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United States Steel Corp. v. Indus. Com.

OPINION FILED MARCH 29, 1985.

UNITED STATES STEEL CORPORATION, APPELLANT,

v.

THE INDUSTRIAL COMMISSION ET AL. (JEROME MILEROWSKI, APPELLEE).



Appeal from the Circuit Court of Cook County; the Hon. James C. Murray, Judge, presiding.

JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT:

Respondent, United States Steel Corporation, appeals from a judgment of the circuit court of Cook County confirming an Industrial Commission decision which reversed the denial of compensation by an arbitrator and made an award to claimant Jerome Milerowski for loss of hearing.

On appeal, respondent contends that (1) the Commission's finding that claimant met his burden of showing an exposure to noise with the intensity of 90 decibels or more for eight hours, or its time-weighted equivalent, was legally erroneous; and (2) certain other determinations of the Commission were against the manifest weight of the evidence.

Claimant, who was the only person to testify at the hearing of the arbitrator on December 10, 1979, stated that he had been employed by respondent for 20 years — 18 of which were in its Blooming Mill, where he had been a millright for 16 years — and is presently working as such in the mill. He testified that the mill was always very noisy and that he and other employees had to holler or shout to communicate even from distances of 3 to 4 feet. He described the noise as pounding, banging, and slamming as ingots were being rolled, with loud explosions also occurring when the ingots made contact with air or salt pockets. He also testified that these noisy conditions existed as long as he has worked in the mill — which has been since 1959.

He first noticed difficulty with his hearing in 1976, and when it worsened he went to see Dr. Ralph F. Naunton, at Billings Hospital, on April 28, 1978. Dr. Naunton examined his hearing on that day and, a week later, did an audiometric examination, after which he prescribed a hearing aid. Claimant has been wearing the aid every day except while working in the mill, where he has been wearing earmuffs and ear plugs provided him by respondent "about a year ago" (which would have been December 10, 1978).

In response to a subpoena calling for all sound surveys at the Blooming Mill, respondent produced only a December 1963 survey, which showed sound-level values at that time of from 90 to 103 decibels at various sites in the mill.

The following medical reports were received in evidence by agreement: (a) from Dr. Naunton, whose evaluation showed "a severe bilateral symmetrical sensori-neural or nerve impairment consistent with age change plus rather severe damage to hearing from exposure to noise"; (b) from Dr. Marshall U. Simon, who examined claimant on March 23, 1979, at the request of claimant's attorney, and whose report showed "a marked bilateral sensori-neural type of hearing loss in both ears" and whose diagnosis was "acoustic trauma with severe loss of auditory acuity"; (c) Dr. Edward L. Applebaum, who examined claimant on February 9, 1979, at the request of respondent, and found that he had "bilateral sensori-neural hearing loss compatible with presbycusis and (although not typically) noise induced hearing loss"; (d) Dr. M. Reese Guttman, who examined claimant on August 30, 1979, at the request of respondent and found that claimant's hearing loss was consistent with bilateral presbycusis consistent with his age and "was neither caused nor aggravated by noise exposure and is unrelated to his employment."

The arbitrator denied compensation, finding that claimant had failed to prove that his hearing loss was the result of an occupational disease. The Industrial Commission reversed that decision and awarded compensation on the basis of exposure to excessive noise levels at his place of employment. This decision was confirmed by the circuit court of Cook County, and this appeal followed.

OPINION

• 1 Concerning respondent's first contention that the Commission's finding that claimant met his burden of showing an exposure to noise with the intensity of 90 decibels or more for eight hours was legally erroneous, we initially note that the Commission had adopted hearing-loss guidelines covering exposure to noise between July 1, 1975, when the Workers' Occupational Diseases Act (the Act) first provided for partial loss of hearing, and September 15, 1980, the effective date of an amendment to the Act adopting those guidelines. One of these guidelines (Rule 13-(1)), entitled "Causal Connection," provided as follows:

"The Industrial Commission shall use the following rebuttable presumptions to determine whether exposure between July 1, 1975 and September 15, 1980 to industrial noise caused a hearing loss:

(a) Exposure to noise with the intensity of 90 decibels or more for 8 hours or its time weighted equivalent causes hearing loss, and

(b) Exposure to noise with the intensity of less than 90 decibels or less for 8 hours or its time weighted ...


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