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Certi-serve. Inc. v. Industrial Com.





Appeal from the Circuit Court of Christian County, the Hon. Mark Joy, Judge, presiding.


The claimant, Larry S. Laker, filed an application for adjustment of claim under the Workers' Compensation Act (Ill. Rev. Stat. 1979, ch. 48, par. 138.1 et seq.) to recover benefits for the loss of use of the left eye. An arbitrator awarded compensation based on 85% permanent loss of use of the eye, 1 5/7 weeks' temporary total disability, and $1,155.23 for medical expenses. The Industrial Commission increased the award for permanent loss to 100% and affirmed the other provisions in the arbitrator's decision. The circuit court of Christian County confirmed the Commission's finding. The claimant's employer, Certi-Serve, Inc., brought this direct appeal under our Rule 302(a). 87 Ill.2d R. 302(a).

Laker, a pipefitter, was installing underground gasoline storage tanks at a service station in Rochester on June 1, 1979. In order to gain access to electrical wiring which his co-workers had accidentally severed, he removed an inspection plate from a neon sign. There were a number of birds' nests inside. As he was removing the nests, the wind blew one of them against his face and debris entered his eyes and his mouth.

Laker testified before the arbitrator that he was blinded for a minute or two and that his eyes began to water, became red, and itched. The next day his eyes felt better, but were still red and watering. He worked that day, but after work went to St. Vincent Memorial Hospital in Taylorville. There both eyes were flushed and a patch was placed over the right eye. The claimant returned to work on June 4, 1979.

Laker next sought medical treatment on June 7, 1979, at St. Mary's Hospital in Decatur at the suggestion of Toby Pumphrey, the owner of Certi-Serve, Inc. The vision in Laker's left eye had become foggy. Both eyes were again bathed and an appointment was made for Laker to consult Dr. James Kammer, an opthalmologist. Dr. Kammer examined the claimant and referred him to Dr. Wyhinny of Chicago.

On June 11, 1979, a fluoroscan angiogram was taken by Dr. Wyhinny. Laker noticed a loss of vision and some redness in his left eye at this time, but little irritation. He complained of seeing a black spot in his left eye. Because of the distance between the claimant's home in Taylorville and Chicago, Laker was referred to Dr. Victor Zion in Urbana. On June 14, 1979, Dr. Zion repeated the angiogram. By June 18, 1979, Laker reported an almost "total blackout" in the left eye. Following laser treatment by Dr. Zion on that date, Laker noticed that "[t]he black spot had seemed like it was narrowing down and was just like little wrinkles out to the side of it and my vision was improving." His vision continued to improve for two or three months. In October of 1979, Laker noticed heavy black spots redeveloping in his left eye. The accident did not permanently affect the vision in the claimant's right eye.

Before the accident on June 1, 1979, Laker said he had 20/20 vision in each eye. In 1970 he had an accident in which acid was sprayed in his eyes, but it was immediately neutralized and flushed. He has never had any other problem with his eyes and has never worn glasses.

Dr. Zion, a retinal/vitreous surgeon, testified for the claimant by deposition that the results of the fluoroscan angiogram he administered showed that Laker "had two subretinal neovascular membranes near the macula of the left eye which were quite characteristic of an illness which we know as presumed ocular histoplasmosis syndrome" (POHS). POHS, which causes the growth of abnormal new blood vessels beneath the retina, is of uncertain origin. Dr. Zion stated that he could not express an opinion with any degree of medical certainty as to whether the disease was causally related to the June 1, 1979, accident. He did state, however, that "there is some very sequential evidence that [POHS] is related to [systemic] histoplasmosis" and that bird droppings and dust are definitely related to systemic histoplasmosis. When first examined by Dr. Zion on June 14, 1979, Laker had 20/200 vision. He is legally blind in the left eye, and further treatment would not be helpful in restoring any lost vision capacity.

Dr. Edward Slifer, a pathologist at St. Vincent Memorial Hospital in Taylorville, testified by deposition for the claimant. He stated that Laker had called him in October of 1980 to inquire about presumed ocular histoplasmosis. He stated that the disease is referred to as "presumed" because there is no way short of removing the entire eye to prove that a vision impairment was caused by ocular histoplasmosis in the retina. The disease, Dr. Slifer testified, has been recognized and observed for only the last 10 years, and how it enters the system is a medically controversial subject. In response to a hypothetical question stating circumstances experienced by Laker, Dr. Slifer said:

"[T]here is just no question in my mind that [the presumed ocular histoplasma organism] got in his eye.

Those are certainly an unusual set [sic] of circumstances [so] that one scientifically would logically conclude that there is a relationship between those things."

Dr. Slifer further stated that he had grown the organism in a culture medium in three to five days, and described the human eye as an ideal culture medium. Visual disturbance would develop as soon as the organism began to grow. He testified that the most common cause of histoplasmosis is bird droppings. On cross-examination, Dr. Slifer conceded that any retinal disease could have been the cause of Laker's visual problems. He described the size of the organism as one micron (0.000039 inch) or less, and capable of being absorbed in eye tissue.

Dr. Ram P. Tewari, a professor of clinical microbiology at Southern Illinois University, was referred to as a recognized expert on systemic histoplasmosis. Dr. Tewari, who testified for the respondent, stated that there is no definite association between systemic histoplasmosis and presumed ocular histoplasmosis. Birds and bird droppings, he said, do not contain the POHS organism, but droppings do serve as a nutrient. Moisture and darkness are important to the growth of the organism. He described the POHS organism as being between two and five microns in size, too large to penetrate eye tissue. In response to a hypothetical question similar to the one propounded to Dr. Slifer, Dr. Tewari gave the opinion that it was not possible for Laker to get POHS by direct exposure to the debris from the bird's nest. His opinion was based on the premises that the organism has been found only in soil, that it needs humidity, that light acts as a retardant to its growth, and that its size prevents direct penetration of eye tissue.

On cross-examination, Dr. Tewari stated that the organism can survive in soil for a year outside of its natural habitat. His cross-examination ...

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