                                Illinois Official Reports

                                       Appellate Court



                   PPG Industries v. Illinois Workers’ Compensation Comm’n,
                                2014 IL App (4th) 130698WC



Appellate Court           PPG INDUSTRIES, Appellee, v. THE ILLINOIS WORKERS’
Caption                   COMPENSATION COMMISSION et al. (Carrie Bond, Appellant).

District & No.            Fourth District
                          Docket No. 4-13-0698WC

Filed                     September 30, 2014
Rehearing denied          November 18, 2014


Held                       In an appeal from the award of medical expenses and permanent
(Note: This syllabus partial disability under the Workers’ Compensation Act for claimant’s
constitutes no part of the repetitive-trauma injuries to her left shoulder while working in a glass
opinion of the court but factory for nearly 38 years, the appellate court, in answer to a question
has been prepared by the certified by the trial court pursuant to Supreme Court Rule 308 as to
Reporter of Decisions whether section 6(d) of the Act, which sets a three-year statute of
for the convenience of limitations for filing workers’ compensation claims, bars the
the reader.)               presentation of evidence of work activities that took place more than
                           three years prior to the date of accident, or manifestation date, of a
                           repetitive-trauma injury, responded in the negative, since section 6(d)
                           does not contain any evidentiary limitations but rather sets forth the
                           time frames in which claimant’s application for benefits must be filed;
                           therefore, pursuant to De Bouse and in the interest of judicial
                           economy, the appellate court vacated the trial court’s judgment and
                           remanded the cause for further proceedings consistent with its answer
                           to the certified question.


Decision Under            Appeal from the Circuit Court of Macon County, No. 12-MR-845; the
Review                    Hon. Albert G. Webber, Judge, presiding.

Judgment                  Certified question answered; circuit court judgment vacated; cause
                          remanded.
     Counsel on               Timothy M. Shay (argued) and Katherine E. Wood, both of Shay &
     Appeal                   Associates, of Decatur, for appellant.

                              Robert E. Maciorowski (argued), of Maciorowski, Sackmann &
                              Ulrich, LLP, of Chicago, for appellee.




     Panel                    JUSTICE HARRIS delivered the judgment of the court, with opinion.
                              Presiding Justice Holdridge and Justices Hoffman, Hudson, and
                              Stewart concurred in the judgment and opinion.


                                                OPINION

¶1         On April 28, 2010, claimant, Carrie Bond, filed an application for adjustment of claim
       pursuant to the Workers’ Compensation Act (Act) (820 ILCS 305/1 to 30 (West 2008)),
       seeking benefits from the employer, PPG Industries. Following a hearing, the arbitrator
       determined claimant sustained repetitive-trauma injuries to her left shoulder that arose out of
       and in the course of her employment on March 22, 2010. She awarded claimant $3,777 in
       medical expenses and permanent partial disability (PPD) benefits pursuant to section 8(e) of
       the Act (820 ILCS 305/8(e) (West 2008)) for a 7.5% loss of use of claimant’s left arm. The
       arbitrator also considered and rejected a statute of limitations argument raised by the employer
       at arbitration. She concluded the three-year limitations period set forth in section 6(d) of the
       Act (820 ILCS 305/6(d) (West 2008)) barred neither claimant’s repetitive-trauma claim nor
       the presentation of evidence of claimant’s work activities in excess of three years before the
       alleged manifestation date of her injury.
¶2         On review, the Illinois Workers’ Compensation Commission (Commission) made various
       minor corrections to the arbitrator’s decision and converted the arbitrator’s PPD award to an
       award under section 8(d)(2) of the Act (820 ILCS 305/8(d)(2) (West 2008)), finding claimant
       was entitled to compensation of 3.8% for the loss of use of the person as a whole. The
       Commission otherwise affirmed and adopted the arbitrator’s decision. On judicial review, the
       circuit court of Macon County was persuaded by the employer’s statute-of-limitations
       argument. The court “remanded the case to the Commission for reconsideration with the
       direction to not consider evidence of the injury occurring prior to April 28, 2007, the date three
       years prior to the filing of [claimant’s] application for adjustment.”
¶3         Additionally, the circuit court entered an order granting a motion by claimant for
       certification pursuant to Illinois Supreme Court Rule 308 (eff. Feb. 26, 2010). It certified the
       following question for an interlocutory appeal:
                    “Does section 6(d) of the *** Act, which sets forth a three[-]year statute of
               limitations for the filing of worker’s [sic] compensation claims, act as a bar to the
               presentation of evidence of work activities that took place more than three years prior
               to the date of accident, or manifestation date, of a repetitive[-]trauma injury?”


