Illinois Industrial Commission Utilized Last Day Of Work As Accident Date In Repetitive Trauma Claim Even Though Condition Manifested Itself At An Earlier Date Where Claimant Continued To Work Faithf

The Commission awarded benefits for claimant’s repetitive trauma knee injury based on a last-day-worked accident date, despite the fact that the condition manifested itself at an earlier date. An employee who discovers the onset of symptoms and their relationship to the employment but continues to work faithfully for several years without significant medical complications or lost working time, “may well be prejudiced if the actual breakdown pf the physical structure occurs beyond the period set by the statute.”

Since 1997, claimant was in charge of maintenance for defendant, an agricultural business selling fertilizers, fuel, seed and erecting and maintaining grain bins in the fall of every year from July to December. This work required claimant to kneel on perforated steel floors four to six hours per day. He testified that in 1995, while working on grain bins, he noticed swelling in his right knee and pain in hi knee joint. He also noticed that his right knee hurt when walking or climbing stairs. In September 1995, he sought treatment but continued to work without restrictions until the day before surgery on December 28, 1995. He alleged the last day of work-December 28, 1995,- as the accident date on his Application for Adjustment of Claim.

In awarding benefits, the arbitrator rejected defendant’s argument that the condition manifested itself prior to the alleged accident date and the filing of the application. The arbitrator noted that claimant indeed admitted that he knew prior to December 28, 1995, that his right knee condition was caused by his work activity repairing grains bins. The arbitrator further noted that claimant chose not to have surgery until after his seasonal work on the grain bins had been completed. The arbitrator explained that the general rule was that the date of accident in a claim alleging repetitive trauma was the date on which the condition manifested itself. The WCA, however, is not always so narrowly applied and exceptions to this general ruled to do exist. The arbitrator explained that under certain circumstances, the last day of work may be used as the accident date in repetitive trauma claims even though the condition “manifested itself” at an earlier date. This was especially true where the employee continues to work faithfully beyond the limitations period set forth in the WCA. The arbitrator found that such circumstances existed here.

The Commission affirmed, relying on the Illinois Supreme Court case of Oscar Mayer v. Industrial Commission for the proposition that the phrase “fact of the injury” was not synonymous with “fact of discovery.” The Commission further relied on Oscar Mayer by explaining that an employee who discovers the onset of symptoms and their relationship to the employment but continues to work faithfully for several 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 set by the statute.”

The Illinois industrial commission majority awarded wage differential award, reasoning that claimant should not be penalized for moving from Chicago to rural location with less job opportunities

A majority of the Commission held that claimant was entitled to wage differential benefits pursuant to section 8(d)1 of the Workers’ Compensation Act, even though claimant moved from Chicago to a rural area with less job opportunities. Claimant moved out of state in order to sustain himself and his family.

Claimant, journeyman tuckpointer, injured his back while assisting a co-worker in moving a hanging platform. He was diagnosed with a persistent severe left sciatica. Following treatment, he was assigned by defendant’s carrier to a medical case manager and vocational rehabilitation representative but was not provided with any job leads or interviews. He testified that he looked for work on his own, making 15 to 20 contact per weeks. He even attempted to return to tuckpointing work as foreman but could not continue due to back pain. He eventually secured light-duty employment at the rate of $7.00 per hour. However, he had to quit his job because he and his family were “nearly homeless.” He testified that the people that he and his wife and children were living with sold their house and he could not afford to remain in the Chicago area. Therefore, claimant and his family went to northern Wisconsin and move din with his family. After moving to northern Wisconsin, claimant continued to seek light work but did not find any regular employment. He stated that he maintained his family after moving by doing odd jobs for the elderly such as cleaning garages and painting residences. Claimant continued a formal job search through a Wisconsin state agency. He made ten contacts a week. However, there was not much work available in the area where he resided and he had no special training in any trade other than tuckpointing.

