WRIT OF ERROR to the Circuit Court of Cook County; the Hon.
DANIEL A. ROBERTS, Judge, presiding.
MR. CHIEF JUSTICE BRISTOW DELIVERED THE OPINION OF THE COURT:
Rehearing denied May 16, 1955.
This cause is heard on a writ of error to review the judgment of the circuit court of Cook County, which affirmed the decision of the Industrial Commission denying Edward Grollemond, herein referred to as petitioner, compensation under the Workmen's Occupational Diseases Act from his employer, Whiting Corporation.
It is incumbent upon this court to determine the scope of review under the statutory writ of certiorari provided under section 19(f), (1) and (2), of the Workmen's Occupational Diseases Act, (Ill. Rev. Stat. 1947, chap. 48, par. 172.19,) and whether the circuit court erred in holding that the decision of the Industrial Commission was not contrary to the manifest weight of the evidence. It is necessary, therefore, to review the evidence, including the voluminous medical testimony.
Petitioner, Edward Grollemond, was employed by Whiting Corporation in its foundry as a chipper, from November 11, 1940, until July 3, 1947, when he left on his vacation and did not return to work thereafter. He had been off work for ten days in June because of pains in his back and chest, during which time he consulted Dr. Towle, under whose care he has remained, but who did not testify in this case. On July 2, 1947, petitioner consulted Dr. Novak, and on July 3, before leaving his employment, petitioner collected dust samples from the area where he worked. He reported his illness to his employer on July 22, 1947, and the application for adjustment of claim was filed September 5, 1947, alleging July 3, 1947, as the approximate date of last exposure, and of disablement from silicosis, for which compensation was sought for permanent total disability.
At the hearing before the arbitrator the primary question in dispute was whether or not petitioner on July 3, 1947, sustained a disablement which resulted from an occupational disease.
According to petitioner's testimony, he was unable to work, and could only help with light household duties, which exhausted him. He complained of a wide variety of physical symptoms, including shortness of breath, pains in his chest and stomach, aches in his limbs, and inability to sleep with a pillow; and stated that he had been coughing for three years.
Dr. Weissman, who examined petitioner on September 4, 1947, at the suggestion of petitioner's attorney, testified that the X rays showed increased hilar markings in the lung field, numerous nodulations, and some emphysema, but he made no findings of any heart condition, tuberculosis, or superimposed infection. He admitted that it is not unusual to find silicotic nodules more pronounced and larger than in any of petitioner's X rays where there are no complaints at all, that there was a weight gain on the second examination, that petitioner responded normally to the exercise test, and that there was a reduction in respiratory excursion. In his opinion petitioner had silicosis and was permanently disabled.
Petitioner also introduced the testimony of Dr. Julius Novak, who examined petitioner and diagnosed his condition as silicosis, second degree type, with discernible nodules, but no conglomeration, and some emphysema. He found no tuberculosis or infectuous condition, but in his opinion petitioner was totally and permanently disabled to do any physical work.
Dr. Ellis Freilich, testifying for petitioner, made a diagnosis of silicosis of the lungs with some coalescence, an increase in heart size, and emphysema; and stated that a person in this state of health would be unable to continue sustained manual labor. He found that many of petitioner's subjective complaints were unrelated to silicosis.
The employer offered the testimony of two employees who worked with petitioner. They both stated that they had never noticed petitioner coughing, and that he had never made any complaints about ill-being or inability to perform his work, except for his back complaints in June, 1947, when he asked to be transferred to a different job. They testified that respirators were available, but the men objected to wearing them because they could not smoke with them on.
Dr. Sander, an authority on silicosis, whose testimony comprised some 135 pages, testified for the employer that a diagnosis of silicosis does not necessarily mean disability, and from a description of the X-ray findings of nodules of from one to three millimeters in size, without evidence of tuberculosis or any pulmonary infection (according to the X-ray diagnosis of petitioner's witness, Dr. Weissman), that condition would not be disabling. He found that petitioner's X rays revealed nodulations indicating first stage silicosis, which is never disabling, and that it would not cause shortness of breath. He found no evidence of emphysema, and a normal heart shadow.
In the opinion of Dr. Roland Jacobson, who testified for the employer, on the basis of physical examinations, exercise tests, laboratory and X-ray examinations, petitioner had a simple silicosis which was not disabling, and that the symptoms he complained of could not be due to the silicosis.
The arbitrator found, in substance, that petitioner sustained a disablement which resulted from silicosis which arose out of and in the course of his employment, for which compensation was payable by the employer for permanent total disability.
At the hearing on review before the Industrial Commission, both petitioner and the employer offered additional medical evidence.
On behalf of the employer, Dr. Paul G. Dick testified that all of the X rays revealed simple silicosis not superimposed by an infection, that the largest nodulation did not exceed three millimeters, that such silicosis could not cause any disability for ordinary manual work, and that an electrocardiogram taken showed no heart condition that could be attributed to silicosis. Dr. Roland Jacobson again testified to another examination of claimant, which included further X rays which revealed no indication of emphysema or conglomeration. He stated that petitioner's response to the exercise test was normal, as was the laboratory report of his blood test; and that from physical examination there was no lung condition that should cause shortness of breath. Dr. N.S. Davis stated that his examination and laboratory tests of petitioner revealed good chest expansion without material fibrosis; that the blood picture was normal; that there was no evidence of right hypertrophy of the heart; and that in the X rays there was some evidence of nodulation, but no area of conglomeration, and that the nodulation as seen in the X rays would not have any effect on the heart.
On petitioner's behalf, Dr. William McNally testified that, based on physical examination and X-ray interpretation, petitioner has silicosis and a hypertrophied heart, and marginal emphysema, and that petitioner became cyanotic on exercising and is incapacitated from doing work requiring physical exertion. He found no tuberculosis, that most of the nodules are two millimeters in diameter, and some possible coalescing areas of the nodules.
It was stipulated that Dr. Ellis Freilich, who examined petitioner again on November 20, 1948, and submitted a written report of his findings, substantially in accordance with ...