewing the Commission=s determination of a manifestation
date. For the reasons set forth above, I would affirm the
judgment of the appellate court, which upheld the circuit court=s
confirmation of the Commission=s decision to deny claimant=s
application for benefits.
JUSTICE KARMEIER joins in this dissent.
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