Industrial Commission Division

JUSTICE O'MALLEY delivered the opinion of the court:

The claimant, George Rodriguez, sought benefits under theWorkers' Compensation Act (Act) (820 ILCS 305/1 et seq. (West1998)), for a degenerative condition in his right foot that healleged was precipitated when he twisted his ankle in disembarkingfrom a truck on March 26, 1998, while delivering dairy products forhis employer, Sisbro, Inc. (Sisbro). The arbitrator awardedclaimant temporary total disability payments and medical expenses. The Industrial Commission (Commission) corrected arithmeticalerrors in the arbitrator's decision and awarded claimant 61 and 1/7weeks of temporary total disability payments (TTD) at an averageweekly wage of $1,152.51 and $983.65 for medical expenses. TheCommission otherwise affirmed and adopted the decision. Thecircuit court confirmed the Commission's decision. We reverse.

BACKGROUND

It is undisputed that on March 26, 1998, claimant twisted hisright ankle when he stepped into a pothole in disembarking from histruck while delivering dairy products for Sisbro. Also undisputedis that claimant subsequently was diagnosed with a degenerativecondition in his foot known as Charcot arthropathy, which preventedhim from working for several weeks.

At the arbitration hearing, claimant offered the depositiontestimony of Dr. Brennan Reed, a podiatrist. Dr. Reed testifiedthat he has treated claimant for several years for foot problemsrelated to claimant's diabetes, including ulcerations on thebottoms of the feet. Dr. Reed explained that claimant suffers fromdiabetic neuropathy, a condition that affects the sensory nervoussystem, causing decreased sensitivity in the extremities to painand temperature and thereby weakening the individual's protectivemechanism. Neuropathy involves the autonomic and muscular nervoussystems as well. Dr. Reed testified that he saw claimant on April6, 1998, for a routine preventative care appointment. At thattime, claimant mentioned that he had twisted his right ankle atwork and experienced pain in his foot and ankle, which haddecreased since the accident. Because he saw no swelling anddetected no pathology in palpating the foot, Dr. Reed decided notto x-ray it. Dr. Reed testified claimant returned to his officeon April 24, 1998, complaining that he had experienced swelling andpain in the foot over the past week. Dr. Reed found that the footwas red and grossly swollen. Claimant experienced mild pain uponpalpation. X-rays revealed marked chronic degenerative changesinvolving the ankle as well as the presence of multipleosteophytes. There was marked soft tissue swelling but no evidenceof acute fracture or dislocation. Dr. Reed diagnosed "acute onsetof diabetic Charcot osteoarthropathy." Charcot, Reed explained, isa destruction or breakdown of the joints in the extremities. Charcot usually is initiated by trauma. Even "very minor trauma"can initiate it. A subject suffering from decreased sensitivitydue to diabetic neuropathy might develop Charcot as the consequenceof "insidious" trauma, that is, trauma of which he was unaware atthe time it occurred. Dr. Reed testified that he was "absolutely"sure that claimant's Charcot arthropathy was causally related tohis work-related accident of March 26, 1998. Dr. Reed explainedthat the main treatment for Charcot arthropathy in an extremity isto decrease the amount of weight the extremity bears to avoidfurther deterioration.

Dr. Reed testified on cross-examination that some Charcotpatients cannot recall any specific trauma that might havetriggered the condition. Dr. Reed acknowledged that "reallyanything" can cause the trauma, even "stepping off of a curb orwalking on uneven ground [or] stepping on a stone." Charcot can becaused by insidious trauma that does not leave evidence of itself--e.g., trauma associated with walking on an uneven surface. Traumaleading to Charcot can also be caused even by the subject's wearingshoes to which he is unaccustomed. Foot ulcerations like claimanthas also can lead to Charcot. Asked how soon he would expect tosee evidence of Charcot in a subject following trauma to thesubject's foot, Dr. Reed replied, "It can be as early as immediateas far as swelling that could occur with a trauma that doesn'tresolve, it just continues, or it can be as late as several weeks." Asked whether "the Charcot syndrome could have been caused by atrauma that [claimant] was unaware of because of the neuropathyproblems in his foot," Dr. Reed replied in the affirmative. Askedwhether "any trauma could have caused the Charcot," Dr. Reedreplied in the affirmative. Dr. Reed stated that claimant couldhave developed the Charcot simply by "stepping off a curb" or"stepping on top of a stone." Dr. Reed admitted that Charcotarthropathy "is still somewhat of an enigma." Nonetheless, Dr.Reed maintained that claimant did not already have Charcot in hisright foot at the time of the March 1998 accident.

