Following the Peoria County Belwood Nursing Home decision recognizing the compensability of repetitive trauma in workers' compensation proceedings, appellate decisions have considered what proof requirements apply to repetitive trauma claims. This article discusses these cases.

I.  Introduction

In Peoria County Belwood Nursing Home v. Industrial Commission,¹ the Supreme Court of Illinois held that a repetitive trauma injury is compensable under the Illinois Workers' Compensation Act. The court reasoned that the Act was intended to compensate workers injured as a result of their employment, and that denying benefits because the injury did not result from a sudden, completely disabling mishap would penalize employees who faithfully perform their jobs despite discomfort and damage.²

Before the Peoria County Belwood decision, a workers' compensation claimant had to allege and prove a specific date, place, and cause of injury.³ The recognition of repetitive trauma claims in workers' compensation proceedings by the supreme court put Illinois in step with other jurisdictions.⁴

But claimants alleging a work-related injury based on the repetitive trauma theory must meet the same standard of proof as those alleging a specific accidental injury. In other words, they must allege an appropriate accident date⁵ and must show that 1) the injury is work-related and 2) not the result of a normal degenerative aging process.⁶ These requirements constitute a heavy burden for claimants.

This article discusses the proof requirements and limits of the repetitive trauma theory. The offspring of Peoria County Belwood establish that a claimant's allegation and proof obligations are not relaxed under the repetitive trauma theory. Additionally, this article proposes that petitioners generally be required to select and prove a theory of recovery — either a specific date, place, and cause of injury or a repetitive trauma theory — at the time of arbitration.

II.  Date of Accident

In Peoria County Belwood, the court considered whether the petitioner was barred from bringing her repetitive trauma claim by the three-year statute of limitations.⁷ In upholding the judgment for the claimant, the court determined that the applicable date of accident in a repetitive trauma claim is the date on which the injury "manifest[ed] itself."⁸ The injury "manifests itself," the court found, on the date when both the injury and its causal relationship to the claimant's employment became readily apparent to a reasonable person.⁹ This standard has been a source of great discussion in post-Peoria County Belwood appellate court decisions.

In Oscar Mayer & Co. v. Industrial Commission,¹⁰ the claimant for 15 years worked in various capacities for the employer. All of the petitioner's jobs required repetitive use of the arm, shoulder, and hand. The petitioner developed numbness, tingling, and burning sensations in his elbows and hands in 1981, and in his application for adjustment of claim he alleged the accidental injury date as May 12, 1983.

At the arbitration hearing, the petitioner requested leave to amend the date of the accident to May 11, 1983, the date upon which the petitioner was last exposed to repetitive trauma.¹¹ The arbitrator and Illinois Industrial Commission ("Industrial Commission") awarded benefits, but the circuit court reversed, finding that the petitioner failed to prove May 11, 1983 as the date of accident.¹²

The appellate court rejected the employer's argument that the date of accident should be defined as the date that the employee became aware of the physical condition and its clear relationship to his or her work duties.¹³ The court refused to define Peoria County Belwood's term "fact of the injury" as synonymous with "fact of discovery" of the injury.¹⁴

At the same time, however, the appellate court refused to permit employees to automatically establish as the date of accident the last day of work.¹⁵ The appellate court, in reversing the decision of the circuit court, emphasized the following: "We reiterate we are dealing with a repetitive-trauma injury. Nothing we say here should be interpreted as establishing an inflexible rule."¹⁶

The appellate court wrestled again with the date of accident issue in Three "D" Discount Store v. Industrial Commission.¹⁷ The arbitrator denied compensation, and the Industrial Commission reversed on the basis that the petitioner's injury manifested itself "approximately" on a certain date. The appellate court initially reversed the Industrial Commission's decision, holding that the petitioner failed to establish an identifiable date upon which the injury manifested itself. Upon petition for rehearing, however, the appellate court reconsidered its position and found in favor of the petitioner, stating as follows:

The Court recently stated in Oscar Mayer & Co. v. Industrial Comm'n...that we reject any interpretation of Peoria Belwood which would permit the employee to always establish the date of the accident in a repetitive trauma case by reference to the last day of work. We also there stated that "we reject [the] contention [that] the date of discovery of the condition and its relation to the employment necessarily fixes the date of accident." (citation omitted) An 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. Although our finding that the injury in this case "manifested itself" on July 10, rather than August 10, does not affect the Commission's ruling in petitioner's favor, we emphasize that the peculiar facts of each case must be closely analyzed in repetitive-trauma cases to be fair to the faithful employee and his employer as well as to the employer's compensation insurance carrier.¹⁸