                                                   -2-
¶4         This court granted claimant’s application for leave to appeal pursuant to Illinois Supreme
       Court Rule 308 (eff. Feb. 26, 2010). We answer the certified question in the negative, vacate
       the circuit court’s judgment, and remand for further proceedings consistent with this opinion.

¶5                                           I. BACKGROUND
¶6         At arbitration, claimant testified she worked for the employer, a glass factory, for nearly 38
       years. She began working for the employer in 1974 and, except for an approximately
       three-year period between 1979 and 1982 when the employer was closed, claimant continued
       to work for the employer through the February 2012 arbitration date. She described her work
       for the employer over those years. Claimant’s testimony included descriptions of her various
       positions and job duties, as well as the extent to which she utilized her left upper extremity
       when working. Claimant stated in March 2010, her left shoulder began “popping quite a bit”
       and was sore. Thereafter, claimant began seeking medical treatment for her left shoulder.
       Claimant submitted her medical records into evidence.
¶7         The employer presented two witnesses who testified regarding the physical demands of
       some of the positions claimant held while working for the employer, including lifting
       requirements. It also submitted physical-demand checklists with respect to those positions, as
       well as the evidence deposition and reports of its evaluating physician, Dr. Prasant Alturi.
¶8         Additionally, the employer objected to claimant’s testimony describing her nearly 38-year
       work history. It argued that only claimant’s work activities in the three years prior to “the date
       of her alleged repetitive trauma” were relevant. Additionally, it asserted the Act’s three-year
       limitations period prohibited consideration of “anything that occur[red] three years prior to the
       [accident or manifestation] date alleged.” The arbitrator overruled the employer’s objections,
       stating claimant’s work history for the employer was relevant and it remained to be seen what
       weight would be placed on such evidence. However, at the employer’s request, she allowed the
       request for hearing to be amended to include a statute-of-limitations issue.
¶9         On April 2, 2012, the arbitrator issued her decision in the matter, finding claimant
       sustained a repetitive-trauma injury to her left shoulder which manifested itself on March 22,
       2010, and was causally related to her work for the employer. The arbitrator relied on claimant’s
       testimony regarding her job duties and found “she credibly testified to the development of a
       painful left shoulder over time.” The arbitrator noted that, after experiencing a painful
       “popping” in her left shoulder, claimant sought medical treatment and attributed her problems
       to her work.
¶ 10       The arbitrator also found claimant’s application for adjustment of claim had been timely
       filed and her claim for benefits was not barred by the Act’s three-year statute of limitations.
       Relying on various repetitive-trauma cases, she concluded that “the past work history of an
       employee should be considered” and was not confined, as suggested by the employer, to the
       three-year period preceding the alleged manifestation date. The arbitrator noted
       repetitive-trauma injuries may take years to develop and “[a]s such, it is imperative that an
       employee *** be allowed to explain and present evidence of the job duties performed over the
       course of her employment which she believes were causative of her condition of ill-being at the
       time the injury manifests itself.” The arbitrator awarded claimant benefits as stated.
¶ 11       On October 24, 2012, the Commission issued its decision and, as discussed, modified and
       corrected portions of the arbitrator’s decision. It otherwise affirmed and adopted the


                                                   -3-
       arbitrator’s decision, which, relevant to this appeal, included the arbitrator’s findings with
       respect to the statute-of-limitations issue raised by the employer.
¶ 12       On April 17, 2013, the circuit court of Macon County issued its decision. The court found
       the statute-of-limitations issue was “a matter of first impression for Illinois courts” and agreed
       with the employer’s position. It ordered the case “remanded to the Commission for
       reconsideration with the direction to not consider evidence of injury occurring prior to April
       28, 2007, the date three years prior to the filing of [claimant’s] application for adjustment.” On
       August 9, 2013, the court entered an order granting claimant’s motion for certification
       pursuant to Illinois Supreme Court Rule 308 (eff. Feb. 26, 2010), noting it “interpreted [section
       6(d) of the Act] to include an evidentiary limitation” and certifying the following question for
       review before this court:
                   “Does section 6(d) of the *** Act, which sets forth a three[-]year statute of
               limitations for the filing of worker’s [sic] compensation claims, act as a bar to the
               presentation of evidence of work activities that took place more than three years prior
               to the date of accident, or manifestation date, of a repetitive[-]trauma injury?”
       As stated, we granted claimant’s application for leave to appeal pursuant to Rule 308.

