Joseph P. Basile, Chicago
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Fourth District Appellate Court Finds Repetitive Work Resulting Solely in Pain from Preexisting Non-Work-Related Condition Compensable Under Workers’ Compensation Act
In a case of first impression, the court found a claimant’s pain resulting from repetitive work activity was compensable in Tazewell County v. Illinois Workers’ Compensation Commission, 2025 IL App (4th) 230754WC. The claimant was a full-time dental hygienist for the respondent’s health department. She claimed a repetitive trauma accident of June 24, 2019. 2025 IL App (4th) 230754WC at ¶3. She worked for the respondent from 2005 until 2019. 2025 IL App (4th) 230754WC at ¶6. She would see 12 to 14 patients a day and up to 18 patients on busy days. Id. Appointments were scheduled for 30 to 45 minutes without a break between patients unless there was a cancellation. During a 30-minute appointment, the claimant’s left arm would be in an elevated position for 15 minutes. Id.
The claimant cleaned teeth and operated the dental tools with her right hand. She used her left hand to handle the mirror and stabilize the patient’s head. The arbitrator observed the claimant demonstrate and “stated that the claimant’s elbow appeared to be bent at a 90-degree angle and her wrist was slightly flexed.” 2025 IL App (4th) 230754WC at ¶5.
The claimant noticed problems with her left shoulder in January 2019. 2025 IL App (4th) 230754WC at ¶7. She had pain with her arm elevated and it progressed. At first, her shoulder felt tired at the end of the day, but the symptoms increased into “full-blown pain” that affected her sleep. Id. She worked Monday through Thursday. By Sunday her shoulder felt good; however, the pain returned by Tuesday. She sent an email to her supervisor on April 9, 2019, advising that she needed a cortisone shot. Id.
The claimant came under the care of Dr. Jill Wirth-Rissman on April 11, 2019, for left shoulder pain that started in February 2019. 2025 IL App (4th) 230754WC at ¶8. Dr. Wirth-Rissman diagnosed acute pain with left rotator cuff tendinosis and administered a corticosteroid injection. After a second injection in May 2019, Dr. Wirth-Rissman ordered an MRI, which revealed multiple findings including severe rotator cuff tendinosis, impingement, a small supraspinatus tendon tear, and acromioclavicular joint arthritis. 2025 IL App (4th) 230754WC at ¶9. An injection was administered in June 2019, and the patient was referred to Dr. Michael Merkley, an orthopedic surgeon. Id.
The claimant saw Dr. Merkley on June 24, 2019. She provided a history of “injury/pain” beginning in February 2019. 2025 IL App (4th) 230754WC at ¶10. She did not indicate where and how it occurred. She further indicated there was no workers’ compensation dispute. Dr. Merkley diagnosed left shoulder pain, partial-thickness rotator cuff tear, ACL arthrosis, bursitis, and biceps tenosynovitis. He recommended surgery and restricted any repetitive use of the left arm with a ten-pound lifting limitation. 2025 IL App (4th) 230754WC at ¶11.
The surgery was performed on August 6, 2019. 2025 IL App (4th) 230754WC at ¶12. The claimant continued to treat with Dr. Merkley following the surgery and had physical therapy. She was ultimately released to work with no restrictions on April 1, 2020. Id.
Dr. Merkley prepared a report for the claimant’s attorney in October 2020. 2025 IL App (4th) 230754WC at ¶13. In it, he described the claimant’s duties using her left arm and that her left shoulder became painful over time. Dr. Merkley did not believe her duties caused the rotator cuff tear, but he did state her repetitive work activities “were a contributory cause of pain at her left shoulder.” Id. He wrote that repetitive activities at shoulder level or waist level can increase the pain in a patient who has preexisting rotator cuff pathology. He provided a further opinion because of the repetitive nature of the activities performed with the left shoulder. It was “reasonable to assume,” he opined, based on the claimant’s history, that there was a causal relationship between her work and “the pain at her left shoulder.” Id.
Dr. Lawrence Li examined the claimant at the respondent’s request. He also reviewed medical records, a job description, and diagnostic films of the claimant’s treatment. His opinion was that the job duties did not cause, aggravate, or accelerate the rotator cuff tear, impingement syndrome, and ACL joint arthritis. He observed that, based on the job description, the claimant’s hands and elbows were always below her shoulder. He also noted that a hygienist could not exert significant force inside an awake patient’s mouth because that would be painful. He concluded that shoulder pain could manifest during the job duties as a result of a rotator cuff tear; however, this would be a temporary aggravation or manifestation of symptoms.
The claimant’s supervisor, a dentist, testified the claimant’s demonstration of how she performed her duties was “a little inaccurate.” 2025 IL App (4th) 230754WC at ¶16. She testified that a hygienist’s elbows should be bent at a 90-degree angle, and the arms should be below shoulder level. Id.
The arbitrator found the claimant failed to prove she sustained an accidental injury. The Commission reversed the decision, relying particularly on Dr. Merkley’s treatment and opinions. “While the tear was pre-existing, the evidence establishes that [the claimant’s] work duties aggravated her condition, which ultimately necessitated the [need for surgery] she eventually received. Therefore, the Commission finds that [the claimant] established that her condition is causally related to her work duties.” 2025 IL App (4th) 230754WC at ¶18.
The issue on appeal was “whether repetitive work activity that results solely in pain from a preexisting non-work-related condition is compensable . . . in the absence of a concomitant worsening of the underlying condition.” 2025 IL App (4th) 230754WC at ¶27. The court’s standard of review was the manifest weight of the evidence. As this was a case of first impression, the court analyzed precedent from other jurisdictions, finding there was a split on the issue.
The court analyzed the issues of accident and causation together. After summarizing cases from other jurisdictions, the court held: “We believe that, when a preexisting condition is asymptomatic and then becomes painful as the result of work-related activity, that symptomatic condition is compensable under the Act as an aggravation of a preexisting condition even in the absence of an organic or structural change in the preexisting condition.” 2025 IL App (4th) 230754WC at ¶31.
There was no dispute that the claimant’s preexisting conditions were not caused by her work duties. The only evidence was that she suffered pain from repetitive work activity. The Commission found the claimant sustained a repetitive trauma injury arising out of and in the course of her employment. Based on the holding, the court concluded the Commission’s decision was not against the manifest weight of the evidence.
The court further found the Commission’s reliance on Dr. Merkley’s opinions that the repetitive activities were a contributing cause of the pain in the claimant’s left shoulder satisfied the claimant’s burden of proving a causal relationship to her employment. The court found no basis to conclude that an opposite conclusion was apparent. Thus, the Commission’s determination on causation was not against the manifest weight of the evidence.
Justice Mullen dissented and did not believe that, in this case, pain alone was sufficient. The dissent notes the majority acknowledged that the issue of whether the preexisting condition was aggravated by the work duties was outside the knowledge of lay persons. As such, medical evidence was required to establish causation and the aggravation or acceleration of the preexisting condition. Justice Mullen did not find that the claimant presented any medical evidence that the repetitive activities accelerated or aggravated the preexisting condition, noting that Dr. Merkley never said the work activities aggravated or accelerated the preexisting condition in the claimant’s left shoulder.
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I have had the privilege of writing the Workers’ Compensation FLASHPOINTS since 2000 and it is time for a change. Going forward, Kisa Sthankiya and Jigar Desai, my partners when I was at Rusin & Maciorowski, will provide workers' compensation articles after this edition. I am grateful to everyone at IICLE and the FLASHPOINTS subscribers for their support and help. Please consider volunteering to write for IICLE so that it continues to provide excellent continuing legal education. Thank you. — Joseph P. Basile
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