{ "id": 5666413, "name": "MILDRED I. DOWNS, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Capri Foods, Inc., Appellee)", "name_abbreviation": "Downs v. Industrial Commission", "decision_date": "1986-04-25", "docket_number": "No. 5-85-0321WC", "first_page": "383", "last_page": "390", "citations": [ { "type": "official", "cite": "143 Ill. App. 3d 383" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "111 Ill. 2d 595", "category": "reporters:state", "reporter": "Ill. 2d", "opinion_index": 0 }, { "cite": "375 N.E.2d 81", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "71 Ill. 2d 283", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5450105 ], "opinion_index": 0, "case_paths": [ "/ill-2d/71/0283-01" ] }, { "cite": "92 N.M. 261", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1557074 ], "weight": 4, "pin_cites": [ { "page": "263" }, { "page": "1092" } ], "opinion_index": 0, "case_paths": [ "/nm/92/0261-01" ] }, { "cite": "214 N.E.2d 80", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "81-82" } ], "opinion_index": 0 }, { "cite": "5 Ohio St. 2d 85", "category": "reporters:state", "reporter": "Ohio St. 2d", "case_ids": [ 1787424 ], "pin_cites": [ { "page": "86-87" } ], "opinion_index": 0, "case_paths": [ "/ohio-st-2d/5/0085-01" ] }, { "cite": "324 N.W.2d 622", "category": "reporters:state_regional", "reporter": "N.W.2d", "weight": 2, "pin_cites": [ { "page": "625" }, { "page": "625" } ], "opinion_index": 0 }, { "cite": "118 Mich. App. 325", "category": "reporters:state", "reporter": "Mich. App.", "case_ids": [ 2237360 ], "weight": 2, "pin_cites": [ { "page": "333" }, { "page": "333" } ], "opinion_index": 0, "case_paths": [ "/mich-app/118/0325-01" ] }, { "cite": "263 N.W.2d 30", "category": "reporters:state_regional", "reporter": "N.W.2d", "opinion_index": 0 }, { "cite": "79 Mich. App. 750", "category": "reporters:state", "reporter": "Mich. App.", "case_ids": [ 2162254 ], "opinion_index": 0, "case_paths": [ "/mich-app/79/0750-01" ] }, { "cite": "45 N.W.2d 286", "category": "reporters:state_regional", "reporter": "N.W.2d", "year": 1977, "pin_cites": [ { "page": "287" } ], "opinion_index": 0 }, { "cite": "329 Mich. 273", "category": "reporters:state", "reporter": "Mich.", "case_ids": [ 1902994 ], "year": 1977, "pin_cites": [ { "page": "276" } ], "opinion_index": 0, "case_paths": [ "/mich/329/0273-01" ] }, { "cite": "43 N.W.2d 890", "category": "reporters:state_regional", "reporter": "N.W.2d", "weight": 2, "pin_cites": [ { "page": "891" }, { "page": "891" } ], "opinion_index": 0 }, { "cite": "328 Mich. 367", "category": "reporters:state", "reporter": "Mich.", "case_ids": [ 1905029 ], "weight": 2, "pin_cites": [ { "page": "369" }, { "page": "369" } ], "opinion_index": 0, "case_paths": [ "/mich/328/0367-01" ] }, { "cite": "68 Cal. Rptr. 164", "category": "reporters:state", "reporter": "Cal. Rptr.", "opinion_index": 0 }, { "cite": "440 P.2d 236", "category": "reporters:state_regional", "reporter": "P.2d", "opinion_index": 0 }, { "cite": "68 Cal. 2d 569", "category": "reporters:state", "reporter": "Cal. 2d", "case_ids": [ 2306137 ], "opinion_index": 0, "case_paths": [ "/cal-2d/68/0569-01" ] }, { "cite": "263 N.Y.S.2d 785", "category": "reporters:state", "reporter": "N.Y.S.2d", "opinion_index": 0 }, { "cite": "24 A.D.2d 791", "category": "reporters:state", "reporter": "A.D.2d", "case_ids": [ 3157624, 3167204 ], "opinion_index": 0, "case_paths": [ "/ad2d/24/0791-02", "/ad2d/24/0791-01" ] }, { "cite": "269 N.Y.S.2d 338", "category": "reporters:state", "reporter": "N.Y.S.2d", "opinion_index": 0 }, { "cite": "25 A.D.2d 892", "category": "reporters:state", "reporter": "A.D.2d", "case_ids": [ 3159272, 3148991 ], "opinion_index": 0, "case_paths": [ "/ad2d/25/0892-01", "/ad2d/25/0892-02" ] }, { "cite": "414 N.Y.S.2d 764", "category": "reporters:state", "reporter": "N.Y.S.2d", "opinion_index": 0 }, { "cite": "68 A.D.2d 961", "category": "reporters:state", "reporter": "A.D.2d", "case_ids": [ 5529450, 5535539 ], "opinion_index": 0, "case_paths": [ "/ad2d/68/0961-01", "/ad2d/68/0961-02" ] }, { "cite": "305 N.E.2d 529", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "56 Ill. 2d 84", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5403861 ], "opinion_index": 0, "case_paths": [ "/ill-2d/56/0084-01" ] }, { "cite": "487 N.E.2d 356", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "138 Ill. App. 3d 880", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 8499734 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill-app-3d/138/0880-01" ] }, { "cite": "389 N.E.2d 536", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "75 Ill. 2d 413", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2990652 ], "opinion_index": 0, "case_paths": [ "/ill-2d/75/0413-01" ] } ], "analysis": { "cardinality": 816, "char_count": 18043, "ocr_confidence": 0.772, "pagerank": { "raw": 1.0219370417503105e-07, "percentile": 0.545521186756448 }, "sha256": "5b837e022c2804e39dfd2af35e638cfe2cf18e5f4b440bbc12cdfefb1c675999", "simhash": "1:bc44a7cd6132d72b", "word_count": 2897 }, "last_updated": "2023-07-14T15:11:23.440803+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "MILDRED I. DOWNS, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Capri Foods, Inc., Appellee)." ], "opinions": [ { "text": "PRESIDING JUSTICE WEBBER\ndelivered the opinion of the court:\nClaimant filed an application for adjustment of claim under the Workers\u2019 Occupational Diseases Act (Ill. Rev. Stat. 1983, ch. 48, par. 172.36 et seq.). An arbitrator awarded her both temporary total disability and permanent partial disability benefits. On review the Industrial Commission reversed the arbitrator and denied benefits. The Commission found that claimant did not suffer from an occupational disease or become exposed to one, and further found that her condition was not the result of injury under the Workers\u2019 Compensation Act (Ill. Rev. Stat. 1983, ch. 48, par. 138.1 et seq.). Claimant then sought review in the circuit court of Montgomery County. That court confirmed the Commission, and claimant appeals.\nThe evidentiary record disclosed that claimant was a meat wrapper for the respondent, Capri Foods, Inc., d/b/a Capri IGA, a supermarket in Hillsboro, and had been so employed for 18 years. Her duties included wrapping, pricing, and displaying meat. The meat was placed on trays which were shelved at various heights ranging from six inches above the floor to a distance above claimant\u2019s head. The trays varied in weight, depending upon the type of meat. Hams weighing 8 to 10 pounds each were placed four to a tray; roasts weighing 3 to 6 pounds each were placed six or seven to a tray. During the holiday season claimant handled turkeys which came two to a box, each weighing 23 to 24 pounds. About 500 cases of turkeys arrived each holiday. Claimant also unloaded cases of meat from delivery trucks. These cases weighed 60 to 70 pounds each. Claimant testified that she worked eight hours per day, five days per week, lifting trays from the shelves to wrap, price, and display the meat.\nClaimant\u2019s physical complaints centered in her back and right leg. According to her testimony, the condition worsened during the 30-day period preceding June 5, 1980, the day upon which she left her job. She stated that she has not worked since that date.\nClaimant was admitted to St. John\u2019s Hospital in Springfield on June 6, 1980. She received traction therapy and a myelogram. She was again hospitalized in November 1980 when additional traction therapy and another myelogram were received and performed. In January 1981 she was again hospitalized and another myelogram was performed. In March 1981 she was referred to a doctor in Canada. That doctor performed an enzyme injection of the affected area of her back.\nOn cross-examination claimant admitted that she had had difficulty in walking while on vacation in September 1979 and further admitted to having \u201cback spells\u201d off and on during the years preceding the hearing. She had been told that she had degenerative-disc disease.