The objective standard to be used in establishing the date of accident in repetitive trauma claims is not rigid. As noted by the appellate court in Oscar Mayer & Co., the last day of work is not always the date of accident. Similarly, the court held in General Electric Co. v. Industrial Commission²⁰ that the date identified by a physician as that upon which a causal connection arose between the injury and the work duty does not necessarily constitute the date of accident. While a physician's report or statement may be helpful in determining the date of accident, it is not necessarily determinative, the court said, noting that the standard is based on the observations of a reasonable person, not a reasonable physician. The court noted that

it was on June 25, 1985, that claimant noticed the "sharp pain" when she attempted to shove ballasts to her position. We agree with the circuit court that it was on that date [and not the later date identified by the physician] that the fact of the injury and causal connection would have become plainly apparent to a reasonable person.²¹

III.  Standard of Proof

The supreme court in Peoria County Belwood did emphasize that the proof requirements in a repetitive trauma claim are no less stringent that those for claims alleging a specific date, place, and cause of injury. After selecting an appropriate accident date, a petitioner must show that the injury is work-related and not the result of a normal degenerative aging process.²² This two-fold test requires that petitioners 1) produce medical opinions relating the pathology to work and 2) show that the risk of injury due to repetitive work is greater than the risk faced by the general public.²³

The first proof requirement in repetitive trauma cases was considered in Nunn v. Industrial Commission.²⁴ Before working for the defendant employer, the petitioner in Nunn had undergone two low back surgeries. While working for the respondent, the petitioner was required to repetitively lift objects weighing approximately 20 pounds. She began to complain of low back pain.²⁵ The question in Nunn was whether the disability was a continuation of a pre-existing problem or an aggravation of a pre-existing condition due to repetitive work duties. The appellate court stated the following:

The Commission is not precluded from finding against the claimant on the issue of causation of her disability where claimant and the employer choose not to offer medical opinions on the issue....Although medical testimony as to causation is not necessarily required...where the question is one within the knowledge of experts only and not within the common knowledge of laypersons, expert testimony is necessary to show that the claimant's work activities caused the condition complained of....Cases involving aggravation of a preexisting condition primarily concern medical questions and not legal questions....This is especially true in repetitive trauma cases.²⁶

The second element of proof required by Peoria County Belwood is that the injury does not result from a normal degenerative aging process.²⁸ This element derives from the requirement that the work present a risk greater than that to which the general public is exposed.²⁹ This proof requirement is strictly construed in repetitive trauma claims.

In Darling v. Industrial Commission,³⁰ the appellate court discussed the kind of quantitative proof necessary to show that the injury is work related. The petitioner did present a medical opinion establishing causal connection, but the employer argued that there was not enough proof that the work was truly repetitive. The trial court held that a description of the repetitive nature of the work activity was required as a matter of law.

The appellate court reversed, holding that specific quantitative proof is not always necessary.³¹ Significantly, however, the Darling court did state that quantitative proof will carry weight when the work duty complained of is a movement commonly made by the general public.³²

Such a movement was at issue in Pryor v. Industrial Commission.³³ The petitioner had a pre-existing back condition and the defendant argued that the repetitive duty required (bending over) was not a risk greater than the risk faced by the general public. The Industrial Commission focused on the quantitative nature of the repetitive work duties:

[T]he Commission could reasonably infer that petitioner could have herniated the disc by bending over to pick up a newspaper, bending over at the grocery store to pick up food, or bending over at the gas station to check his tires. The need to bend over, even repeatedly, is not unique to petitioner's work. It is not sufficient that the pain from a condition of ill-being might have been experienced at work. The act of bending over does not establish, as a matter of law, the existence of a risk greater than those faced outside of work.³⁴

IV.  Election of Theory

Peoria County Belwood effectively gave petitioners a choice between specific occurrence and repetitive trauma theories, raising the question of whether petitioners must elect one theory or may put forth each in the alternative. It is well established that pleadings can be amended to conform to the evidence in the record,³⁵ and the appellate court has allowed claimants to amend the date of accident in repetitive trauma claims before the Industrial Commission.³⁶ However, permitting a petitioner to change from a specific occurrence theory to a repetitive trauma theory after the close of evidence could prejudice the employer and warrants heightened scrutiny.

In Caterpillar Tractor Co. v. Industrial Commission,³⁷ the petitioner alleged a specific occurrence injury to his right shoulder on May 2, 1980. The arbitrator denied benefits, but on review the Industrial Commission found that the injury arose out of and in the course of the petitioner's employment pursuant to a repetitive trauma theory. The issue discussed by the appellate court was whether the Industrial Commission can consider a new theory of recovery on review sua sponte (the petitioner did not amend his application for adjustment of claim to allege repetitive trauma).³⁸

The appellate court noted that pleadings in workers' compensation cases are informal and designed merely to expedite the process and to achieve a correct result. However, the court also observed that a party's substantial rights must not be prejudiced when the Industrial Commission pleading requirements are relaxed.³⁹

