February, 2025 -
The Appellate Court has ruled on the employer’s Petition for Rehearing and Application for Certification on Leave to Appeal to the Supreme Court. The Court denied the Petition and also denied the request for the Court to certify the importance of the question posed by this case, asserting that the case does not “involve a substantial question which warrants consideration by the Supreme Court.” The Court reached this finding in spite of acknowledging in their decision that this was an “issue of first impression,” after reviewing case law from fifteen states other than Illinois, and notwithstanding the dissent written by Justice Mullen.
IFMK will be monitoring the Commission to determine exactly how they will decide to interpret and apply this case, and we will be sure to share any and all further updates here.
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IFMK Law is currently involved in a case, Tazewell Cnty. v. Illinois Workers' Comp. Comm'n, 2025 IL App (4th) 230754WC, in which the Petitioner was a dental hygienist who sought treatment for her left shoulder condition. In her initial intake paperwork, the Petitioner chose not write anything in a space on the form to indicate where and how the injury occurred. She also indicated that there was no workers’ compensation dispute and that she did not file or plan to file a lawsuit or workers’ compensation claim related to the condition.
The petitioner went on to undergo shoulder surgery and had a routine recovery from same. The petitioner was terminated after her FMLA time was exhausted and then brought an alleged repetitive trauma claim after her termination. She testified that she did not feel as much loyalty to the County after no longer being employed there, so she decided to bring the claim then.
Dr. Merkley, the Petitioner’s surgeon, wrote in his narrative report that, “While I do not feel that the nature of her duties is the causation of her rotator cuff tear, repetitive activities at shoulder level or even waist level can result in increased pain [emphasis added] in patients who have pre-existing rotator cuff pathology.” Dr. Merkley made it clear that the Petitioner had an injury that was not caused at work but that the petitioner felt increased pain when trying to work, given that she had that pre-existing injury.
The employer obtained an IME and the IME doctor, Dr. Li, also stated that he found the Petitioner’s shoulder injury to be pre-existing and not caused by her work duties. At trial, Respondent also presented testimony from the dentist supervising the Petitioner, and Respondent’s witness testified that the Petitioner’s exaggerated and mischaracterized her description of her work duties, particularly the posture she used to perform those duties.
The Arbitrator found that Petitioner failed to prove that she suffered an accident that arose out of and in the course of her employment and that the work duties were the medical cause of her shoulder condition. The Arbitrator emphasized the fact that Petitioner never originally claimed any relationship between her shoulder injuries and her job duties when she began treating or even through the time of surgery. The Arbitrator also noted that she filed her Application for Adjustment of claim three weeks after reaching MMI and that the treating medical records did not support a finding of any connection between her job duties and her shoulder condition.
The Petitioner sought a review to the Commission, who reversed the Arbitrator and found for Petitioner on both issues of accident and medical causal connection. The Commission found that, while the Petitioner’s pre-existing rotator cuff tear was not caused by her work duties, Petitioner had her shoulder condition while working and suffered increased pain while she was at work, and therefore the claim was compensable.
Respondent then appealed to the Circuit Court, which affirmed the Commission Decision, and then appealed to the Appellate Court. The Appellate Court ruled in favor of the Petitioner, finding that the subjective experience of increased pain was sufficient to allow a Petitioner to turn an injury that is not work-related into a work-related injury simly due to experiencing pain at work. The Court wrote:
If the aggravation is work-related, such as repetitive trauma, and solely causes pain, we hold that the pain suffered is, in and of itself, a compensable aggravation of the preexisting condition. In the instant case, it is undisputed that the Petitioner suffered from a pre-existing left shoulder rotator cuff tear, impingement syndrome, and acromioclavicular joint arthritis that was not caused by her work duties. There is no evidence that the Petitioner’s work activities caused any organic or structural change to her pre-existing conditions. The only evidence in the record is that the Petitioner suffered left shoulder pain as the result of repetitive work activity.
The Court failed to address the Respondent’s arguments that the Petitioner’s job duties did not constitute repetitive trauma and arguments that she failed to prove that the repetitive work activity posed a greater risk of injury to her than to the general public and failed to address whether the evidence established that claimant performed a wide variety of different work tasks rather than a single repetitive physical activity.
Justice Mullen dissented, stating:
Under these circumstances, pain alone is not enough and I would conclude that the Commission’s findings are against the manifest weight of the evidence… Neither Dr. Merkley nor Dr. Li determined that Petitioner’s repetitive work activities accelerated the degeneration of her left shoulder, increased the size of the rotator cuff tear of Petitioner’s left shoulder, or otherwise aggravated the condition of Petitioner’s left shoulder. Dr. Merkley opined that Petitioner’s repetitive work activities “were a contributory cause of pain at her left shoulder…” Significantly, however, Dr. Merkley never said that Petitioner’s repetitive work activities aggravated or accelerated the preexisting condition of ill-being of Petitioner’s left shoulder. In the absence of medical evidence supporting a finding of a causal connection between Petitioner’s condition of ill-being and her repetitive work activities, the Commission’s findings as to accident and causation rested on mere speculation… While an employer takes the employee as it finds him or her (Baggett v. Industrial Comm’n, 201 Ill. 2d 187, 199 (2002)), there is no recovery where the employee’s condition of ill-being is merely the result of a normal degenerative process of a preexisting condition.
While it remains to be seen exactly how the Commission will interpret and apply this case, the case seems to suggest that subjective pain alone, while working with an injury that is otherwise not work-related, is enough to turn a non-work injury into a work injury. This case is ongoing and IFMK is pursuing all available remedies at the direction of our client.