Appeal from the Circuit Court of Fulton County, the Hon.
Kenneth L. Bath, Judge, presiding.
JUSTICE GOLDENHERSH DELIVERED THE OPINION OF THE COURT:
On July 25, 1977, petitioner, Steven E. Fleming, filed an application for adjustment of claim alleging a loss of hearing in both ears due to exposure to loud noise over a four-year period while in the employ of respondent, International Harvester Company. The application designated December of 1970 as the "Date of Accident, Last Exposure, Disability or Death." At the arbitration hearing petitioner moved to amend the application, stating that the date designated as "Date of Accident, Last Exposure, Disability or Death" was intended to state the beginning of exposure, and that the exposure continued for nine years, rather than four. Respondent objected to the amendment, and the arbitrator took the motion under advisement.
Respondent moved that the claim be dismissed for want of jurisdiction on the ground that the application referred to a date of disability or last exposure of December 1970, but was not filed until July 25, 1977. Petitioner responded that a definite time, place, or event could not be fixed as causing petitioner's injury and that it was a continuing type of injury.
The arbitrator, finding that disablement did not, as required by the statute, occur within one year from the date of last exposure to the hazards of an occupational disease, dismissed the claim and denied compensation. The record does not contain a ruling on the motion to amend the application for adjustment of claim.
The decision of the Industrial Commission on review includes the following findings of fact and conclusions of law:
"1. The Commission finds that Petitioner has established an exposure in excess of 90 dBA for an eight hour day or the time weighted equivalent. The OSHA noise survey reflects that Petitioner worked in areas with noise greater than 90 dBA. Respondent did not introduce any evidence contrary to Petitioner's claim of exposure to excessive noise.
2. The Commission finds that exposure to excessive noise at work has contributed to Petitioner's existing hearing loss.
3. The Commission finds that Petitioner's Application for Adjustment of Claim was filed prematurely. The Occupational Disease Act requires that a date of last exposure be established. Ch. 48, § 172.36(d). Petitioner has not alleged or proven a date of last exposure to the disabling cause. In fact, Petitioner states that a date of last exposure can't be fixed because it is a continuing thing (arb. 9). Petitioner's disability is constantly changing due to the continuing exposure to the noise. This prevents the determination of the extent of permanent loss of hearing. Until Petitioner can establish a date of last exposure the claim for compensation for permanent loss of hearing is denied.
IT IS THEREFORE ORDERED BY THE COMMISSION that Petitioner was exposed to a disabling cause but that Petitioner failed to prove a date of last exposure therefore claim for compensation herein is denied."
On certiorari, the circuit court of Fulton County confirmed, and both parties appealed (87 Ill.2d R. 302(a)).
The parties disagree whether petitioner may be awarded compensation for a present work-related hearing loss when he continues to be exposed to the disabling cause. Respondent, citing repeated references in the Act to such a date, contends that a date of "last exposure" must be established. Respondent argues that since petitioner continues to be exposed to the disabling cause, he cannot prove a date of "last exposure." Respondent argues, too, that a date of last exposure is necessary to prevent petitioner's filing multiple claims during his exposure to the noise "until he is finally able to prove his case." Such a situation, it argues, would subject employers to repeated trials and burdensome legal expenses. Petitioner argues that to adopt respondent's position would force him to either leave his present employment or wait for his employer to fire him or transfer him away from the noise before he could recover for a disability that has already accrued.
We are of the opinion that an award to petitioner for his hearing loss is not precluded merely because he continues to be exposed to the disabling cause. Disablement is defined in the Workers' Occupational Diseases Act as "an impairment or partial impairment, temporary or permanent, in the function of the body or any of the members of the body * * *." (Ill. Rev. Stat. 1977, ch. 48, par. 172.36(e).) Petitioner's impaired hearing falls within this category of "disablement." The Commission denied petitioner's claim because "petitioner's disability is constantly changing due to the continuing exposure to the noise." The Act, however, provides for recovery without a finding of the extent of permanent loss. Under section 19(b) of the Workers' Occupational Diseases Act, "The Arbitrator or committee of arbitration may find that the disabling condition is temporary and has not yet reached a permanent condition and may order the payment of compensation up to the date of the hearing, which award shall be reviewable and enforceable in the same manner as other awards, and in no instance be a bar to a further hearing and determination of a further amount of temporary total compensation or of compensation for permanent disability, but shall be conclusive as to all other questions except the nature and extent of such disability." (Ill. Rev. Stat. 1977, ch. 48, par. 172.54(b).) It appears that the findings in the Commission decision, if insufficient to serve as the basis for an award for the permanent loss suffered, were clearly adequate to support an award under section 19(b). Under the circumstances, the Commission erred in denying compensation because petitioner continued to be exposed to the disabling cause.
Respondent contends that petitioner should not be permitted to amend his application for adjustment of claim and that his claim should be denied because it was not timely filed. (Ill. Rev. Stat. 1977, ch. 48, par. 172.43.) Respondent argues that the amendment offered at the hearing deprived it of its right to have sufficient information concerning the nature of the claim to properly defend it. Petitioner contends that amendments should be liberally allowed, and that ...