On redirect, Dr. Reed, when asked to take into accountclaimant's prior history of diabetes and foot ulcerations and allexaminations he performed on claimant from April 6, 1998, to thepresent, reiterated his opinion that, within a reasonable degree ofmedical certainty, claimant's Charcot arthropathy was causallyrelated to his work-related accident of March 1998. Asked if itwas more likely that claimant's Charcot arthropathy was caused bythe accident in March 1998 than by some insidious trauma simplybecause claimant had felt the former trauma and brought it to hisattention, Dr. Reed replied, "Yes."

Sisbro offered the evidence deposition of Dr. John Gragnani,who examined claimant at Sisbro's request. Dr. Gragnani testifiedthat he specializes in physical medicine and rehabilitation and isboard certified in occupational and environmental medicine. Dr.Gragnani agreed with Dr. Reed that claimant suffers from diabeticneuropathy and has Charcot arthropathy in the right ankle and foot. Dr. Gragnani explained that persons with neuropathy tend to placemore stress on their joints because they have decreased sensation. A joint becomes afflicted with Charcot when it is traumatized butis not given occasion to heal because the neuropathy prevents thesubject from sensing the level of stress he places on the joint. Left untreated, a Charcot joint deteriorates over time. Dr.Gragnani opined, within a reasonable degree of medical certainty,that the Charcot arthropathy in claimant's ankle could not havebeen caused by the March 26, 1998, accident. He explained that theadvanced Charcot deterioration evidenced by x-rays taken on April24, 1998, could not have developed in only a month. Moreover, thefact that the joint was "cold" and lacked edema on that dateindicated that the Charcot deterioration was not an "acute process"but a "long-standing old process." Dr. Gragnani explained thatCharcot joints "don't develop in a matter of days," but over thecourse of "several months." Dr. Gragnani agreed with Dr. Reed thateven minor trauma can result in a Charcot joint. He stated that"[w]alking around normally will cause" a person with diabeticneuropathy "eventually to develope [sic] a Charcot joint."

Dr. Gragnani also denied the possibility that claimant mighthave aggravated a preexisting Charcot condition by twisting hisright ankle in March 1998. Dr. Gragnani explained that only a"significant injury" could have aggravated or accelerated a Charcotcondition in claimant's foot. If claimant's twisting his anklecaused a "significant injury," there would have been immediateswelling and redness in the ankle, but Dr. Reed did not findevidence of injury when he examined claimant on April 6, 1998.

Acknowledging that there was conflicting expert testimony onthe issue of causation, the arbitrator found Dr. Reed's testimony"more credible" than that Dr. Gragnani's. The arbitrator concludedthat claimant's "current of condition of ill-being, being Charcotosteoarthropathy, is causally related to his injury" at work inMarch 1998.

DECISION

Sisbro does not dispute the Commission's finding of a causalconnection but instead urges that the Commission "ignored theapplicable standard of law" by failing to consider whetherclaimant's injury "falls under the general exception tocompensation where recovery is denied when a Petitioner's health isso deteriorated that any normal daily activity is an overexertion." Sisbro argues that, despite the existence of a causal connectionbetween the accident in March 1998 and claimant's Charcot, claimantis not entitled to compensation because Drs. Reed and Gragnaniagreed that even minor trauma can cause the onset of Charcotarthropathy in claimant.

Sisbro's statement of the law is accurate. The claimant in aworkers' compensation case bears the burden of proving all elementsof his claim by a preponderance of the evidence. Parro v.Industrial Comm'n, 260 Ill. App. 3d 551, 553 (1993). The employertakes the employee as it finds him. County of Cook v. IndustrialComm'n, 69 Ill. 2d 10, 17 (1977). An employer is not relieved fromproviding compensation by the mere fact that the condition of ill-being for which compensation is sought was brought about by acondition that preexisted the accident. O'Fallon School Dist. No.90 v. Industrial Com'n, 313 Ill. App. 3d 413, 417 (2000). Aclaimant is entitled to compensation if he can demonstrate that hiswork-related accident was a causative factor in the aggravation oracceleration of his preexisting condition. Johns-Manville ProductsCorp. v. Industrial Comm'n, 78 Ill. 2d 171, 177 (1979). "The solelimitation to the above general rule is that where it is shown theemployee's health has so deteriorated that any normal dailyactivity is an overexertion, or where it is shown that the activityengaged in presented risks no greater than those to which thegeneral public is exposed, compensation will be denied." County ofCook, 69 Ill. 2d at 18. (Emphasis added.) The disjunctiveindicates that there are two distinct exceptions.

