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Wood v. Industrial Com.

OPINION FILED DECEMBER 4, 1970.

ALFRED WOOD, APPELLEE,

v.

THE INDUSTRIAL COMMISSION ET AL. — (NATIONAL CASTINGS COMPANY, APPELLANT.)



APPEAL from the Circuit Court of Cook County; the Hon. EDWARD F. HEALY, Judge, presiding.

MR. JUSTICE BURT DELIVERED THE OPINION OF THE COURT:

Rehearing denied January 27, 1971.

Alfred Wood, the petitioner-appellee, filed an application for adjustment of claim with the Industrial Commission under the provisions of section 19 of the Workmen's Occupational Diseases Act (Ill. Rev. Stat. 1965, ch. 48, par. 172.54), against National Castings Company, on April 18, 1966, claiming that he had contracted an occupational disease while working for the company. The arbitrator held that on July 7, 1965, petitioner was disabled by an occupational disease resulting from exposure during employment by the respondent company and made an award based upon permanent and total disability.

The Industrial Commission reversed the arbitrator on the ground petitioner had failed in the burden of proof to establish that he had contracted an occupational disease as defined in the Act. The circuit court thereupon reversed the Commission and reinstated the award of the arbitrator.

It is the position of the respondent company that petitioner was not suffering from an occupational disease and that the decision of the circuit court was contrary to the manifest weight of the evidence and, as a matter of law, erroneous.

Alfred Wood was employed by National Castings Company in 1948 at the age of 35 and continued his employment with this company thereafter until July 7, 1965. At the time of his employment he weighed 170 pounds and at the time of the hearing before the arbitrator on November 2, 1967 his weight was down to 145 pounds. He never smoked and has never worked on a similar job for any other company. At the time of his employment he was feeling well and he had no history of any abnormal chest or lung conditions for which he had treatment. At the time of his employment he was given an examination, with X rays, by the company.

During the 17 years he worked for the company he had only one job, working as a swing grinder on castings on the same machine and in the same department. On his job the petitioner operated in a tin shanty 13' x 14' with three sides and a roof, in a large foundry building. He never wore a mask. There was a ventilator in the ceiling. Steel and sand would gather on the floor from the grinding of castings and upon "shake-out" it would be dusty and at times one could not see, according to petitioner. He further stated that a sand and emery product would result from grinding and fall on the floor. A lot of dust would be shovelled, which would be fine steel and sand and would be placed into buckets or boxes weighing 500 pounds. There would be an average of three boxes filled twice a week.

Petitioner described the preparation of molds, where sand is used, located from 35 to 80 feet away, and the pouring of the molten metal was about 35 to 40 feet away. The castings came on a conveyor to him while cooling and hardening. Then the castings get a "shake-out" on a large bed or grating that actually shakes, and from there the castings go to the "burn-off" men, and then the rough grinding is done by petitioner. The burn-off operation is 150-160 feet from petitioner's position.

Dust collectors and ventilators were located where the shake-out operations were performed. The collectors and ventilators, however, were not always working. About two or three times a week the dust collectors might not work, even though these machines sometimes would operate continuously for several weeks.

Petitioner worked five or six days a week and on some weeks seven days with an average of eight hours a day.

Petitioner testified that his illness became serious enough to require attention about July of 1965, when he began to run a fever and found himself becoming short of breath and he was losing weight. He saw the company doctors, who told him to see his own doctor, so he went to the University of Chicago Clinic. He was sent to Billings Hospital where examinations and tests were made. He was in the hospital from July 15 to August 3 or 4, 1965. During this time he felt weak and sick, had a cough, which "raised something up", fever, and shortness of breath. Since July of 1965 petitioner stated he has been unable to work except to do chores around the house. Walking was limited to half a block.

In support of his claim petitioner called Dr. William Colburn, a consulting chemist since 1939, with a Ph.D. from the University of Chicago, and head of the Colburn Laboratories with eight chemists under his direction. He had been furnished samples of the materials with which petitioner worked, which, he said, had the appearance of iron filings. Analysis of the sample showed 1.38 per cent of the weight of the sample originally submitted to be both free and combined silica. He estimated about 1/3 of the silica was free silica particles ranging in size from 1 to 10 microns capable of being airborne and inhaled.

Petitioner's medical testimony was furnished by Dr. Johann Bornstein, an attending physician at Michael Reese Hospital in the department of thoracic medicine, and a consultant for 15 years at the Winfield Sanitarium. He stated he had examined probably a half million X rays. His specialties were internal and thoracic medicine. He testified that he examined petitioner in December, 1966, and February, 1967, and found him "wheezy and his electrocardiogram was abnormal, and in addition he had a clubbing of the fingernails", due to lack of oxygen. The X rays showed numerous small nodules, some calcified and some uncalcified in and about the hilar area of the lungs, measuring about four millimeters, he testified, which indicated pulmonary disease. He answered a hypothetical question by saying that in his opinion there was a definite relationship between this man's occupational exposure to silica and the findings previously mentioned and his total disability. He said, "The diagnoses of Mr. Wood are multiple. His X-ray findings which go along with his history do not go along with the routine cases of emphysema. He also has some cardiovascular abnormalities, and that was disclosed by my physical examination and partially by the X rays. Three, he may very well have a fungus infection which is not active, such as histoplasmosis, which is a positive skin test for tuberculosis. * * * It is a fungus infection which is found in the soil. * * * It can look like tuberculosis."

He ruled out tuberculosis and fungi as a cause. When cross-examined by respondent's attorney he stated that the noncalcified modules on the lungs shown on the X rays were caused by his occupational exposure and were one symptom which would not be present in a person not subject to such exposure. He admitted that many of the other symptoms possibly could occur without such exposure. He further testified on redirect examination: "I do not call this a pure case of silicosis. In my opinion, I think that this man has pneumosilicosis or pneumoconiosis-silicosis. What do I mean by that? It means that he is breathing in inert particles as well as active particles." ...


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