The arbitrator awarded temporary total disability for 138-6/7 weeks and $453 per week for life in wage differential benefits pursuant to section 8(d)1 of the WCA.

A majority of the Commission held that claimant submitted sufficient evidence to prove his entitlement to wage differential benefits. The majority relied on expert testimony along with the results of a valid functional capacity evaluation indicating his inability to return to tuckpointing. Despite this inability, claimant attempted to resume tuckpointing. Also, the majority found that claimant demonstrated that he conducted a thorough job search and that defendant’s two rehabilitation companies failed to offer him any assistance with this search. With regard to claimant’s move to Wisconsin, the majority determined that claimant should not be penalized for moving out of state in order to sustain himself and his family. Also, the majority determined that the $7.00 per hour job he quit prior to moving to Wisconsin was the best indicator of his earning capacity, given his permanent restrictions and limited education.

The dissent argued that claimant was not entitled to benefits pursuant to section 8(d) 1, reasoning that claimant removed himself from the Chicago labor market. The dissent explained that there were numerous jobs in Chicago but very few in rural northern Wisconsin. Further, the dissent found no support for the finding of partial incapacity given the absence of significant medical findings regarding treatment. The dissent noted that a myelogram and CT scan were negative for any serious or permanent injury, there were only subjective complaints of back pain and claimant was not under any medical care or undergoing treatment. The dissent replied on Durfee v. Industrial Commission, in which the appellate court denied section 8(d)1 benefits to the claimant, who had elected to pursue a different life style. Because the Durfee claimant “self-limited” his employment, the court held he could not obtain the award at the employer’s expense. The Commission found that in the instant case, claimant, too, had chosen a different life style, one which self-limited his wage opportunities.

Illinois industrial commission awarded benefits to teacher who fell in school hallway while walking to union meeting

The Commission held that claimant’s injures, sustained while walking to a union meeting, occurred in the course of employment, where the accident happened during working hours as a place were claimant would reasonably be int her performance of her duties and while engaged in something incidental to her employment. Also, the accident arose out of her employment, for the meeting was both a benefit to defendant and incidental to claimant’s employment, and the general public would not have had occasion to encounter the defect which caused claimant to fall.

Claimant, a teacher, for defendant-school district, was walking to a union meeting during working hours when she tripped on a wrestling mat left in the school hallway. She suffered a large tear of the rotator cuff along with severe capsulitis. A memorandum regarding the meeting was distributed to all teachers in their mailboxes. Those teachers who chose not to attend the meeting had to remain in their classrooms and work. A high percentage of teachers attended the meeting. Pursuant to the collective bargaining agreement between defendant and its employees, the union was permitted two general meetings per school year to begin at 3:00 p.m. with employees being released at 2:50 p.m. A union representative testified that the meetings were important to foster communication between defendant and its employees. He noted the importance of this meeting to both the union membership and the school district because of a recent acrimonious strike. Problems between defendant and the employees were discussed at the meetings were often resolved.

The arbitrator awarded benefits, finding that claimant’s injuries arose out of and in the course of employment. The arbitrator explained that claimant was attending a sanctioned meeting of the teacher’s union during working hours. The meeting was vital to both defendant and its employees. The arbitrator noted that the meeting was on the premises of defendant and claimant fell because of a defect on the premises. The arbitrator found it foreseeable claimant was walking. It was unique to the setting where claimant fell.

Therefore, the injury occurred “in the course of” claimant’s employment because it happened during working hours at a place where claimant would reasonably be in the performance of her duties and while claimant was engaged in something incidental to her employment.

Further, the arbitrator explained that because the injury was a condition related to defendant’s premises or the work environment, claimant’s injury arose out of her employment. The arbitrator explained that defendant permitted claimant use of its facilities for an activity that was both a benefit to defendant and incidental to her employment with defendant. The general public was not invited to the meeting, and the public would not have had occasion to encounter the defect which caused claimant to fall.

Upon review, the Commission affirmed and adopted the decision of the arbitrator.