\nThe depositions of three physicians were introduced into the record. They were those of Dr. Basilius Zaricznyj, an orthopedic surgeon, Dr. Lyle Wacaser, a neurosurgeon, and Dr. Marshall Conrad, an orthopedic surgeon. All were in substantial agreement as to the diagnosis: degenerative-disc disease and arthritis of the spine. However, they differed on the etiology of the conditions.\nDr. Zaricznyj stated that a degenerated disc can result from one injury, many injuries, or simply through the aging process alone. He said that degenerative-disc disease is more frequently found in persons not engaged in heavy physical labor. On cross-examination he stated that lifting heavy boxes of meat for 40 hours per week for 17 or 18 years could cause the disease, but also maintained that it can occur in the absence of heavy lifting.\nDr. Wacaser stated that when he examined claimant he found a bulging disc at L4 \u2014 L5. He said that a bulging disc can result from either trauma or degeneration and the only way to determine the cause is through the history taken from the patient. He further stated that when an individual, such as claimant, has had previous back problems and then develops degenerative-disc disease, the cause is probably deterioration. He said that employment of the type engaged in by claimant would aggravate the condition.\nDr. Conrad testified to an opinion, based upon claimant\u2019s history and a hypothetical question, that repeated bending and lifting at work may have caused claimant\u2019s degenerative-disc disease. On cross-examination he stated that the disease may occur as a result of either trauma or the normal aging process. He stated that although claimant\u2019s condition could have occurred regardless of her employment, the employment aggravated the condition.\nNo new evidence was presented to the Commission on review. As has been indicated, the Commission denied benefits. The salient portion of its order is:\n\u201cThe Commission finds that the Petitioner did not sustained [sic] an occupational \u2018disease\u2019 within the generally understood meaning of that term as a condition which resulted from a [sic] etiologic agent; that \u2018degenerative disc disease,\u2019 at least in the context of this record, does not constitute such a disease; and that the testimony as to repeated bending and lifting does not constitute exposure to an occupational disease within the meaning of the relevant Act. The Commission further finds that while the Petitioner may suffer from a back condition, her condition of ill-being is not related to a compensable accident under the Workers\u2019 Compensation Act\u2019s definition of accident because the record in this case, including Petitioner\u2019s own testimony, fails to establish a specific time, place and occurrence as required by the Act. [Citation.] Furthermore, the record provides no basis, in factor [sic] medical opinion for a finding of \u2018accident\u2019 on a \u2018repetitive trauma\u2019 theory.\u201d\nClaimant presents two issues for our consideration: (1) whether the Commission erred in holding that degenerative-disc disease is not an occupational disease within the meaning of the statute; (2) whether claimant established by the manifest weight of the evidence that she suffered from an occupational disease. We agree with the Commission on the first issue and therefore need not be concerned with the second.\nPrior to its amendment in 1975, section 1(d) of the Workers\u2019 Occupational Diseases Act (Ill. Rev. Stat. 1973, ch. 48, par. 172.36(d)) provided as follows:\n\u201c[T]he term \u2018Occupational Disease\u2019 means a disease arising out of and in the course of the employment. Ordinary diseases of life to which the general public is exposed outside of the employment shall not be compensable, except where the said diseases follow as an incident of an occupational disease as defined in this Section.