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U.s. Ind. Chem. Co. v. Industrial Com.

OPINION FILED MAY 13, 1986.

U.S. INDUSTRIAL CHEMICAL COMPANY, APPELLANT,

v.

THE INDUSTRIAL COMMISSION ET AL. (JAMES BAILEY, APPELLEE).



Appeal from the Circuit Court of Coles County; the Hon. William J. Sunderman, Judge, presiding.

JUSTICE MCNAMARA DELIVERED THE OPINION OF THE COURT:

Rehearing denied June 25, 1986.

Petitioner, James Bailey, filed an application for adjustment of claim under the Worker's Occupational Diseases Act (Ill. Rev. Stat. 1977, ch. 48, par. 172.36 et seq.) for an occupational disease sustained while employed by respondent, U.S. Industrial Chemical Company. An arbitrator found that petitioner was suffering from an occupational disease which left him permanently disabled and which arose out of and in the course of his employment. The arbitrator awarded petitioner $212.27 per week for life. The Industrial Commission affirmed the arbitrator's decision, and the circuit court of Coles County confirmed the decision of the Commission. Respondent appeals.

Petitioner was employed by respondent, a manufacturer of industrial chemicals, from February 1958 to November 22, 1977. During this period, he worked in several different departments involving various duties. Petitioner testified that beginning in 1958 he shoveled a substance the supervisor told him was sodium silica fluoride, which covered him with fine powder and dust; unloaded sulfur without a mask; shot acid pellets into large tanks, wearing a rubber suit but no mask; and shoveled phosphoric acid and sulfuric acid sludge from the bottom of railroad tank cars, wearing an unsealed hood and rubber suit. He ran samples of products through the laboratory by draining acid into bottles, thus inhaling fumes from the acids; operated a unit causing him to inhale odors from the by-product sodium silica fluoride; fed chemicals into the synthesis end of an operation, coming into contact with ethyl chloride and chlorine in the form of liquid and gas; and packaged, mixed and pumped ethylene gas into cylinders. Petitioner loaded tank cars, exposing him to fumes from acetone, methanol, vinyl chlorides, butanol, butyl acetate, ammonia and chlorine; and used a pump nozzle daily to load drums with various chemicals including butyl acetate, denatured alcohol, butyl alcohol, ethyl acetate, methanol, ethyl ether and vinyl acetate. He bottled solvents in gallon cans; cleaned up spilled products such as solvents and alcohol products; worked with carbolic acid; and filled drums with brucine sulphate.

Petitioner testified that in the alcohol-denaturing plant respondent made consumer products, including mouthwash, codeine for chocolates, embalming fluid, iodine, shellac, shaving lotion, and nicotine. Petitioner also stated that spills occurred weekly or bi-monthly. When the spill was being cleaned: "You don't hardly get your breath in there in an enclosed room * * * from the fumes, but we did have to get it out, that was the only way to get it, was get a squeegee and brush her to the drain."

Various labels used on drums filled with chemicals were introduced into evidence. A label for methanol read: "Avoid prolonged inhalation." Labels for butyl acetate, butyl alcohol and ethyl acetate read: "Avoid prolonged breathing of vapor. Use with adequate ventilation." A label for acetone read: "Use with adequate ventilation." A label for vinyl acetate read: "Use with adequate ventilation. * * * Avoid prolonged or repeated breathing of vapor." A label for ethyl ether read: "Avoid breathing vapor. Inhalation of vapors may cause rapid loss of consciousness and death by asphyxiation. * * * Use with adequate ventilation."

Petitioner testified that he began experiencing problems with coughing and sore throats in the early 1960's, and that he had not suffered these problems prior to that time. In October 1965 he was hospitalized for 10 days, and the diagnosis was acute right lower lobe bronchopneumonia, maxillary sinusitis, and dermatitis caused by a drug allergy. He was again hospitalized in 1971 for bronchopneumonia and chronic bronchitis. In January 1972, petitioner's respiratory problems continued and he began coughing up blood; he was again hospitalized for bronchopneumonia. During the next two years, petitioner continued working but noticed that his work rate was slower, his coughing worsened when he worked with vinyl acetate, and his coughing up of phlegm worsened.

In July 1974, while inside an ether car attempting to clean out embedded sludge with steam, petitioner noticed that his throat was sore and he was nauseated. That night he began coughing up blood clots. Petitioner was hospitalized, and the medical record reads: "He works at U.S. Industrial Chemical Company and was exposed to some fumes in a tank car and the irritating gas started to effect his bronchial tubes and then he has continued to cough * * *." The diagnosis was bronchopneumonia and severe chronic bronchitis. He was released from the hospital after a week, and returned to work six or seven weeks later.

