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No. 2--04--0512WC

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

Illinois Workers' Compensation Commission Division

JUSTICE GOLDENHERSH delivered the opinion of the court:

Claimant, Lesley Bonney, sought benefits pursuant to the Workers' Compensation Act (Act) (820ILCS 305/1 et seq.(West 2000)) for repetitive trauma injuries she allegedly sustained while employed asa nursing assistant by Kishwaukee Community Hospital, the employer. The arbitrator concluded thatclaimant sustained accidental injuries arising out of and in the course of her employment and that timelynotice was given. The arbitrator awarded temporary total disability (TTD) from January 25, 2001,through October 31, 2002, for a total of 91 6/7 weeks at a rate of $250.99 per week, and $4,461 inoutstanding medical bills, which included all outstanding medical bills except for a bill in the amount of$153.80 due Dr. Thomas Adkins for services related to treatment for claimant's left cubital tunnelsyndrome. On review, the Illinois Industrial Commission (Commission)⁽¹⁾ affirmed the decision of thearbitrator with modifications. The Commission found that claimant sustained an accidental injury onJanuary 24, 2001, and that a causal connection exists between the accident and claimant's bilateral carpaltunnel syndrome and bilateral basilar joint arthritis, but that no causal connection exists between theaccident and claimant's left cubital tunnel condition. The Commission agreed with the arbitrator that theemployer was not responsible for the $153.80 bill from Dr. Adkins, and further found that the employerwas not responsible for another bill in the amount of $184 for an EMG, as it, too, related to claimant'sleft cubital tunnel condition. The Commission denied claimant's request for penalties and attorney fees. The circuit court of De Kalb County confirmed the Commission in its entirety. The issues raised by theemployer on appeal are: (1) whether claimant sustained repetitive trauma injuries to her right thumb andleft thumb arising out of and in the course of her employment; (2) whether the Commission erred inoverruling the employer's objection to Dr. Steven Glasgow's causation testimony, which was based onGhere v. Industrial Comm'n, 278 Ill. App. 3d 840, 663 N.E.2d 1046 (1996); (3) whether theCommission's decision finding that claimant's bilateral carpal tunnel condition arose out of and in thecourse of her employment is against the manifest weight of the evidence or error as a matter of law; and(4) whether the Commission's award of TTD is in error. We affirm.

FACTS

Claimant, age 55 at the time of the hearing, began working for the employer as a nursingassistant in 1969 and worked continuously in that capacity until January 24, 2001. Claimant testifiedshe is 5 feet 2 inches tall and weighs 112 pounds. While working for the employer, claimant wasoften assigned elderly patients who had suffered strokes and were without use of their limbs or werealcoholics. Many of her patients were combative. They normally weighed between 150 and 250pounds. Claimant's duties included changing sheets, bathing patients, moving patients from beds tochairs and commodes, and pushing patients on gurneys. She was assigned approximately six patientsper shift.

Shelly Johnson, who is employed by the employer as an employee health nurse andoccupational coordinator, corroborated claimant's testimony that claimant's job required her to liftpatients in excess of 200 pounds, many of whom were stroke victims or combative.

On January 24, 2001, claimant reported to the employer's emergency room after discoveringshe could no longer button patients' gowns and experiencing stiffness, tingling, and soreness in bothher hands. According to claimant, she began experiencing symptoms in her left hand six or sevenmonths prior to January 24, 2001. The symptoms in her right hand started later. At the emergencyroom, claimant was diagnosed with chronic bilateral wrist pain with probable bilateral carpal tunnelsyndrome. Claimant was ordered not to lift over five pounds, making her unable to work.

An accident report was admitted into evidence. It was signed by claimant on February 10,2001. In the report, claimant set forth that her injuries occurred while lifting, pulling, and pushingpatients, and her symptoms existed for approximately one year, with the symptoms gettingprogressively worse. She indicated that the pain in her hands kept her up at night and described thearea of injury as both wrists.

After claimant's emergency room visit, she followed up with Dr. Glasgow and his partner, Dr.Taizoon Baxamusa. Dr. Glasgow is an orthopedic surgeon who is "fellowship trained in sportsmedicine." Dr. Baxamusa is an orthopedic surgeon who is a fellowship-trained hand specialist.

