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International Harvester v. Indus. Com.

OPINION FILED OCTOBER 1, 1973.

INTERNATIONAL HARVESTER COMPANY, APPELLANT,

v.

THE INDUSTRIAL COMMISSION ET AL., — (RUSSELL D. DINWIDDIE, APPELLEE.)



Appeal from the Circuit Court of Rock Island County; the Hon. Richard Stengel, Judge, presiding.

MR. JUSTICE RYAN DELIVERED THE OPINION OF THE COURT:

Rehearing denied November 28, 1973.

International Harvester Company (Harvester) has appealed from an order of the circuit court of Rock Island County which affirmed the decision of the Industrial Commission awarding compensation to Russell Dinwiddie.

Dinwiddie's claim was originally brought against his employer, Harvester, under the Workmen's Occupational Diseases Act (Ill. Rev. Stat. 1959, ch. 48, par. 172.36 et seq.), but on review by the Industrial Commission of an arbitrator's award, he filed an amended application for adjustment of claim under the Workmen's Compensation Act (Ill. Rev. Stat. 1959, ch. 48, par. 138.1 et seq.), alleging that on October 2, 1959, he was injured by reason of an accident arising out of and in the course of his employment. The Commission subsequently found that the employee sustained an accidental injury arising out of and in the course of his employment which rendered him wholly incapable of work, and awarded him compensation for permanent total disability under the Workmen's Compensation Act. Ill. Rev. Stat. 1959, ch. 48, par. 138.8(f).

Dinwiddie is disabled because of pulmonary emphysema. On the date of the alleged injury he was 39 years old and had been employed by Harvester for six years. In his youth he had been active as an amateur boxer. Although he had bronchitis when he was sixteen, he subsequently encountered no difficulty in breathing, and while serving in military service, participated in football, baseball and boxing without experiencing any respiratory problem. After his discharge from the army, he engaged in farming, worked in a poultry house and did dairy and oil field work. Later he became a welder, and went to work as an arc welder for Harvester in 1953, where he remained until ceasing work due to his disability. During his employment by Harvester, his only illness was a five-day hospitalization when he had influenza.

Dinwiddie testified that as an arc welder he worked in a canvass-covered booth which was neither enclosed at the top nor bottom, and was ventilated by means of small oscillating floor fans; that the welders wore hoods, but no mask or respirator-type device designed to filter air intake; that the process of welding caused a heavy smoke to rise and hang in the air; and that the colored glass on the helmet he wore had to be changed two or three times a day because of the smoke and dust.

He further testified that he had no breathing difficulty when he began working for Harvester in 1953; that he first noticed it in 1958 while squirrel hunting when he ran out of wind while walking fast up a hill; and that after he returned from his vacation that year when he would climb a flight of stairs rapidly his heart would pound and he would have difficulty breathing. He stated that he received no medical care in 1958; that he did not have too much difficulty with breathing during the first half of 1959, but later noticed it on over-exertion; and that while on his vacation in 1959, his legs gave out and he had to be helped and waited on. He related that when he returned to work after his vacation he experienced dizziness, difficulty when climbing stairs, and weakness in his legs.

He stated that two or three weeks prior to October 2, 1959, there were days when he received a pass from first aid to go home because it was difficult for him to breathe; that he may have worked a full day on October 2, but on October 3 he failed to return to work because he was very sick. He said that at that time he was "wheezing and rattling" as though he had pneumonia; and that he was then under the care of Dr. Louis Arp, and was hospitalized for a week beginning October 10, 1959, and again for two weeks beginning November 29, 1959.

While under the doctor's care, he stated that he continued to have difficulty in breathing and could not be near smoke even in his own kitchen; that he returned to work only for a week after each of the first two periods of hospitalization; that he was released from the hospital a third time on January 5, 1960, and worked a month. After October, he operated an overhead crane, but he still had difficulty in breathing.

He also testified that he had worked only six or seven days since February 5, 1960, driving tractors for farmers; that when he did so, he would have chills, his chest would hurt, and "his wind would shut off." He does no more walking than he has to because when he walks a normal gait his wind shuts off and his legs get weak. On cross-examination, he said he had reduced his cigarette smoking from half a pack in 12 hours in 1959, to 3 cigarettes a day in 1964.

Dr. Eric M. Peterson, a specialist in cardio-pulmonary diseases, who testified for Dinwiddie, examined him on July 16, 1962, and on August 7, 1962. His diagnosis was that Dinwiddie "had a considerable degree of pulmonary emphysema and a secondary fibrosis." He described him as a "respiratory cripple," declared that "his prognosis is bleak," and stated that he knew of no effective therapy for the disease. In response to a hypothetical question, Dr. Peterson said that Dinwiddie's condition was related to his occupation, and that, although the petitioner would have had emphysema regardless of his employment, his condition was aggravated by exposure to the noxious agents involved in welding. The doctor stated further that though the cause of emphysema is unknown, the disease progresses at a more rapid rate for people exposed to respiratory irritants or air pollutants than for individuals not so exposed. On cross-examination he said that, in his experience, emphysema tends to have its onset in "the middle span of life."

The record shows and this court has previously recognized that emphysema is a general disease of life. As such, it is not compensable under the Workmen's Occupational Diseases Act. (Rockford Transit Corp. v. Industrial Com., 38 Ill.2d 111; Lewis v. Industrial Com., 38 Ill.2d 461.) Therefore, if Dinwiddie is to receive compensation for his disability the right to recover must be found in the Workmen's Compensation Act and not in the Workmen's Occupational Diseases Act. Whether the condition of an employee who suffers from emphysema was aggravated or caused by the conditions under which he worked so that his disability is compensable under the Workmen's Compensation Act is a question of first impression in this court.

The Workmen's Compensation Act is entitled "An Act to promote the general welfare of the people of this State by providing compensation for accidental injuries or death suffered in the course of employment * * *." (Emphasis added.) The controlling question before this court then is whether Dinwiddie suffered an accidental injury in the course of his employment within the meaning of that term as used in the Act. It is the employee's position that each inhalation of the irritating fumes which assaulted his lungs over the 6-year period during which he worked for Harvester as a welder constituted an accidental injury which aggravated his pulmonary emphysema culminating in his disability on October 2, 1959.

This court has held that the word "accident" is not a technical legal term but encompasses anything that happens without design or an event which is unforeseen by the person to whom it happens. (Baggot Co. v. Industrial Com., 290 Ill. 530, 533.) In Matthiessen & Hegeler Zinc Co. v. Industrial Board, 284 Ill. 378, 384, this court stated that an injury is accidental within the meaning of the Act when it is traceable to a definite time, place and cause and occurs in the course of employment unexpectedly and without affirmative act or design of the employee. This definition has been consistently adhered to by this court. Baggot Co. v. Industrial Com.; Peru Plow and Wheel Co. v. Industrial Com., 311 Ill. 216, 220; Labanoski v. Hoyt Metal Co., 292 Ill. 218; Fittro v. Industrial Com., 377 Ill. 532; Perkins Products Co. v. Industrial Com., 379 Ill. ...


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