\u201d\nIn 1975 section 1(d) of the Workers\u2019 Occupational Disease Act (Ill. Rev. Stat. 1975, ch. 48, par. 172.36(d)) was amended to provide as follows:\n\u201c[T]he term \u2018Occupational Disease\u2019 means a disease arising out of and in the course of the employment or which has become aggravated and rendered disabling as result of the exposure of the employment.\u201d\nIn 1976 the following language was added to section 1(d) of the Workers\u2019 Occupational Diseases Act (Ill. Rev. Stat. 1977, ch. 48, par. 172.36(d)):\n\u201c*** Such aggravation shall arise out of a risk peculiar to or increased by the employment and not common to the general public.\u201d\nThere appears to be no direct case authority in this State interpreting the amendments to section 1(d). They are referred to obliquely in Bunney v. Industrial Com. (1975), 75 Ill. 2d 413, 389 N.E.2d 536 (noting that the Act had been amended to cover situations involving the aggravation of a preexisting condition) and Peoria County Belwood Nursing Home v. Industrial Com. (1985), 138 Ill. App. 3d 880, 487 N.E.2d 356 (noting that the legislature nullified the rule in International Harvester Co. v. Industrial Com. (1973), 56 Ill. 2d 84, 305 N.E.2d 529, that aggravation of a preexisting disease must be traceable to a specific time, place and cause). Claimant has tacitly acknowledged this fact by citing cases from other jurisdictions. There is a clear split of authority among the courts of review in our sister States which have considered the issue of whether a degenerative condition, such as degenerative-disc disease, is an \u201coccupational disease.\u201d See generally IB A. Larson, Workmen\u2019s Compensation sec. 41.33, at 7-373 through 7-388 (1986).\nThe courts of New York have repeatedly held that injuries which have resulted from repeated bending or lifting may constitute an occupational disease within the meaning of New York law (e.g., Keefer v. Norton Co. (1979), 68 A.D.2d 961, 414 N.Y.S.2d 764 (holding that a herniated disc resulting from repeated lifting is an occupational disease); Goyer v. Fred K. Blanchard, Inc. (1966), 25 A.D.2d 892, 269 N.Y.S.2d 338 (holding that petitioner sustained an occupational disease when she experienced neck pain by repeated bending and turning); Fellows v. Syracuse Supply Co. (1965), 24 A.D.2d 791, 263 N.Y.S.2d 785 (holding that heavy lifting may be a distinctive feature of one\u2019s employment such that back pain and herniated disc or osteoarthritis degeneration caused by lifting may constitute an occupational disease)). In Freuhauf Corp. v. Workmen\u2019s Compensation Appeals Board (1968), 68 Cal. 2d 569, 440 P.2d 236, 68 Cal. Rptr. 164, the Supreme Court of California held that an employee\u2019s back condition resulting from repeated bending, twisting, and lifting is properly classified as an occupational disease rather than an injury. The Freuhauf court noted, however, that the California legislature has not defined the term \u201coccupational disease\u201d and has specifically rejected a definition which would limit \u201coccupational diseases\u201d to those diseases which are peculiar to a particular employment and to which the general public is not exposed.\nThe interpretations given to the term \u201coccupational disease\u201d by the courts of Michigan have been inconsistent. In Carter v. International Detrola Corp. (1950), 328 Mich. 367, 369, 43 N.W.2d 890, 891, the Supreme Court of Michigan held that repeated muscle use is \u201cnot so unique as to be \u2018characteristic of or peculiar to the business of the employer\u2019 \u201d since muscle use is common to most employment. Accordingly, the court held that plaintiff\u2019s muscle condition resulting from repeated lifting as a factory worker did not constitute \u201ca \u2018disability which is due to causes and conditions which are characteristic of and peculiar to the business of the employer\u2019.\u201d (328 Mich. 367, 369, 43 N.W.2d 890, 891.) The following year, the supreme court held that a plaintiff\u2019s lumbosacral strain and possible herniated disc resulting from repeated lifting and carrying heavy boxes was an occupational disease due to causes (bending and twisting) \u201cpeculiar to the occupation.