Dr. Glasgow first examined claimant on February 8, 2001, at which time he diagnosedclaimant as suffering from bilateral carpal tunnel syndrome. Dr. Glasgow next saw claimant onFebruary 22, 2001, after which he added to his diagnosis that claimant was also suffering from mildcarpometacarpal degenerative joint disease in the left thumb based on a positive grind test to the leftthumb. Dr. Glasgow determined that claimant had a compressive neuropathy of the ulnar nerve atthe right elbow, which is commonly referred to as cubital tunnel syndrome. Ultimately, Dr. Glasgowrecommended carpal tunnel release surgeries to claimant's right and left hands. Claimant underwenta left carpal tunnel release on March 21, 2001, and a right carpal tunnel release on June 13, 2001.

Dr. Glasgow testified that claimant's left and right carpal tunnel conditions both resolvedfollowing surgeries, but as of August 13, 2001, claimant continued to have problems with her lefthand. Dr. Glasgow recommended surgery to the left carpometacarpal joint and referred claimant toDr. Baxamusa. Dr. Glasgow opined that there was causal connection between the accident inquestion and claimant's bilateral carpal tunnel syndrome and her left thumb condition. With regardto the first carpometacarpal joint, Dr. Glasgow specifically stated that the condition was severe. Healso stated that claimant's work as a nursing assistant for the number of years she did it at leastaggravated the situation, if not caused it.

Dr. Baxamusa examined claimant on August 27, 2001, and found evidence of left thumbbasilar joint arthritis, as well as basilar joint arthritis in the right thumb, but to a lesser extent. OnDecember 10, 2001, Dr. Baxamusa performed left thumb basilar joint arthroplasty on claimant. OnApril 16, 2002, Dr. Baxamusa restricted claimant to lifting no more than 10 pounds and ordered workhardening. On August 2, 2002, Dr. Baxamusa noted that claimant was getting stronger but was nowexperiencing numbness and tingling in her ring and small fingers. Dr. Baxamusa last examinedclaimant on August 19, 2002. His examination showed weakness in claimant's ulnar nerve, which isindicative of cubital tunnel syndrome. Claimant later underwent left elbow surgery, which theCommission determined was unrelated to employment. Dr. Baxamusa did not offer an opinion oncausal connection with regard to carpal tunnel, but focused on claimant's thumbs. He specificallyopined that if claimant was doing a lot of pinching, loading, and gripping with her thumb, thoseactivities would exacerbate basilar joint arthritis.

Dr. John Ruder testified for the employer. He is board certified in plastic surgery,reconstructive surgery, general surgery, and surgery for the hands and upper extremities. He hasperformed numerous carpal tunnel surgeries in his practice, as well as some surgeries involving thecarpometacarpal joint of the thumb. Dr. Ruder examined claimant's medical records and her jobduties. He found no causal connection between claimant's carpal tunnel syndrome and her job, andno causal connection between her job and her thumb condition. He agreed that no one knew exactlywhat caused claimant's thumb condition, and said that it could have been caused by something assimple as turning a doorknob or pinching a key. On cross-examination, Dr. Ruder admitted that ifa person's job involved repetitive lifting of 200-pound patients, then such activities could lead tocarpal tunnel syndrome and exacerbation of bilateral joint arthritis. He did not believe that claimant'sduties required her to perform the type of repetitive, forceful activities necessary to cause carpaltunnel or bilateral joint arthritis.

ANALYSIS

I

The first issue raised by the employer is whether claimant sustained repetitive trauma injuriesto her right and left thumbs arising out of and in the course of her employment. The employer arguesthat claimant failed to show that her right thumb condition manifested itself on January 24, 2001, thedate the Commission found that all of claimant's conditions manifested themselves. Employer pointsout that no mention was made of an injury to claimant's right thumb until August 29, 2001, when Dr.Baxamusa set forth that there was evidence, to a milder extent, on the right thumb, which was lesssymptomatic. At that time, Dr. Baxamusa noted a one-year history of basilar thumb pain and crepituson the left thumb, but made no mention of any complaints of right thumb pain. Employer argues thatclaimant did not start noticing symptoms in her right thumb until November 29, 2001, and, therefore,the right thumb condition cannot be connected back to claimant's employment, which ended onJanuary 24, 2001.

Employer further argues that because the Commission found January 24, 2001, to be themanifestation date for all of claimant's various conditions, including the right thumb, it was impossiblefor claimant to provide notice of her right thumb condition, as she did not complain of the conditionuntil August 29, 2001, or have symptoms until November 29, 2001. As to the left thumb, theemployer maintains that claimant failed to prove causal connection. Employer insists that theCommission's finding of causal connection between claimant's work activities and her right thumb andher left thumb conditions was against the manifest weight of the evidence and erroneous as a matterof law.