The first of these two exceptions, the "normal daily activity"exception (contrasted with the "greater risk" exception), recentlyhas been phrased alternatively as "where the employee's health hasso deteriorated that any normal, daily activity could have causedthe injury * * *." General Refractories v. Industrial Comm'n, 255Ill. App. 3d 925, 931 (1994). (Emphasis added.) Occasionally, thecourts have used "would have" and "could have" interchangeably inapplying this exception. For example, in Greater Peoria MassTransit Co. v. Industrial Comm'n, 81 Ill. 2d 38, 42 (1980), theclaimant's surgeon testified that even normal movement "could have"caused the claimant's shoulder to dislocate. Later in itsdecision, the court paraphrased the testimony, remarking that thesurgeon had testified that "any normal activity would haveprecipitated [the] dislocation." Greater Peoria, 81 Ill. 2d at 43. (Emphasis added.) The court held that the surgeon's testimony wassufficient to satisfy the exception. Greater Peoria, 81 Ill. 2d at43.

However, to confuse "would have" with "could have" in speakingof probabilities is to confuse two distinct degrees of probability. "Could" is the past tense of "can," which is used to indicatepossibility or probability. Webster's New Riverside Dictionary 105(1984). "Would," as used in the probabilistic sense, is the pasttense of "will," which indicates likelihood or certainty. Webster's New Riverside Dictionary 789 (1984). While there arecases finding the "normal daily activity" exception satisfied intestimony that such activity "would have" caused the claimant'scondition of ill-being, it is clear that the probability need notbe so strong to satisfy the exception. The first cases to invokethe exception found it satisfied in testimony that the claimant'scondition of ill-being "could have" or "might have" been caused bynormal daily activity. See, e.g., Greater Peoria, 81 Ill. 2d at42-3 (1980) (citing testimony that "any episode of minor traumacould have caused" claimant's shoulder dislocation); County of Cookv. Industrial Comm'n, 68 Ill. 2d 24, 33 (1977) (citing testimonythat normal daily activity "would" increase the pressure on theclaimant's aneurysm and "might" thereby weaken it to the point ofrupture); Illinois Bell Telephone Co v. Industrial Comm'n, 35 Ill.2d 474, 475 (1966) (citing testimony that normal daily activities"might have" caused the claimant's heart attack). The trend hascontinued in recent cases. See, e.g., Hansel & Gretel Day CareCenter v. Industrial Comm'n, 215 Ill. App. 3d 284, 291, 293 (1991); Pryor v. Industrial Comm'n, 201 Ill. App. 3d 1, 4 (1990). Accordingly, we hold that a claimant is not entitled tocompensation, regardless of whether his condition of ill-being wascaused by work-related aggravation of a preexisting condition, ifhis physical condition has so deteriorated that his condition ofill-being could have been produced by normal daily activity. Claimant suggests that this case does not involve theaggravation of a preexisting condition because Dr. Reed testifiedthat claimant's foot was not afflicted with Charcot before theMarch 1998 accident. Therefore, claimant urges, his Charcot wasnot aggravated by that accident but constituted a "new condition"that arose from his neuropathy combined with the accident. This isat bottom a semantic objection. A myocardial infarction arisingfrom hypertension and heart disease combined with the emotional andphysical stress of a hectic day in a county government office hasbeen held compensable even though it arguably constituted a "newcondition" in the claimant's cardiovascular system. See County ofCook v. Industrial Comm'n, 69 Ill. 2d at 19-20. There is no morereason to believe Charcot arising from neuropathy combined withtrauma is a "new condition." Accordingly, we analyze this case asinvolving the aggravation of a preexisting condition.

In arguing against the award of benefits, Sisbro reliesprimarily on County of Cook, 68 Ill. 2d 24, Greater Peoria, 81 Ill.2d 38, and Hansel & Gretel, 215 Ill. App. 3d 284. Claimant arguesthat the appellate court ruled for the employers in these casesonly because the claimants were injured while engaged in activitiesthat were indistinguishable in kind from normal daily activities. See Greater Peoria, 81 Ill. 2d at 41-2 (bending over to retrievefallen papers); County of Cook, 68 Ill. 2d at 28 (rising from achair); Hansel & Gretel, 215 Ill. App. 3d at 286 (same). Claimantasserts that his injury is compensable because his act ofdisembarking from his delivery truck was "more significant" thanthe work activities that gave rise to the injuries in these cases. We disagree with claimant's reading of these cases. As we willdemonstrate shortly, the nature of the activities involved in thesecases was such that both exceptions to the rule permittingcompensation in preexisting condition cases applied in each case. However, the "normal daily activity" exception was sufficient byitself to bar compensation in each case.

