Keefe, Campbell & Associates, LLC

Editor’s comment: Beginning with the decision in Peoria County Belwood Nursing Home v. Industrial Commission in 1987, Illinois ushered in a new “type” of work injury not previously seen in this state. We are certain Illinois was not the first workers’ compensation system to start the concept of repetitive trauma but this system is now certainly one of the most liberal in the world. The paradigm shift in the law brought on by this concept is previously, Illinois injured workers had to demonstrate a sudden and unforeseen occurrence to have what was legally defined as an “accidental injury” in the legislation. Following Peoria County Belwood Nursing Home, all one had to effectively demonstrate to show entitlement to workers’ comp benefits for repetitive trauma is a job, a need for medical care and the slightest causal relationship between the two.

The problem that followed the new legal concept is ascertaining when the condition would be legally related to work versus when the problem would be personal to the employee and not work-related. As you may see below, the Commission has become somewhat more conservative in some of their recent rulings.

Other related issues that sprung up are the date of onset or the “accident date” to ascertain which of potentially numerous employers and their respective carriers might have to pay workers’ comp benefits for the condition. In Durand v. Industrial Commission, the Illinois Supreme Court effectively stripped out the statute of limitations if the employee testifies they “worked through the pain” until some period after the statute would have tolled. With deference to our highest court, we have difficulty with a ruling that we feel ignores the statutory language.

Another major problem arose is the related concept of “apportionment” which would be determining which employer(s) might bear some or all of the cost of paying for a condition that may arise over weeks, months and possibly years. Some states do not allow repetitive trauma claims until the employee has worked for an employer for at least ninety days. Illinois does not have any waiting period. In Concrete Structures of the Midwest v. Industrial Commission, the employee came onto the worksite and worked for six days until making a CTS claim. The appellate majority ruled there would be no apportionment among employers until the legislature addressed the issue. One can expect the legislature to address this issue when and if the forces of Illinois business ever return to control of the legislature and governor’s mansion. Until then, one and only one employer will get stuck with a repetitive trauma claim unless the insurance adjusters agree to split some or all of the cost in a settlement.

Please note it is our position the repetitive trauma concept was created and formed solely in the courts. We make that statement because we do not feel the overall concept of “repetitive trauma” was contemplated when our Act was written in 1909 to protect workers from “accidental injuries.” We feel the statute was intended by the drafters to only contemplate something happening that was sudden, unforeseen or unexpected to Illinois workers. In contrast, there is nothing about carpal tunnel syndrome, cubital tunnel syndrome, tarsal tunnel syndrome, fallen arches, degenerating rotator cuffs, varicose veins or other previously personal conditions that are unforeseen and unexpected. Most, if not all, of such conditions medically relate closely to one’s personal social and physical makeup.

This also sets up the frustrating scenario of having to pay substantial medical, lost time and permanency benefits when no true “safety” protocol has failed and the employer is ostensible blameless. For example, we had a claimant who worked at a machine on a concrete floor and developed fallen arches. The employer provided her with shoes as part of her work. The treating physician confirmed the foot problem was due, in part, to the workplace and the concrete floors. Our client asked the rhetorical question—is it an “accident” to provide an employee with a workplace that doesn’t have rubber mats or carpeting?

In the twenty-plus years since the Peoria County Belwood Nursing Home decision the concepts of workers’ comp claims arising from events that are sudden and unforeseen have disappeared. Most repetitive trauma conditions can be expected in workers who are in bad condition, reaching advanced age or have a weakened habitus. For those reasons, ever-increasing workers’ compensation benefits in this state present a strong reason to quietly avoid hiring obese or disabled workers along with cigarette smokers—such workers may be dramatically more susceptible to repetitive trauma conditions and claims. The other negative is the problem with having any worker regularly work overhead or use impact tools. In this state, most of such jobs are being automated or robotized.

What does a typical carpal tunnel claim cost in Illinois? For an average worker with average income, the employer is typically looking at $5-15,000 in medical/surgical costs. Our strongest advice is to try as hard as possible to not allow any lost time, even if the employee has surgery. It is possible to schedule surgery on Fridays and have the employee return to one-handed work the following Monday. If you don’t do a good job anticipating and minimizing lost time, you can pay $5-15,000 for lost time.

As for permanency, Illinois continues to provide permanent partial disability in a range of 15-25% of the hand for operated carpal tunnel claims. For a worker with a PPD rate of $500 per week, this can cost as much as 205 weeks times 25% or 51.25 weeks at a rate of $500 equaling $25,625.00. For most employers, this high and seemingly unavoidable cost is one of the reasons Illinois is not a favorite state for workers’ compensation claims.

What is the current Commission doing with CTS rulings? Believe or not, we have seen some changes—the Commission is not nearly as liberal as they have been in prior years. We salute the focus the Commission brings to claims when they require clear medical testimony as to causal connection combined with consistent medical histories.

A. In Minder v. McDonalds, 02 IL.W.C. 15401, 08 I.W.C.C. 0784, June 30, 2008, the Commission reversed the Arbitrator’s decision and denied benefits for a food service manager. The Commission expressly noted the testimony about work duties was sparse, and they were unable to find support from testimony that work was causally related to her conditions.

B. In Wallis v. Harris Corp., 05 IL.W.C. 19583, 08 I.W.C.C. 0763, June 27, 2008, the Commission reversed the Arbitrator’s decision and denied benefit. The Commission decision states:

On July 6, 2004, Petitioner had an EMG/NCS, which revealed no evidence of carpal tunnel syndrome. Petitioner had another EMG on April 4, 2005, which revealed bilateral mild median neuropathies with compression at the carpal tunnels. Petitioner’s diagnostic studies did not show evidence of carpal tunnel syndrome until April 2005, which is almost two years after she stopped working with Respondent and over one year after she stopped working with another employer. We find that Petitioner’s EMG was not positive until long after she stopped working.

C. Finally, in Diepen v. Commonwealth Edison, 02 W.C. 08916, 08 I.W.C.C. 0689, June 12, 2008, the Commission denied benefits noting “Petitioner has not presented any medical evidence containing any history of any type of work activity to support repetitive trauma.”

In the right case with the right evidence, we note the Commission is throwing some of these cases out. One of our partners has obtained two separate denials from this Commission on repetitive trauma claims. Please also note the Commission will readily award benefits if clear expert and lay testimony shows the condition is related to the work.

If you have questions, comments or thoughts about defending repetitive trauma claims, please send a reply.