It is the function of the Commission to resolve disputed questions of fact, including those ofcausal connection, to decide which of the conflicting medical views is to be accepted, and to judgethe credibility of the witnesses and draw permissible inferences from the evidence. Dexheimer v.Industrial Comm'n, 202 Ill. App. 3d 437, 442, 559 N.E.2d 1034, 1037 (1990). A reviewing courtis not to discard the findings of the Commission merely because different inferences could be drawnfrom the same evidence. Dexheimer, 202 Ill. App. 3d at 443, 559 N.E.2d at 1037. The Commission'sdecision should be set aside only if it is against the manifest weight of the evidence. Gust K. NewbergConstruction v. Industrial Comm'n, 230 Ill. App. 3d 96, 111, 594 N.E.2d 758, 768 (1992). For afinding to be contrary to the manifest weight of the evidence, an opposite conclusion must be clearlyapparent. Dolce v. Industrial Comm'n, 286 Ill. App. 3d 117, 120, 675 N.E.2d 175, 178 (1996).

Here, claimant worked as a nursing assistant for the employer for over 30 years. She startedexperiencing pain in her hands and wrists long before she sought treatment at the employer'semergency room. On January 24, 2001, claimant was forced to go to the emergency room becauseshe could no longer button patients' gowns. She gave a history of experiencing pain, numbness, andtingling in both her hands for six or seven months prior to the date in question. Claimant wasdiagnosed with bilateral carpal tunnel syndrome by Dr. Glasgow. After he started treating claimant,it became apparent to Dr. Glasgow that claimant's condition was more severe.

Dr. Glasgow noted arthritic changes in claimant's left first carpometacarpal joint after X rayswere taken on February 8, 2001. On February 22, 2001, Dr. Glasgow performed a more detailedexamination and noted a positive grind test at the right first carpometacarpal and carpal tunnel joints. He specifically noted that in addition to carpal tunnel syndrome, claimant was also suffering from mildcarpometacarpal degenerative joint disease in the left thumb. Dr. Glasgow found it difficult to discernwhere all of claimant's pain and dysfunction was coming from. After treating her for bilateral carpaltunnel syndrome by performing releases on both her right and left wrists, Dr. Glasgow referredclaimant to Dr. Baxamusa to deal with claimant's carpometacarpal degenerative joint disease.

Dr. Baxamusa first examined claimant on August 27, 2001, at which time he noted aprominent arthritic appearance and positive crepitus in grind testing in claimant's left thumbcarpometacarpal metacarpal joint, and noted the same, but to a lesser extent, on the right thumb. Weagree with claimant that she should not be denied compensation because the physicians did notimmediately recognize the extent of her injuries. It is common for physicians to formulate ongoingand more definitive diagnoses and recommendations after subsequent examinations and treatment. With regard to the issue of notice, we point out that the purpose of the notice requirementof the Act is to enable an employer to investigate an alleged accident. Gano Electric Contracting v.Industrial Comm'n, 260 Ill. App. 3d 92, 95, 631 N.E.2d 724, 727 (1994). The notice requirementis met if the employer possesses known facts related to the accident within 45 days, and a claim isbarred only if no notice whatsoever is given. Gano, 260 Ill. App. 3d at 96, 631 N.E.2d at 727. OurGeneral Assembly has mandated a liberal construction of the notice requirement, and, therefore, ifsome notice has been given, even if inaccurate or defective, the employer must show that it has beenunduly prejudiced. Gano, 260 Ill. App. 3d at 96, 631 N.E.2d at 727.

In the instant case, claimant went to the employer's emergency room on January 24, 2001,complaining of pain in both of her hands. She filled out an accident report on February 10, 2001, inwhich she notified the employer that she had been experiencing pain in both her wrists. TheCommission determined that claimant gave timely notice. The fact that claimant did not specificallystate she was experiencing pain in her thumbs does not mean that she did not give proper notice ofher injuries. The employer was in no way prejudiced by claimant's lack of the term "thumb." Claimant was off work as of January 24, 2001, at which time the employer was made aware of thepain in claimant's hands.