Claimant's emphasis on the "significance" of the work activitythat gave rise to his accident addresses only one of two exceptionsto the preexisting condition rule. An employee whose preexistingcondition was aggravated by an accident at work is not entitled tobenefits "where [his] health has so deteriorated that any normal,daily activity could have caused the injury, or where the activityengaged in presents risks no greater than that to which the generalpublic is exposed." General Refractories, 255 Ill. App. 3d at 931. Thus, despite the "significance" or intensity of the work activitythat gave rise to his condition of ill-being, a claimant is notentitled to compensation if his condition of ill-being could havecome about through normal daily activities. The "greater risk" and"normal daily activity" exceptions to the preexisting conditionrule must not be confused with each other. Obviously, the twoexceptions can be triggered by the same situation, as where theactivity that causes the injury is indistinguishable from, and thuspresents no greater risk than, a mundane, everyday activity thatthe evidence shows could have caused the injury. See, e.g., Countyof Cook, 68 Ill. 2d at 28 (rising from a chair). However, the twoexceptions are distinct and need not apply in the same case. Aclaimant can injure himself in an activity that places him at agreater risk than the general public ordinarily faces and yet notbe entitled to compensation because his physical condition hasdeteriorated to the point that his condition of ill-being couldhave occurred through ordinary daily activity.

As noted above, we agree with Sisbro that County of Cook,Greater Peoria, and Hansel & Gretel each stand for the rule that aclaimant cannot receive benefits where, due to his debilitatedstate, his condition of ill-being could have been caused by normaldaily activities. In County of Cook, the claimant was a clerk ina recorder of deeds' office. Her preexisting aneurysm ruptured asshe rose from her desk to go to lunch. The appellate courtreversed the award of benefits, citing testimony that claimantsuffered from long-term hypertension and that pressure on theaneurysm "would be increased by bending over and putting on shoesand stockings, getting in or out of bed, or any bending over belowthe level of the heart; and that high blood pressure alone over aperiod of years could eventually result in an aneurysm rupture." County of Cook, 68 Ill. 2d at 31. "It is apparent," the courtobserved, "that [the claimant's] condition had deteriorated to suchan extent that any activity could have triggered the disablingepisode." County of Cook, 68 Ill. 2d at 33. The court thenproceeded to recount the claimant's testimony that she customarilyused stairs, that she cleaned her apartment on weekends, and thatshe did her own housework, including vacuuming. These activities,the court concluded, were as strenuous as the activities thatformed the claimant's work duties. County of Cook, 68 Ill. 2d at33.

The court then added that claimant's rising from her chair"subjected her to no greater risk than did many of the normal dailyactivities * * * which also increased pressure on the brain." County of Cook, 68 Ill. 2d at 33. In our view, this invocation ofthe "greater risk" exception was superfluous, being occasioned bythe fact that the work activity that gave rise to the claimant'saccident happened to be indistinguishable from a normal dailyactivity and could not, therefore, present a greater risk than suchan activity. The court did not imply thereby that, had theactivity that gave rise to the injury exposed the claimant to agreater than normal risk, compensation would have been appropriateregardless of whether any normal daily activity could haveaggravated her condition. Both exceptions to compensation inpreexisting condition cases were satisfied by the facts in Countyof Cook, but the "normal daily activity" exception was sufficientin itself to bar compensation.

In Greater Peoria, the claimant was a bus driver. Hershoulder dislocated when she fell while bending over to retrievebus schedules that had fallen on the floor. She had dislocated hershoulder previously and thence was subject to recurringsubluxations, or partial dislocations. The appellate courtacknowledged that the dislocation occurred in the course of theclaimant's employment but reversed the award of benefits, citingevidence that "any normal activity would have precipitated [the]dislocation." Greater Peoria, 81 Ill. 2d at 43. The appellatecourt noted that the claimant's surgeon had testified that even"minor trauma--reaching for a cigarette or combing hair or turningover in bed while asleep--could have caused her shoulder todislocate." Greater Peoria, 81 Ill. 2d at 43. The court observedthat there was no evidence in the record that the claimant's work"(1) further deteriorated her shoulder, (2) aggravated it, (3)precipitated its dislocation, or (4) accelerated the occasion forits dislocation." Greater Peoria, 81 Ill. 2d at 43. In otherwords, the court explained, there was "no indication from therecord that, but for her employment, [the claimant's] shoulder'would have gone on functioning reasonably well for an indefinitetime.'" Greater Peoria, 81 Ill. 2d at 43, quoting 1 A. Larson,Workmen's Compensation