¶ 13                                            II. ANALYSIS
¶ 14       The issue presented by this appeal concerns a matter of statutory interpretation. In
       particular, whether section 6(d) of the Act (820 ILCS 305/6(d) (West 2008)) limits the
       evidence a claimant may present regarding his or her work activities to only those activities
       occurring within the three years prior to the filing of the claimant’s application for adjustment
       of claim or manifestation date of his or her repetitive-trauma injury.
¶ 15       “The cardinal rule of statutory construction is to ascertain and give effect to the intent of
       the legislature.” Curtis v. Illinois Workers’ Compensation Comm’n, 2013 IL App (1st)
       120976WC, ¶ 13, 987 N.E.2d 407. “The best indicator of the legislature’s intent is the
       language of the statute itself, which must be given its plain and ordinary meaning.”
       Curtis, 2013 IL App (1st) 120976WC, ¶ 13, 987 N.E.2d 407. Statutory construction issues are
       subject to de novo review. Curtis, 2013 IL App (1st) 120976WC, ¶ 13, 987 N.E.2d 407.
¶ 16       Section 6(d) of the Act (820 ILCS 305/6(d) (West 2008)) sets forth limitations periods for
       the filing of workers’ compensation claims and, relevant to this appeal, bars the filing of an
       application for adjustment of claim “unless the application for compensation is filed with the
       Commission within 3 years after the date of accident.” That section provides as follows:
                    “In any case, other than one where the injury was caused by exposure to
                radiological materials or equipment or asbestos unless the application for
                compensation is filed with the Commission within 3 years after the date of the accident,
                where no compensation has been paid, or within 2 years after the date of the last
                payment of compensation, where any has been paid, whichever shall be later, the right
                to file such application shall be barred.
                    In any case of injury caused by exposure to radiological materials or equipment or
                asbestos, unless application for compensation is filed with the Commission within 25
                years after the last day that the employee was employed in an environment of
                hazardous radiological activity or asbestos, the right to file such application shall be
                barred.” 820 ILCS 305/6(d) (West 2008).