\u201d (Underwood v. National Motor Castings Division (1951), 329 Mich. 273, 276, 45 N.W.2d 286, 287.) In Derwinski v. Eureka Tire Co. (1977), 79 Mich. App. 750, 263 N.W.2d 30, the Michigan Court of Appeals held that degenerative disc syndrome caused by repeated bending and lifting is a \u201cdisease\u201d within the meaning of the Michigan apportionment statute. The court of appeals later noted that the Derwinski court did not consider whether repeated bending and lifting was \u201cpeculiar to the employment.\u201d (Carter v. Lakey Foundry Corp. (1982), 118 Mich. App. 325, 333, 324 N.W.2d 622, 625.) The Carter court recognized that degenerative disc disease is an ordinary disease of life which may result from either degeneration through the aging process or trauma through repeated bending and lifting in one\u2019s employment. For this reason, the court stated that Michigan Workers\u2019 Compensation Appeal Board should \u201ccarefully consider the question of whether plaintiff\u2019s disability may be attributable to the unquestionably peculiar nature of his employment.\u201d 118 Mich. App. 325, 333, 324 N.W.2d 622, 625.\nThe highest courts of both Ohio and New Mexico have taken the position that degenerative diseases are not \u201coccupational diseases\u201d within the meaning of the statutes of those States. In Popham v. Industrial Com. (1966), 5 Ohio St. 2d 85, 86-87, 214 N.E.2d 80, 81-82, the Supreme Court of Ohio held that because degenerative-joint disease generally results from ordinary wear and tear and is usually an affliction incident to aging, the disease is not \u201cpeculiar to a particular employment\u201d as required by statute. In Mar able v. Singer Business Machines (1978), 92 N.M. 261, 586 P.2d 1090, the plaintiff alleged that she sustained curvature of the spine and arthritis from repeated lifting of heavy objects. In holding that the alleged diseases were not occupational diseases, the Supreme Court of New Mexico stated:\n\u201cLifting heavy objects while working on a loading dock is \u2018peculiar to the occupation of plaintiff, i.e., a condition of employment to which all dock workers are subject.\u2019 Nevertheless, other kinds of employment involve the lifting of heavy objects.\nAn \u2018occupational disease\u2019 does not include the ordinary disabilities of life such as ***, curvature of the spine or arthritis to which the general public is exposed unless the claimant can allege and prove how and why that disability is peculiar to claimant\u2019s occupation. It must be distinguished from disabilities suffered by the general population.\u201d (92 N.M. 261, 263, 586 P.2d 1090,1092.)\nUnlike the statutes of Ohio and New Mexico, which require that the \u201cdisease\u201d be peculiar to a particular employment, the Workers\u2019 Occupational Diseases Act requires that the aggravation of the disease arise out of a \u201crisk\u201d peculiar to a particular employment. Since claimant maintains that her degenerative-disc disease was aggravated by her employment, it is necessary to determine both whether her condition was aggravated by the exposure of the employment and whether the risk of repeated bending and lifting is peculiar to or increased by claimant\u2019s employment as a meat wrapper and not common to the general public.\nThe question of whether claimant\u2019s condition was aggravated by the exposure of the employment is simply a question of causation. Section 1(d) of the Workers\u2019 Occupational Diseases Act (Ill. Rev. Stat. 1983, ch. 48, par. 172.36(l)(d)) provides:\n\u201cA disease shall be deemed to arise out of the employment if there is apparent to the rational mind, upon consideration of all the circumstances, a causal connection between the conditions under which the work is performed and the occupational disease. The disease need not to have been foreseen or expected but after its contraction it must appear to have had its origin or aggravation in a risk connected with the employment and to have flowed from that source as a rational consequence.