As to whether claimant's injuries are the result of a work- related accident arising out of andin the course of her employment, claimant testified that her job required her to engage in heavy andrepetitive lifting activities consisting of moving large and immobile patients. Shelly Johnsoncorroborated claimant's testimony in this regard. Even the employer's expert, Dr. Ruder, agreed thatrepetitive forceful activities can lead to the onset of basilar joint arthritis. Dr. Baxamusa opined thatclaimant's basilar joint arthritis may have been exacerbated by her activities as a nursing assistant. Claimant's activities required her to change sheets, assist patients with dressing, including buttoningand unbuttoning gowns, and similar activities that require the pinching and grasping motions that leadto basilar joint arthritis.

Weighing all the evidence, the Commission found a causal connection between claimant'semployment and her right and left thumb conditions. Whether an injury arises out of and in thecourse of a claimant's employment is a question of fact for the Commission. Beattie v. IndustrialComm'n, 276 Ill. App. 3d 446, 449, 657 N.E.2d 1196, 1199 (1995). The fact that a work-relatedaccident may aggravate or accelerate a preexisting condition does not mean that the employee is notentitled to benefits, so long as the work-related accident was a factor contributing to the disability. Newberg Construction, 230 Ill. App. 3d at 111, 594 N.E.2d at 768. The Commission's decisions withregard to the right and left thumbs cannot be said to be against the manifest weight of the evidence.

II

The second issue raised by the employer is whether the Commission erred in overruling itsobjection to Dr. Glasgow's causation testimony, which was based upon Ghere v. Industrial Comm'n,278 Ill. App. 3d 840, 663 N.E.2d 1046 (1996), because no report was issued notifying the employeras to what Dr. Glasgow's opinions would be on the issue of causal connection. The employercontends that claimant's attorney's letter notifying the employer's attorney that Dr. Glasgow wouldrender opinions regarding causal connection was too broad.

In Ghere, the employee died of a heart attack while working for the employer. Theemployee's doctor testified that while he treated the employee on several occasions, he never treatedthe employee for heart problems. The arbitrator sustained the employer's objection to the doctor'stestimony regarding whether the employee's work activities or environment could or might haveprecipitated his heart attack, because the opinions were not furnished to the employer 48 hours priorto the hearing, in violation of section 12 of the Act (820 ILCS 305/12 (West 1994)). On appeal, theGhere court found that the doctor's causation opinion would have gone beyond the contents of hismedical records, because there was no mention of causation in the records or that the doctor evertreated the employee for a heart condition. Because there was nothing in the records to put theemployer on notice that the doctor had an opinion regarding causation that the employer could haverequested, the arbitrator's exclusion of such testimony was upheld. Ghere, 278 Ill. App. 3d at 846,663 N.E.2d at 1046.

Contrary to Ghere, in the instant case, Dr. Glasgow's records contain details about histreatment of claimant's bilateral carpal tunnel syndrome and basilar joint arthritis, making the instantcase more akin to Homebrite Ace Hardware v. Industrial Comm'n, 351 Ill. App. 3d 333, 814 N.E.2d126 (2004). In Homebrite, this court found that the employee's doctor could testify as to causationof the employee's neck injury, even though no medical report was tendered to the employer notifyingthe employer that the doctor would testify about the issue. We pointed out that in Ghere, the doctorhad never treated the employee's heart condition, whereas in Homebrite, the doctor did treat theemployee for his neck problems, and the doctor's records contained details about such treatment andthe employee's neck complaints. Accordingly, the records put the employer on notice that the doctormight testify as to a causal relationship between the neck condition and the employee's work accident. Homebrite, 351 Ill. App. 3d at 339, 814 N.E.2d at 132.

Likewise, in the instant case, the employer could not have been surprised by Dr. Glasgow'sopinions regarding causation, especially in light of the fact that claimant's attorney even provided theemployer's attorney with a letter indicating that he intended to inquire into the issue of causalconnection with regard to both the bilateral carpal tunnel and basilar joint arthritis conditions. Thefact that Dr. Glasgow did not render an opinion regarding claimant's right thumb condition, eventhough the letter stated he would, does not change our determination. Relying on Homebrite, we findthere was no error in allowing Dr. Glasgow to offer opinion testimony regarding causation.

III

The third issue raised by the employer is whether the Commission's finding that claimant'sbilateral carpal tunnel condition arose out of and in the course of her employment is against themanifest weight of the evidence or error as a matter of law. The employer argues that Dr. Glasgow'sopinion regarding carpal tunnel was not well taken, because Dr. Glasgow did not know the detailsof claimant's job. The employer asserts that the opinion of Dr. Ruder is more convincing because Dr.Ruder obtained a detailed understanding of claimant's work activities and did not find that heractivities were necessarily prolonged, forceful, or repetitive as to cause carpal tunnel syndrome.