                                                   -4-
¶ 17       “[T]he date of an accidental injury in a repetitive-trauma compensation case is the date on
       which the injury ‘manifests itself.’ ” Peoria County Belwood Nursing Home v. Industrial
       Comm’n, 115 Ill. 2d 524, 531, 505 N.E.2d 1026, 1029 (1987). “ ‘Manifests itself’ means the
       date on which both the fact of the injury and the causal relationship of the injury to the
       claimant’s employment would have become plainly apparent to a reasonable person.” Peoria
       County, 115 Ill. 2d at 531, 505 N.E.2d at 1029.
¶ 18       Here, claimant alleged a repetitive-trauma injury to her left shoulder, which she asserted
       developed gradually over time as she utilized her left upper extremity when performing her
       work duties. As the employer points out, section 6(d) contains no exception for
       repetitive-trauma claims and, like claims involving a single definable accident,
       repetitive-trauma claims must be brought within three years after the claimant’s manifestation
       date. Claimant alleged her repetitive-trauma injury manifested on March 22, 2010. The
       employer does not appear to dispute that date and, in fact, asserts in its brief that claimant “did
       not establish any manifestation of a left shoulder injury until March 22, 20[10].” Claimant filed
       her application for adjustment of claim on April 28, 2010, just over one month after her alleged
       manifestation date and, thus, well within section 6(d)’s three-year limitations period. Her claim
       for a repetitive-trauma injury to her left shoulder was timely filed.
¶ 19       Additionally, looking to the plain and ordinary language of section 6(d), we find no
       evidentiary limitation. Section 6(d) provides limits with respect to the filing of a claim for
       benefits, not what evidence may be presented to support any particular claim. A
       repetitive-trauma injury is one which “has been shown to be caused by the performance of the
       claimant’s job and has developed gradually over a period of time, without requiring complete
       dysfunction.” Peoria County, 115 Ill. 2d at 529, 505 N.E.2d at 1028; see also Oscar Mayer &
       Co. v. Industrial Comm’n, 176 Ill. App. 3d 607, 611, 531 N.E.2d 174, 176 (1988) (“By their
       very nature, repetitive-trauma injuries may take years to develop to a point of severity
       precluding the employee from performing in the workplace.”). It stands to reason that a
       claimant’s work history may be necessary and relevant to determining whether she sustained
       such a work-related, gradual injury. As noted by the arbitrator and the Commission, case law
       establishes that a claimant’s work history has been routinely considered in repetitive-trauma
       cases, including work history that extended beyond three years prior to an alleged
       manifestation date. See Kishwaukee Community Hospital v. Industrial Comm’n, 356 Ill. App.
       3d 915, 917-18, 828 N.E.2d 283, 287 (2005) (over 30 years); Oscar Mayer, 176 Ill. App. 3d at
       608, 531 N.E.2d at 174-75 (15 years); City of Springfield, Illinois v. Illinois Workers’
       Compensation Comm’n, 388 Ill. App. 3d 297, 300-01, 901 N.E.2d 1066, 1069-70 (2009)
       (approximately 8 years); Peoria County, 115 Ill. 2d at 527, 505 N.E.2d at 1027 (6 years).
¶ 20       The real issue presented by the employer’s challenge to claimant’s testimony is whether
       evidence of her entire work history for the employer was relevant to her claim and admissible
       into evidence. This is an evidentiary issue that was for the Commission to resolve and was not
       governed by the Act’s statute of limitations. We note “[t]he rules of evidence apply to all
       proceedings before the Commission or an arbitrator, except to the extent they conflict with the
       Act.” Greaney v. Industrial Comm’n, 358 Ill. App. 3d 1002, 1010, 832 N.E.2d 331, 340
       (2005). Further, “[e]videntiary rulings made during the course of a workers’ compensation
       proceeding will be upheld on review absent an abuse of discretion.” Greaney, 358 Ill. App. 3d
       at 1010, 832 N.E.2d at 340. Similarly, upon its admission, the appropriate weight to be given
       such evidence was within the province of the Commission. Roberson v. Industrial Comm’n,


                                                    -5-
       225 Ill. 2d 159, 173, 866 N.E.2d 191, 199 (2007) (“The Commission must weigh the evidence
       presented at the arbitration hearing and determine where the preponderance of that evidence
       lies.”).
¶ 21       Under the circumstances of this appeal, neither the Commission’s evidentiary rulings nor
       its weighing of the evidence is properly before this court. As a result, we do not address those
       issues on review. Instead, we find section 6(d) of the Act was not the proper basis to support
       the employer’s objection to the evidence presented at arbitration. Section 6(d) is a statute of
       limitations that sets forth the appropriate time frames in which a claimant must file his or her
       application for benefits. That section bars only claims that are not filed within the stated time
       frames. Section 6(d) does not contain any evidentiary limitations.
¶ 22       Finally, we note the circuit court’s specific interpretation of section 6(d) and ruling in this
       case could lead to absurd results. As stated, the court remanded to the Commission and
       directed it “not to consider evidence of injury occurring prior to April 28, 2007, the date three
       years prior to the filing of [claimant’s] application for adjustment.” (Emphasis added.) In the
       present case, claimant happened to file her application for benefits close in time to her alleged
       manifestation date. However, section 6(d) permits the filing of an application up to three years
       after an injury manifested itself. Had claimant waited until three years after her manifestation
       date to file her claim, the court’s ruling would essentially have prevented her from presenting
       any evidence of her work history leading up to the manifestation of her injury.

¶ 23                                        III. CONCLUSION
¶ 24       For the reasons stated, we answer the certified question in the negative and find section
       6(d) of the Act does not contain an evidentiary limitation that bars the presentation of evidence
       of a claimant’s work activities which occurred more than three years prior to the alleged
       manifestation date of a repetitive-trauma injury (or the filing of the claimant’s application for
       adjustment of claim). We vacate the circuit court’s judgment and remand for further
       proceedings consistent with this opinion. See De Bouse v. Bayer AG, 235 Ill. 2d 544, 550, 922
       N.E.2d 309, 313 (2009) (providing that once a court has answered a certified question, it may,
       “in the interests of judicial economy and the need to reach an equitable result, *** consider the
       propriety of the circuit court order that gave rise to [the] proceedings”).

¶ 25      Certified question answered; circuit court judgment vacated; cause remanded.




                                                    -6-