The court allowed the Industrial Commission to consider the repetitive theory sua sponte, but only after the court had concluded that the employer's rights were not prejudiced by depriving it of the opportunity to defend its position under the new theory. One physician's medical notes observed that the petitioner's repetitive overhead work movements aggravated a pre-existing condition.⁴⁰ The appellate court held that the respondent was not prejudiced by a new theory sua sponte by the Industrial Commission where it had knowledge of this potential theory and failed to present opposing evidence.⁴¹

Thus, the only appellate court decision on the election issue has decided that the theory put forth on the application for adjustment of claim is not necessarily binding.⁴² However, where a petitioner does elect to change theories on review, the respondent's rights must be considered. If there was no indication in the record that a repetitive trauma theory may be advanced, then a respondent has no information or notice of the theory and a change should not be allowed. If a petitioner changes its case theory to repetitive trauma at the time of arbitration and does present evidence of repetitive trauma, fairness requires that the respondent be allowed to present counter-evidence.⁴³

V.  Conclusion

Repetitive trauma theory in workers' compensation cases is only beginning to develop, and we can expect new issues to arise and existing ones to be refined. Nonetheless, some basic guidelines apply. An employee advancing a repetitive trauma theory must meet the same standard of proof as claimants alleging a specific occurrence. An objective standard governs whether the petitioner alleged the correct accident date. Further, the petitioner must satisfy the two-fold proof requirement by showing that the injury is work related and not the result of a normal degenerative aging process.

To establish that the injury is work related, the petitioner must present specific medical opinion evidence establishing causal connection. Petitioners must also provide expert medical opinion evidence showing that their condition is not a result of a normal degenerative work process. If the repetitive work movements appear to be shared by the general public, the petitioner must present specific quantitative evidence separating the petitioner's work movements from those shared by the general public.

Finally, a petitioner must select a theory of recovery and should be precluded from changing a specific occurrence theory to the repetitive trauma theory when doing so would deprive the respondent of the ability to present contradictory evidence on the repetitive trauma claim.

