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Zupan v. Industrial Com.





Appeal from the Circuit Court of Madison County; the Hon. Nicholas G. Byron, Judge, presiding.


Rehearing denied April 30, 1986.

The employer, National Steel, Granite City Division (National), appeals from a judgment of the circuit court reversing the Industrial Commission's denial of benefits to the claimant, Paul Zupan. Zupan filed a claim for benefits under the Occupational Diseases Act (Ill. Rev. Stat. 1971, ch. 48, par. 172.36 et seq.) (hereafter the Act). Zupan alleged in his claim that he had contracted asbestosis as a result of the conditions of his employment.

The claimant was a bricklayer for National from 1951 to 1973. He would lay insulation bricks around furnaces and pipes. In 1966 or 67, the claimant had a routine chest X ray taken at National's plant. As a result of the X ray, National sent him to Dr. Lamb, a lung specialist. The claimant thereafter had a chest X ray taken every six months, until 1972. In 1972, the claimant collapsed while at work because of an inability to breathe. He never returned to work at the plant.

The claimant was referred to Dr. Narscius following Dr. Lamb's death. The claimant was hospitalized in April 1973. At this time, he was diagnosed as suffering from myocardial ischemia and pulmonary fibrosis. The claimant's employment was terminated in April of 1973 and he was placed on a disability pension. Zupan filed his claim for benefits on April 17, 1974.

In 1976, the claimant was referred to Dr. S. Mohyuddin, a lung specialist. Mohyuddin confirmed the diagnosis of pulmonary fibrosis and obstructive lung disease. When the claimant consulted Mohyuddin again in 1978, Mohyuddin obtained a new medical history. It was during this history that the claimant first included a history of exposure to asbestos.

In the stipulation sheet, National disputed whether the claimant had been exposed to an occupational disease and causation. The claimant's first hearing before an arbitrator was held July 23, 1979, before arbitrator Boyd. The claimant had testified on direct examination when Boyd went off the record. The claimant was the only witness to testify that day. The hearing was never resumed. On December 20, 1979, Boyd issued an order finding that the claimant had been exposed to the hazards of an occupational disease but denying benefits. The claimant appealed. National requested a new hearing based on its lack of opportunity to cross-examine the claimant.

A new hearing was held on October 6, 1980, before arbitrator Duty. At the hearing, the claimant testified that during his employment he had used bricks and other materials which carried the Johns-Manville label and which he believed were labeled as and made of asbestos. The claimant would saw the bricks to make them fit around the plant structures. Cutting the brick caused substantial amounts of dust to enter the air. He sometimes worked in an enclosed space. The only protective clothing he wore were goggles and, during the later years, a cloth mask. The claimant testified that he also worked with "thermoflake." National, according to the claimant, subsequently replaced some of the asbestos materials with vermiculite.

The claimant testified that as a result of his illness, at the time of arbitration, he could not climb a flight of stairs or walk more than one block. He remained in bed for up to 20 hours a day.

The claimant introduced medical evidence in the form of a letter and an evidence deposition of Dr. Mohyuddin. Dr. Mohyuddin testified that given the claimant's stated history of exposure to asbestos, it was more than likely that the exposure had caused the claimant's illness. On cross-examination, Mohyuddin stated that there was a "good cause and effect relationship." On redirect, Mohyuddin testified that pulmonary fibrosis cannot be identified with one specific cause. Finally, he opined that the claimant's condition was permanent and could only worsen.

Following the introduction of this evidence, National presented the testimony of Gilbert Moss, a superintendent of the brick department for National from 1967 on, and Walter Creason, the salesman for one of National's suppliers of brick. Both men testified that asbestos products were not used in the plant from 1967 to 1973 to their knowledge. Creason identified one insulating brick used at National and testified that the brick contained no asbestos.

In rebuttal, the claimant testified that the brick identified by Creason was not the only insulating brick used. The bricks which the claimant believed were made of asbestos were a different type of brick used in addition to the one described by Creason.

Arbitrator Duty issued his decision on December 19, 1980, denying benefits. The arbitrator found that the claimant was exposed to the hazards of an occupational disease but that the evidence failed to prove that he contracted an occupational disease. This decision was appealed to the Commission.

At the hearing before the Commissioner, the claimant attempted to introduce the evidence depositions of five bricklayers, all employees at National. Each employee testified that he observed materials used in bricklaying that were made of asbestos. One of the five employees, Harry J. Brandt, also testified in his evidence deposition that the heat-protective clothing worn by the bricklayers contained asbestos. Arthur Evenden, another of the employees, testified that at times the dust from ...

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