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Mckay Plating Co. v. Industrial Com.

OPINION FILED JUNE 1, 1982.

MCKAY PLATING COMPANY, APPELLEE,

v.

THE INDUSTRIAL COMMISSION ET AL. (RUSSELL RILEY, APPELLANT).



Appeal from the Circuit Court of Rock Island County, the Hon. Jay M. Hanson, Judge, presiding.

JUSTICE GOLDENHERSH DELIVERED THE OPINION OF THE COURT:

An arbitrator for the Industrial Commission on November 20, 1979, awarded petitioner, Russell Riley, workmen's compensation for a period of 23 3/7 weeks of temporary total disability (Ill. Rev. Stat. 1977, ch. 48, par. 138.8(b)) and for 1% permanent partial disability (Ill. Rev. Stat. 1977, ch. 48, par. 138.8(d)(2)) suffered as the result of accidental injuries sustained while in the employ of respondent, McKay Plating Company. Cross reviews were filed and, without taking additional evidence, the Industrial Commission set aside the decision of the arbitrator and awarded petitioner compensation for a period of 26 3/7 weeks of temporary total disability and for 20% permanent partial disability. The Commission also found that respondent, without just and good cause, failed, neglected and refused to pay weekly compensation benefits and awarded petitioner the additional sum of $2,500 as provided in section 19(l) of the Act (Ill. Rev. Stat. 1977, ch. 48, par. 138.19(l)). The Commission also found an unreasonable and vexatious delay in the payment of compensation during a portion of the period of temporary total disability and, pursuant to section 19(k) of the Act (Ill. Rev. Stat. 1977, ch. 48, par. 138.19(k)), awarded petitioner an additional sum in the amount of 50% of the compensation payable during that period of temporary total disability. Pursuant to section 16 (Ill. Rev. Stat. 1977, ch. 48, par. 138.16) the Commission awarded petitioner attorney fees in the amount of 20% of the compensation awarded under sections 8(b), 19(l), and 19(k) of the Act (Ill. Rev. Stat. 1977, ch. 48, pars. 138.8(b), 138.19(l), 138.19(k)). Respondent sought certiorari, and the circuit court of Rock Island County reversed the decision of the Commission as contrary to the manifest weight of the evidence and reinstated the decision of the arbitrator. Petitioner appealed pursuant to Supreme Court Rule 302(a). 73 Ill.2d R. 302(a).

At the hearing before the arbitrator it was stipulated that on July 15, 1978, petitioner suffered an accidental injury which arose out of and in the course of his employment. It was also stipulated that at the time of his injury petitioner was 19 years of age and that his average weekly wage was $120. Respondent conceded that petitioner was exposed to chromic fumes but denied any causal connection between that exposure and petitioner's injury.

Petitioner testified that on July 15, 1978, while operating a chrome plating machine, he suffered nosebleeds and headaches. On July 31, 1978, petitioner was examined by Dr. R.D. Lelonek. Petitioner returned to respondent's the following day and talked with Wilbur McKay, respondent's president. He told Mr. McKay that he had seen Dr. Lelonek and gave him a bill he had received from the doctor. Mr. McKay told petitioner that he could not have him working for the company any longer and his employment was terminated. Petitioner returned to Dr. Lelonek, and on January 16, 1979, Dr. Lelonek performed surgery to repair a nasal septal perforation. After the surgery petitioner returned to Dr. Lelonek every other week until February 6, 1979, at which time he was released to return to work. Petitioner testified that since July of 1978 it had been hard for him to breathe through his nose, especially when playing sports, and that he still had headaches. On cross-examination petitioner testified that he worked continuously for respondent from March of 1978 until August of 1978 and that his only exposure to chromic fumes occurred during this period of time. Petitioner testified that on February 2, 1979, he started working for Midwest Pop Shoppe as a filler operator at an average weekly wage of $170. He had been working continuously since February 2, 1979, and had not lost any time from work as a result of any problems with his nose. Petitioner also testified that after he was terminated by respondent he collected unemployment compensation until he went to work on February 2, 1979, and that at the time he applied for unemployment compensation, and until the time of his surgery, he represented himself to be physically able to work.

Wilbur McKay testified that on or about August 1, 1978, he had a conversation with petitioner at respondent's plant at which time petitioner stated that he wanted to come back to work. Mr. McKay told petitioner that respondent was "low on work" and that there was no work for him. McKay stated that one other employee had been terminated a week or two before this conversation with petitioner, and within the next month approximately five more employees were terminated because of lack of work. Between August of 1978 and January of 1979 none of those employees were replaced.