Petitioner felt that he "was going downhill" after returning to work. He became ill using the solvents in the ethylene unit. He was transferred to different positions, including one involving cleaning the boilers. This resulted in breathing dust particles and flue gas from the burning coal. Petitioner was coughing up black substances and had trouble climbing.

In November 1977, petitioner was hospitalized for severe obstructive pulmonary disease, pulmonary emphysema and lateral bronchopneumonia. He has not worked since that time. At the time of the arbitration in 1980, petitioner's lungs were full, he had chest pains, arthritis of the spine, eye problems, and had trouble with his legs, breathing and nausea.

Dr. John Jemsek has treated petitioner since 1958. His report in 1978 stated that petitioner had been unable to work since 1977, and that he had chronic bronchitis, bronchiectasis, and emphysema. Dr. Jemsek believed that petitioner would never be able to work again. In 1978, Dr. Jemsek referred petitioner to Dr. John Houseworth, a specialist in pulmonary medicine. Dr. Houseworth's report stated that petitioner suffered from chronic bronchitis, bronchiectasis and pulmonary emphysema.

Dr. Edwin Rayner Levine, director of respiratory care at Edgewater Hospital, testified for petitioner that he examined petitioner and performed tests on August 8, 1978. His diagnosis was pulmonary fibrosis, pneumonitis, bronchitis, probably granulomatosis, and chronic obstructive pulmonary disease. Over respondent's objection, the arbitrator permitted Dr. Levine to answer a hypothetical question. Dr. Levine opined that if a man was in good health until he was exposed to fumes and dust from sulfur, sodium silica fluoride, sulfuric acid, phosphoric acid, vinyl acetate, denatured alcohol, acetone, ethyl acetate, butyl acetate, methyl alcohol, butyl alcohol, ethylene, polyethelene, ethyl acetate, brucine sulphate and sulfuric acid, coal dust, and flue gas, and hydrocarbon fumes, "the state of ill-being in the described individual was the direct result of the exposure to the chemicals described in the course of his occupation." Dr. Levine also stated that the individual would not be capable of any gainful employment. Dr. Levine said that every one of the gases except carbon dioxide is irritating or damaging to the lung; that ethylene is an irritant that damages the eyes, mouth, throat, bronchi and alveoli of the lungs; that the acids mentioned irritate and damage lungs; that the alcohols mentioned are also irritating to lungs; that sulfuric acid is one of the most damaging chemicals because when it hits the wet membranes of the bronchi and lungs it acts as an acid, resulting in inflammation and scarring; that sodium silica fluoride is irritating; that flue gas causes permanent damage to the lungs; and that fine ash produces irritation in the lungs. Dr. Levine found that any one of the chemicals was capable of causing lung damage, "and the combination of these, without any question, [would] damage any lung that was exposed to these." Dr. Levine was of the opinion that petitioner's cigarette smoking did not cause the diseases he suffered from, but that the diseases were caused by "the inhalation of the toxic materials mentioned." Dr. Levine also found that exposure to these substances could aggravate any damage caused by earlier emphysema or pneumonia. He concluded that petitioner suffered from a progressive condition that would shorten his life.

Respondent based his objection to the hypothetical question and Dr. Levine's opinion on the premise that many of the facts contained in the hypothetical question were not in evidence since Dr. Levine's deposition was taken prior to the hearing before the arbitrator. It also argued that petitioner was not in good health before 1958 because he had pneumonia in 1943 and because his preemployment X rays indicated that he had emphysema.

Dr. Curtis Krock examined petitioner on August 7, 1979, at respondent's request. Dr. Krock diagnosed petitioner as having chronic bronchitis, pulmonary emphysema and possibly bronchiectasis. He stated that petitioner had a relatively severe obstructive disease but that petitioner could perform some sedentary job that did not require much outdoor work or exposure to dust and fumes. Dr. Krock did not "feel one could reasonably attribute his present condition to the circumstances of his employment." These conditions could occur in persons who had never had any unusual dust or chemical exposure. Bronchiectasis was an unusual complication of chemical exposure and usually occurs only after massive exposure to ammonia or chlorine gas. Dr. Krock believed that petitioner's smoking and pneumonia sufficiently explained the bronchitis and ...


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