\u201d\nAlthough that portion of the statute excluding ordinary diseases of life to which the general public is exposed has been repealed, such a criterion is still relevant to the determination of whether a disease is causally connected to one\u2019s employment. The fact that the public in general is exposed to a certain disease lessens the chances that a person\u2019s employment causes or aggravates a disease.\nAs we have already indicated, the medical experts were agreed on the diagnosis of claimant\u2019s condition, but they did not agree on its cause. We agree with the Michigan court in Carter that causation must be carefully examined in such cases, and where there is conflicting medical evidence as to whether a particular disability is sufficiently connected with the employment to constitute an occupational disease, it is the province of the Commission to resolve such differences. (Fernandez v. Industrial Com. (1978), 71 Ill. 2d 283, 375 N.E.2d 81.) In our opinion there was ample evidence in the instant record from which the Commission could deduce that claimant\u2019s condition was not aggravated by her employment and therefore does not constitute an \u201coccupational disease\u201d within the meaning of the statute.\nFurthermore, it does not appear that claimant was exposed to any greater risk, as required by statute, than was the general public. The risk obviously is the bending and lifting. This is characteristic of many occupations and is a common movement made often by almost every human being in going about the ordinary affairs of life. The bending and lifting was not a \u201crisk peculiar to or increased by the employment and not common to the general public.\u201d Ill. Rev. Stat. 1983, ch. 48, par. 172.36(d).\nWe are therefore of the opinion that the Commission was correct in holding that the claimant did not suffer from an occupational disease.\nThe Industrial Commission also held that the claimant did not sustain an \u201caccidental injury\u201d within the meaning of the Workers\u2019 Compensation Act since the record failed to establish a specific time, place and cause of the occurrence. At the time of making that ruling the Commission did not have the benefit of this court\u2019s decision in Peoria County Belwood Nursing Home v. Industrial Com. (1985), 138 Ill. App. 3d 880, 487 N.E.2d 356; appeal allowed (1986), 111 Ill. 2d 595. Although claimant\u2019s counsel at oral argument insisted that relief was sought under the Workers\u2019 Occupational Diseases Act and not under Belwood, we believe that the Commission should review the record in the light of Belwood and under section 19(a)(1) of the Workers\u2019 Compensation Act (Ill. Rev. Stat. 1983, ch. 48, par. 138.19(a)(1)).\nThat portion of the Commission\u2019s order finding that the claimant did not suffer from an occupational disease is therefore affirmed; that portion finding that she did not sustain an accidental injury is reversed, and the cause is remanded to the Commission to consider the accidental injury portion of its order in the light of Belwood.\nAffirmed in part, reversed in part, and remanded with directions.\nMcNAMARA, LINDBERG, BARRY, and KASSERMAN, JJ., concur.", "type": "majority", "author": "PRESIDING JUSTICE WEBBER" } ], "attorneys": [ "Paul A. Guzzardo, of Calvo & Guzzardo, of Granite City, for appellant.", "G. Bradley Hantla, of G. Bradley Hantla, Ltd., of Litchfield, for appellee." ], "corrections": "", "head_matter": "MILDRED I. DOWNS, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Capri Foods, Inc., Appellee).\nFifth District (Industrial Commission Division)\nNo. 5\u201485\u20140321WC\nOpinion filed April 25, 1986.\nRehearing denied June 6, 1986.\nPaul A. Guzzardo, of Calvo & Guzzardo, of Granite City, for appellant.\nG. Bradley Hantla, of G. Bradley Hantla, Ltd., of Litchfield, for appellee." }, "file_name": "0383-01", "first_page_order": 405, "last_page_order": 412 }