Endnotes

^1. 115 Ill 2d 524, 505 NE2d 1026 (1987).
^2. Id, 505 NE2d at 1028.
^3. See e.g., Perkins Products Co. v. Industrial Commission, 379 Ill 115, 39 NE2d 372 (1942); Quaker Oats Co. v. Industrial Commission, 414 Ill 326, 111 NE2d 351 (1953). However, as pointed out by Justice Moran in his concurring opinion in Peoria County Belwood, the Illinois Supreme Court in Johnson v. Industrial Commission, 89 Ill 2d 438, 433 NE2d 649 (1982) had recognized the compensability of a repetitive trauma claim under the workers' compensation act where there is sufficient evidence of causation in the record. In Johnson, the repetitive trauma theory was advanced and recognized by the supreme court. However, the court in Johnson affirmed the denial of workers' compensation benefits because there was no evidence that the petitioner's work duties caused her carpal tunnel syndrome. Id, 433 NE2d at 651.
^4. See e.g., Zerwal v. Caribbean Modes, Inc., 170 So2d 840 (Fla 1965); American Maize Products v. Nichiporchik, 108 Ind App 502, 29 NE2d 801 (1940); Sansom v. Workers' Compensation Commission, 346 SE2d 63 (W Va 1966); Consolidated Gas Utility Corp. v. Jetter, 205 Okla 471, 238 P2d 804 (1951); Employers Mutual Liability Insurance Company of Wisconsin v. Industrial Commission, 24 Ariz App 427, 539 P2d 541 (1975); Smith v. Lawrence Baking Co., 370 Mich 169, 121 NW2d 684 (1963); Stein v. Schneider, 34 AD2d 1062, 312 NYS2d 95 (1970).
^5. Peoria County Belwood, 505 NE2d at 1029.
^6. Id, 505 NE2d at 1028.
^7. Id, 505 NE2d at 1027, citing Ill Rev Stat ch 48, ¶ 138.6(d) (1985).
^8. Peoria County Belwood, 505 NE2d at 1029; see also, Arthur Larson, lB Workers' Compensation § 39.50 (Matthew Bender 1991 Supp).
^9. Peoria County Belwood, 505 NE2d at 1029.
^10. 176 Ill App 3d 607, 531 NE2d 174 (4th D 1988).
^11. Id, 531 NE2d at 175.
^12. Id.
^13. Id, 531 NE2d at 176.
^14. Id, 531 NE2d at 177.
^15. Id. See also Castaneda v. Industrial Commission, 231 Ill App 3d 734, 596 NE2d 1281 (3d D 1992). The petitioner identified her date of injury as June 19, 1987, her last day of work (the claim was filed on September 26, 1988). The appellate court affirmed an Industrial Commission decision holding that the injury had manifested itself more than three years before the date that the claimant last worked. Thus, the claim did not satisfy the three-year statute of limitations and was dismissed.
^16. Oscar Mayer, 531 NE2d at 177.
^17. 198 Ill App 3d 43, 556 NE2d 261 (4th D 1989).
^18. Id, 556 NE2d at 265.
^19. Id, 556 NE2d at 264.
^20. 190 Ill App 3d 847, 546 NE2d 987 (4th D 1989).
^21. Id, 546 NE2d at 993.
^22. Peoria County Belwood, 505 NE2d at 1028.
^23. Pryor v. Industrial Commission, 201 Ill App 3d 1, 558 NE2d 788 (5th D 1990).
^24. 157 Ill App 3d 470, 510 NE2d 502 (4th D 1987).
^25. Id, 510 NE2d at 504.
^26. Id, 510 NE2d at 506.
^27. Id, 510 NE2d at 506-507. See also Majercin v. Industrial Commission, 167 Ill App 3d 894, 522 NE2d 263 (3d D 1988). The petitioner's job required considerable climbing of stairs and towers, along with kneeling on concrete or gravel in tight places. No treating physician expressed an opinion establishing causal connection between the petitioner's knee pathologies and his work duties, and the petitioner did not offer a causal connection opinion from an evaluating physician. The Industrial Commission denied compensability, noting that none of the physicians expressed a causal connection opinion. The appellate court affirmed the Industrial Commission's denial.
^28. Peoria County Belwood, 505 NE2d at 1028.
^29. Caterpillar Tractor Co. v. Industrial Commission, 92 Ill 2d 30, 440 NE2d 861,864 (1982).
^30. 176 Ill App 3d 186, 530 NE2d 1135 (lst D 1988).
^31. Id, 530 NE2d at 1142.
^32. Id, 530 NE2d at 1142.
^33. 201 Ill App 3d 1,558 NE2d 788 (5th D 1990).
^34. Id, 558 NE2d at 791; see also Downs v. Industrial Commission, 143 Ill App 3d 383, 493 NE2d 595 (5th D 1986). The appellate court held that the Industrial Commission did not err in finding that the petitioner's degenerative disc disorder was not an "occupational disease" within the meaning of the Workers' Occupational Diseases Act (Ill Rev Stat ch 48, ¶ 172.36 et seq (1983)) where there was conflicting opinion testimony and where the petitioner was not exposed to any greater risk than the general public. The petitioner's work duties were general bending and lifting, which are required in many occupations and are movements commonly made by the general public. Id, 493 NE2d at 600.
^35. See McLean Trucking Co. v. Industrial Commission, 96 Ill 2d 213, 449 NE2d 832 (1983).
^36. See Reliance Elevator Co. v. Industrial Commission, 171 Ill App 3d 18, 524 NE2d 1022 (lst D 1988). While working for a former employer, the petitioner fell off a table and injured his back. The treating physician testified that he fully recovered from the lumbar disc protrusion. Thereafter, the petitioner began working for Reliance Elevator Co. and was required to repetitively move 100 pound cast iron pots. The treating physicians related the petitioner's herniated disc to repetitive lifting while at work.
    The respondent first argued that there was no evidence suggesting that the petitioner's job required repetitive and heavy lifting. The supervisor of the petitioner testified that workers were required to use cranes to lift weights of more than 25 pounds, but this argument was rejected by the appellate court. The respondent next argued that any normal activity could or might have caused the herniated disc. The respondent was relying upon general comments of two treating physicians made in depositions that the disc could herniate by any normal activity.
    While the appellate court did acknowledge that a disability is not compensable where normal activity can aggravate a pre-existing condition (Roberts v. Industrial Commission, 93 Ill 2d 532, 445 NE2d 316 (1983)), the appellate court would not disturb the finding of the Industrial Commission in concluding that there was a much greater chance of injury from heavy lifting than from some unknown, spontaneous factor. Reliance, 524 NE2d at 1027.
^37. 215 Ill App 3d 229, 574 NE2d 1198 (4th D 1991).
^38. Id, 574 NE2d at 1203.
^39. Id, 574 NE2d at 1204.
^40. Id, 574 NE2d at 1204-05.
^41. Id, 574 NE2d at 1205.
^42. Id, 574 NE2d at 1204.
^43. Three "D" Discount Store, 198 Ill App 3d 43, 556 NE2d 261 (4th D 1989). The appellate court, when discussing the issue of date of accident, did suggest that fairness to the employee and employer as well as employer's insurance carrier must be considered:

Although our finding that the injury in this case "manifested itself" on July 10, rather than on August 10, does not affect the Commission's ruling in the petitioner's favor, we emphasize that the peculiar facts of each case must be closely analyzed in repetitive-trauma cases to be fair to the faithful employee and his employer as well as to the employer's compensation insurance carrier.