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02/13/87 Andrew Gotter Et Al., v. the Industrial Commission

February 13, 1987





504 N.E.2d 1277, 152 Ill. App. 3d 822, 105 Ill. Dec. 759 1987.IL.167

Appeal from the Circuit Court of Champaign County; the Hon. George S. Miller, Judge, presiding.


JUSTICE KASSERMAN delivered the opinion of the court. BARRY, P.J., and McNAMARA and WOODWARD, JJ., concur. JUSTICE McCULLOUGH, Dissenting.


Claimants, Andrew Gotter and Rex Bitner, filed applications for adjustment of claim under the Workers' Compensation Act (Ill. Rev. Stat. 1981, ch. 48, par. 138.1 et seq.) for respiratory problems which allegedly arose out of and in the course of their employment with respondent, Blinderman Construction Company. After a hearing conducted on September 14, 1982, an arbitrator awarded each of the claimants the sum of $394.20 for 44 weeks of temporary total disability (Ill. Rev. Stat. 1981, ch. 48, par. 138.8(b)) and reasonable and necessary medical expenses (Ill. Rev. Stat. 1981, ch. 48, par. 138.8(a)). On review, the Industrial Commission affirmed the medical-expense award but reduced each claimant's temporary total disability award to $394.20 for 7 4/7 weeks. On review, the circuit court confirmed the decision of the Industrial Commission. The claimants have perfected the instant appeal to this court.

The claimants raise four issues on appeal: (1) whether the Industrial Commission's reduction of claimants' temporary total disability awards was contrary to the manifest weight of the evidence; (2) whether the Industrial Commission erred in admitting a paint bucket label into evidence; (3) whether the Industrial Commission erred in taking "judicial notice" of the chemical composition of paint; and (4) whether alleged ex parte contact between respondent's counsel and one of the members of the Industrial Commission denied claimants a fair and impartial hearing. We conclude that the issue of the ex parte communication requires the reversal of the decision of the Industrial Commission; therefore, we need not address claimant's contention that the decision of the Industrial Commission was contrary to the manifest weight of the evidence. However, as certain evidentiary questions may arise again if the circuit court remands this cause to the Industrial Commission for a new hearing, these questions will be addressed. With the foregoing in mind, it is necessary that we recite the following relevant facts.

On November 9, 1981, claimants, union painters, were employed by respondent to spray-paint interior portions of buildings at the Mount Olive Housing Project in Champaign, Illinois. Upon arrival at the site, claimants were provided with paint, airless spray guns, and paper dust masks. Although respondents made charcoal respirators available to claimants, these respirators were inoperable (i.e., the charcoal filters were "stopped up" and masks smelled of paint fumes). After claimants spray-painted for a short time, the spray equipment became inoperable and claimants spent the rest of the day preparing the walls for painting.

On November 10 claimants spray-painted for eight hours. They were provided with paper dust masks for respiratory protection. Although claimants painted on all three floors of the building, only one door on the first floor at the south end of the building was open for ventilation. Claimants noted that the spray dust and fumes were "very heavy" and were not dissipating. Since he was feeling ill, Bitner examined the label on the paint container he was using. According to Bitner, the label indicated that 100% of the solids in the paint were polymers and that the vehicle for paint (i.e., the liquid) was 27.5% ammonia and 16.5% aluminum chlorhydrate. Bitner allegedly told several other individuals that the entire contents of the paint were 27.5% ammonia and 14.5% aluminum chlorhydrate. The paint was a latex primer sealer. The claimants each experienced breathing difficulty, dizziness, and weakness in the limbs by the end of the day.

On November 11 claimants patched walls in the same building between coats of paint. They noticed that there were strong paint fumes and that the paint was still wet. They considered this to be unusual for a latex paint. Their symptoms persisted after the third day.

On November 12, while patching walls at the same location, claimants became ill. They left work early after informing respondent's foreman of their illness and their intention to seek medical attention. After they were examined by a physician on the same day, both of the claimants were admitted to the hospital. They were released from the hospital on November 23, 1981, and were released from the physician's care without restriction upon their employment activities on January 4, 1982.

Both claimants contended that their symptoms persisted through the proceeding before the circuit court and that, due to their exposure to the paint spray, they were still unable to work as painters. While we make no determination on the merits of these claims, we note that the expert testimony on this point was conflicting.

Generally, a circuit court reviewing an Industrial Commission decision must consider the case solely on the record made before the Industrial Commission. (Chambers v. Industrial Com. (1985), 139 Ill. App. 3d 550, 552, 487 N.E.2d 1142, 1144.) Since the letter allegedly sent from respondent's counsel to an insurance claims supervisor regarding alleged ex parte communications between respondent's counsel and one of the members of the Industrial Commission was not admitted into evidence before the Industrial Commission, the substance of the letter would not ordinarily be before this court. Claimants, however, urge that they did not receive a fair and impartial hearing before the Industrial Commission because of such ex parte communication.

Although the provisions of the Code of Civil Procedure and the supreme court rules are inapplicable to procedures regulated by section 19 of the Workers' Compensation Act (Chambers v. Industrial Com. (1985), 132 Ill. App. 3d 891, 893, 478 N.E.2d 498, 499), section 19 does not authorize the entry of a decision by the Industrial Commission in violation of the principles of due process. (Interstate Contractors v. Industrial Com. (1980), 81 Ill. 2d 434, 438, 410 N.E.2d 837, 839.) Although we are unable to ascertain whether claimants raised the alleged due process violation in a timely manner (see Head-On Collision Line, Inc. v. Kirk (1976), 36 Ill. App. 3d 263, 268, 343 N.E.2d 534, 538), the ...

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