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Owens-corning Fiberglas v. Ind. Com.

OPINION FILED APRIL 5, 1977.

OWENS-CORNING FIBERGLAS CORPORATION, APPELLANT,

v.

THE INDUSTRIAL COMMISSION ET AL. — (CHARLES HOWARD HAMMOND, APPELLEE.)



Appeal from the Circuit Court of McLean County; the Hon. Wayne C. Townley, Judge, presiding.

MR. JUSTICE RYAN DELIVERED THE OPINION OF THE COURT:

Respondent, Owens-Corning Fiberglas Corporation, has appealed to this court pursuant to our Rule 302(a) (58 Ill.2d R. 302(a)) to review a decision of the circuit court of McLean County in a Workmen's Occupational Diseases Act case (Ill. Rev. Stat. 1971, ch. 48, par. 172.36 et seq.). The arbitrator awarded claimant, Charles Hammond, 3 1/7 weeks of benefits for temporary total disability at the amount of $83 per week. On review, the Industrial Commission extended this compensation to a period of 26 weeks, and also awarded claimant $4,322.37 for reasonable medical expenses incurred as a result of the occupational disease. The respondent appealed, and the petitioner also appealed the failure of the Commission to award compensation for permanent partial disability. The circuit court affirmed the Commission's award but also ordered respondent to pay claimant additional compensation of $51.35 per week for a period of 390 weeks. This latter award was predicated on the circuit court's determination that claimant had become partially incapacitated from pursuing his usual and customary form of employment.

It was stipulated, at the arbitrator's hearing, that on April 2, 1971, the relationship of employer-employee existed between claimant and respondent and that respondent operated under the provisions of the Workmen's Occupational Diseases Act. At that time claimant was married and had two children under 18 years of age. Claimant's average yearly earnings were $8,759.92, and his weekly wage was $168.46.

Claimant had worked in a plant in Bloomington, Illinois, since 1953. The plant manufactured products which were partially composed of asbestos fibers, and the production operation emitted dust into the air which contained these fibers. Respondent purchased the plant on April 15, 1970. Claimant was working as a supervisor at that time, and he continued in this position until April 3, 1971, when he was laid off.

Claimant was hospitalized on April 22, 1971, after complaining of chest pains, severe coughing and shortness of breath. Claimant was treated by Dr. Robert Conklin, who is a specialist in thoracic surgery. Dr. Conklin's final diagnosis was that claimant suffered from chronic and acute bronchitis and pulmonary fibrosis related to asbestos fibers in his lungs. It was the doctor's opinion that the condition of pulmonary fibrosis could have been caused by exposure to asbestos dust and that the condition was permanent. The doctor further testified that claimant's condition was a gradual, degenerative disease and that there was not much which could be done to relieve the condition.

Dr. Conklin advised claimant to not return to work at respondent's factory and to find work where he could breathe cleaner air. In August 1971, claimant obtained work as a truck driver. Claimant testified that he worked a full 40-hour week when work was available, but that he did not work regularly during winter or on other days when the weather was bad. Claimant testified that his earnings as a truck driver in 1972 amounted to about $5,200.

Claimant has been hospitalized twice since his initial hospitalization in April 1971. Claimant testified that he still coughs frequently, often uncontrollably, and that he still suffers from shortness of breath. According to Dr. Conklin, claimant's health has not improved significantly since his first treatments in April 1971.

Additional testimony was taken before the Industrial Commission. Dr. George McNeely testified that he had examined claimant in July 1970 (nine months before claimant was laid off) at the respondent's request. Dr. McNeely's examination indicated a condition of diffused fibrosis in both of claimant's lungs. Dr. McNeely had reported to respondent that claimant should be retired for medical reasons. The doctor did not specifically recall whether he had informed claimant of his findings. Claimant testified that no one had informed him, at that time, that he had contracted asbestosis.

Respondent challenges the ruling of the circuit court upon a number of grounds. Initially, respondent contends that claimant was not disabled within the meaning of the Act. In determining this issue, and other issues where a question of fact is involved, we are governed by the well-settled rule that the findings of the Industrial Commission on a factual question will not be reversed unless they are contrary to the manifest weight of the evidence. American Steel Foundries v. Industrial Com. (1973), 55 Ill.2d 538, 540.

Section 1(e) of the Workmen's Occupational Diseases Act defines the term "disablement" as "the event of becoming disabled from earning full wages at the work in which the employee was engaged when last exposed to the hazards of the occupational disease * * * or equal wages in other suitable employment." (Ill. Rev. Stat. 1971, ch. 48, par. 172.36(e).) Respondent contends that the testimony did not show that claimant was disabled from performing his customary duties, but only that he would become disabled if he continued to perform such duties. We find this contention to be without merit. A workman is considered disabled for purposes of the Act when he can no longer work without endangering his life or health. (American Steel Foundries v. Industrial Com. (1973), 55 Ill.2d 538, 540.) Ample evidence was introduced to demonstrate the extent of claimant's occupational illness and its continuing nature. The evidence is clear that claimant, as a result of an occupational illness, was unable to engage in the type of work he had performed for approximately 18 years.

Respondent next contends that it was error for the circuit court to award claimant compensation for permanent partial incapacity when the Industrial Commission failed to make such a finding. It should be noted that the Commission did not expressly enter a finding that claimant had not suffered a partial incapacity. The arbitrator had ruled that the disabling condition was temporary and had not yet reached a permanent stage, and the Commission's order was silent on this point.

Section 8(d) of the Act (Ill. Rev. Stat. 1971, ch. 48, par. 172.43(d)) provides that where an employee is partially incapacitated from pursuing his usual line of employment, he shall receive a certain percentage of the difference between his former wage and the amount he is now able to earn in the same employment or in some other suitable employment. The record is clear that the claimant is no longer able to pursue his usual employment. The record is also clear that claimant's condition is not temporary. The sole medical testimony established that claimant's condition is progressive and degenerative. None of the evidence suggested that claimant's condition was improving or even subject to improvement. The contrary conclusion of the arbitrator was against the manifest weight of the evidence. To whatever extent the Industrial Commission's failure to enter a section 8(d) award rested on the conclusion that claimant's condition was temporary, its decision was also contrary to the manifest weight of the evidence.

Respondent contends, however, that the record does not establish that claimant is unable to earn the same wages as he did before his disablement in some other suitable employment. In Groveland Coal Mining Co. v. Industrial Com., 309 Ill. 73, 75, a case involving section 8(d), we stated that "[i]f the employee is making an honest effort to work and the evidence shows that he is actually earning what he is able to earn but that it is less than he earned before his injury, then a fair award for the partial disability he has suffered would be the statutory percentage ...


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