By agreement of the parties the reports of three physicians were admitted into evidence. A letter written by Dr. Lelonek, the treating physician, dated February 26, 1979, stated that at the time of petitioner's first visit on July 31, 1978, he was found to have a nasal septal perforation. Surgical repair of this perforation was performed in January of 1979. Petitioner had an uncomplicated postoperative course, and when last seen in the doctor's office on February 6, 1979, the perforation was "practically completely healed." Dr. Lelonek stated, "Thus, I expect that he [petitioner] will have practically no difficulty in the future with recurrence of nasal crusting or nasal obstruction. I believe that the perforation was probably due to exposure to chemicals involved in the chrome plating industry." According to a letter written by Dr. Albert Zimmer, respondent's examining physician, dated May 7, 1979, "the nasal septum was dry, with some scarring present, and had slight irregularity. The mouth, and throat was unremarkable. I feel that this man [petitioner] has had good repair of the septal perforation. The septum is healed at this time, but in view of the fact that there is no cartilage in it, there is still a chance of septal perforation recurring. He may also have some persistent dryness of the nose, due to some damage of the mucous glands on the turbinates, which would go along with exposure to chromate, and other fumes. After reviewing the pictures, and with the amount of time that Mr. Riley was exposed to the fumes, I feel that it is most probable the septal perforation was caused by exposure to the fumes. I see no evidence of any other contributing cause to his problems. I would feel that he is able to work at any reasonable occupation, where he will not be exposed to noxious fumes, such as he may be around welding, or around other chemicals." At the request of his attorney, petitioner was also examined by Dr. E.R. Levine. In his report, dated July 6, 1979, Dr. Levine stated that "there is a noticeable area in the nasal septum where the surgery was done." No opinion was expressed by Dr. Levine regarding permanent disability.

Petitioner contends that the factual determination of the Industrial Commission as to the nature and extent of the injury which petitioner sustained is not against the manifest weight of the evidence and should not have been reversed by the circuit court. Petitioner argues that it is clear from Dr. Zimmer's report that because of the danger of recurrence of the septal perforation petitioner cannot engage in any occupation where he would be exposed to noxious fumes. He points out that petitioner is, by occupation, a laborer, and argues that "these restrictions substantially reduce his potential in the open job market." Respondent submits that petitioner has the burden of proving the elements of his claim, and contends that the Commission's finding of 20% permanent partial disability is totally without foundation in the record. While no longer contesting causal connection between the exposure and the perforated nasal septum, respondent asserts that there is no medical testimony linking petitioner's headaches to the exposure and argues that there is no basis in the record for inferring that the headaches resulted from the chromic fume exposure. Respondent contends that petitioner's "only residuum is a lack of cartilage in the nose and a susceptibility to further perforation upon additional chromic fume exposure" and argues that "to find that this minimum residuum * * * has resulted in one-fifth permanent impairment of the body as a whole is absurd" and against the manifest weight of the evidence.

The determination of the extent of petitioner's injury is the function of the Commission, whose finding will not be disturbed unless it is against the manifest weight of the evidence. (Zarley v. Industrial Com. (1981), 84 Ill.2d 380; Bishop v. Industrial Com. (1980), 78 Ill.2d 315.) The award for permanent partial disability was made pursuant to section 8(d)(2), which in pertinent part provides:

"If, as a result of the accident, the employee sustains serious and permanent injuries * * * which * * * do not incapacitate him from pursuing the duties of his employment but which would disable him from pursuing other suitable occupations, or which have otherwise resulted in physical impairment; or if such injuries partially incapacitate him from pursuing the duties of his usual and customary line of employment but do not result in an impairment of earning capacity, * * * then in any of the foregoing events, he shall receive * * * compensation at the rate provided in subparagraph 2 of paragraph (b) of this section for that percentage of 500 weeks that the partial disability resulting from the injuries covered by this paragraph bears to total disability." (Ill. Rev. Stat. 1977, ch. 48, par. 138.8(d)(2).)

Dr. Zimmer's report shows that petitioner is suffering from a disability in that he is unduly sensitive to noxious fumes, a condition precipitated by his on-the-job exposure to chromic fumes and one which is apparently permanent. Section 8(d)(2) does not require that the accident result in impairment of earning capacity, only that the injury partially incapacitate an employee from pursuing the duties of his usual and customary line of employment. On this record we cannot say that the finding that petitioner has suffered permanent partial disability to the extent of 20% is contrary to the manifest weight of the evidence.

Petitioner next contends that the decision of the circuit court reversing the Commission's imposition of penalties and attorney fees under sections 19(k), 19(l), and 16 is contrary to law. In its order the Commission found:

"7. That the Respondent did without just and good cause, fail, neglect and refuse payment of weekly compensation benefits for the period from 5/7/79 to 3/25/80, and said Petitioner is now entitled to have and receive from said Respondent the further sum of $2,500.00, the statutory maximum, as provided in paragraph (l) of Section 19 of said Act, as amended.

8. That there has been an unreasonable and vexatious delay by the Respondent herein in the payment of compensation for the period from 1/6/79 to 2/6/79 of temporary total incapacity for work; that said Petitioner is now entitled to additional compensation in the amount of 50% of the amount of Compensation payable during said period of temporary total incapacity as provided in paragraph (k) of Section 19 of said Act, as amended; and that Petitioner's attorney's fees is the amount of 20% of compensation awarded under ...


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