Dr. Glasgow testified that claimant's bilateral carpal tunnel syndrome was a direct result ofclaimant's working as a nursing assistant for a prolonged number of years. He pointed out therepetitive nature of the tasks performed by a nursing assistant. He testified that a nursing assistantwould be required to perform numerous pushing and pulling tasks. Dr. Ruder, the employer's ownexpert, admitted that prolonged use of the hands in a forceful manner, such as would be required tomanipulate patients over the course of a 30-year career as a nursing assistant, could cause carpaltunnel syndrome, as evidenced by the following colloquy between Dr. Ruder and claimant's attorney:

"Q. Prolonged, forceful use would include lifting patients, say, in excess of 200pounds, rotating them, pulling them up out of wheelchairs, or in to beds, using weight beltsor straps in order to assist getting patients in and out of bath tubs, those types of activities,couldn't it?

A. It could, yes.

Q. And so prolonged, forceful use of that type in manipulating patients over a courseof 30 plus years, might, indeed, lead to the development of carpal-tunnel syndrome?

A. Correct.

Q. And if this particular patient, Lesley Bonney, was engaged in those activities overa period of 30-plus years, in terms of patient manipulation, then she might have been subjectto the prolonged, forceful use that you describe in terms of the development of her carpal-tunnel syndrome bilaterally?

A. Yes.

Q. And, therefore, if that were the case, the need for surgery would relate to theprolonged forceful use that gave rise to the symptomatology of the carpal-tunnel syndrome,correct?

A. Correct."

Under these circumstances, we cannot say the Commission's decision is not supported by theevidence.

As previously discussed, it is the Commission's function to resolve disputed questions of fact,including causal connection, and to decide which of the conflicting views should be accepted. Weighing the evidence here, the Commission found a causal connection between claimant's bilateralcarpal tunnel syndrome and claimant's employment as a nursing assistant over the course of theprevious 30 years. The Commission obviously found claimant's testimony regarding the nature of herjob and Shelly Johnson's corroboration of that testimony more credible than Dr. Ruder's testimonyregarding the nature of claimant's duties. After reviewing all the evidence, we cannot say theCommission's decision is not supported by the evidence.

IV

The last issue raised by the employer is whether the Commission erred in its award of TTD. The employer argues that, at most, claimant is entitled to TTD benefits only up to August 19, 2002,as it can be inferred from Dr. Baxamusa's testimony that claimant's left thumb condition was resolvedto the extent that the weight restriction would have been upgraded to at least 25 pounds, a weightrestriction the employer could have accommodated. The employer insists that after that date,claimant was off work due to her left elbow condition, a condition for which the employer is notresponsible.

The issues of whether an employee is temporarily totally disabled, as well as the period ofsuch disability, are questions of fact for the Commission, and its decision will not be disturbed onreview unless it is against the manifest weight of the evidence. Sorenson v. Industrial Comm'n, 281Ill. App. 3d 373, 384-85, 666 N.E.2d 713, 720-21 (1996). Here, we cannot say the Commission'sdecision is against the manifest weight of the evidence.

Medical records reveal that claimant was authorized off work as of January 24, 2001, whenshe was told not to lift over five pounds. Claimant did not return to work after that date, because ofincreasing symptoms and the continued imposition of weight restrictions. Shelly Johnson, theemployer's own employee health nurse, testified that the hospital could not accommodate a 10-poundrestriction. Johnson testified that the minimum weight restriction that could be accommodated bythe employer is 25 pounds. The employer's contention that as of August 19, 2002, claimant's leftthumb condition resolved to the point that the weight restriction could have been upgraded to 25pounds is speculative and not based on the record presented here. Accordingly, the Commission'sfindings with respect to the award of and the length of TTD benefits are not against the manifestweight of the evidence.

For the foregoing reasons, the judgment of the circuit court of De Kalb County is herebyaffirmed.

Affirmed.

McCULLOUGH, P.J., and HOFFMAN, CALLUM, and HOLDRIDGE, JJ., concur.

1.  Effective January 1, 2005, the name of the Industrial Commission was changed to the "Illinois Workers' Compensation Commission." However, because the Industrial Commission was named as such when the instant cause was originally filed, we will use this name for purposes of consistency.