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06/24/87 James Jarrett, v. the Industrial Commission

June 24, 1987





511 N.E.2d 144, 156 Ill. App. 3d 898, 110 Ill. Dec. 309 1987.IL.876

Appeal from the Circuit Court of Macon County; the Hon. John L. Davis, Judge, presiding.


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


Claimant James Jarrett filed an application for adjustment of claim seeking benefits under the Workers' Occupational Diseases Act (Ill. Rev. Stat. 1981, ch. 48, par. 172.36 et seq.) for injuries allegedly sustained while working for respondent A. E. Staley Manufacturing Company. An arbitrator awarded claimant $172.61 per week for 31 2/7 weeks of temporary total disability and $1,615.55 for necessary medical expenses. On review, the Industrial Commission adopted the arbitrator's decision and findings, and also awarded claimant $172.61 per week for an additional 104 2/7 weeks of temporary total disability. On administrative review, the circuit court of Macon County reversed the Commission's decision, finding that it was against the manifest weight of the evidence. Claimant appeals.

Initially we note that claimant was moved to strike Staley's brief due to numerous violations of Supreme Court Rule 341(e)(6), which requires that the facts necessary to understand the case be stated accurately, fairly, without argument or comment, and with appropriate references to the record. (107 Ill. 2d R. 341 (e)(6).) Claimant has pointed to numerous misstatements, mischaracterizations, misquotations, unfair implications and statements, inappropriate arguments and comments, and inaccurate citations to the record in Staley's brief. We agree with claimant's charge, but we find it would not aid Justice to strike Staley's brief. Because of the numerous violations of Rule 341(e)(6), Staley's statement of facts does not aid our decision, and we set forth the facts in detail here after our own thorough review of the record. Our holding in this appeal is in no way influenced, however, by Staley's noncompliance with Rule 341. See Gibraltar Corp. v. Flobudd Antiques, Inc. (1971), 131 Ill. App. 3d 545, 269 N.E.2d 515.

In January 1978, claimant began working for Staley as a laborer. In March 1978, he began working with phenothiazine, a chemical contained in large blocks manufactured by Staley and used by the agricultural industry to destroy worms. A label for the medicated blocks stated that 94% phenothiazine was the active drug ingredient. The label also stated, "Persons exposed to TDA-3 for extended periods of time should use eye, skin, and respiratory protective devices to avoid possible irritation." After several months, claimant suffered from rashes on his neck and arms, dizziness, stomach cramps and headaches. In June 1978, claimant testified that he experienced a seizure. He felt ill, called his mother, and then became unconscious. He had never experienced any of these symptoms prior to working for Staley. His family had no history of seizure disorders.

Claimant testified regarding his duties while he worked for Staley. Beginning in March 1978, approximately twice each week, claimant dumped 42-pound bags of phenothiazine into a machine called a "hopper." He dumped four bags every eight minutes, seven hours a day. This was done about twice a week. In 1978, claimant estimated that he spent 20% of his time dumping bags. In 1979, claimant spent 40% of his time working around the hopper or dumping bags.

When claimant dumped a bag, dust flew up into his face and onto his clothes and skin. The room was filled with the chemical and appeared foggy. When he washed his clothes later, they would fall apart as if they contained acid. Claimant never saw any employees wearing a dust mask. He was issued no protective equipment. The production superintendent told claimant that the chemical was not supposed to harm dark-skinned people.

Claimant testified that there was no dust collection system around the opening of the hopper. On the days he was not dumping bags of phenothiazine, claimant was sweeping the chemical on the third floor while other workers dumped the bags. A great deal of phenothiazine accumulated on the floor during the day. Claimant would fill a wheelbarrow, which was several feet deep and three feet wide. During the summertime, the third floor's 8-foot by 8-foot door was open, and three or four windows were open about eight inches. The temperature was 75 or 80 degrees in the room, and he perspired as he worked.

During 1978, claimant saw the company nurse several times, complaining of a skin rash, stomach aches, headaches, dizziness and blurred vision. He did not tell anyone at work about the seizure because he did not know its cause.

After the seizure in June 1978, claimant saw Dr. Barry Ashkinaz, who prescribed Dilantin, an anticonvulsive drug. In January 1979, claimant suffered another seizure, which was witnessed by his girlfriend. Dr. Ashkinaz hospitalized claimant, but the test results were negative and claimant returned to work. Claimant estimated that he had 10 seizures during 1979. Several times he went to the emergency room for treatment. In June 1980, claimant changed doctors and began seeing Dr. N. L. Still.

In August 1980, Dr. Goldberg, the company physician, restricted claimant from dumping bags of phenothiazine because of his skin rash. Claimant continued to clean, including sweeping the chemicals on the third floor two or three times each week. Claimant estimated that he had approximately 10 seizures during 1980. Claimant subsequently worked on the first floor as a palletizer, handling the blocks after they were wrapped. Phenothiazine dust was also present on the first floor, but in a smaller amount and for shorter periods of time.

On January 16, 1981, claimant had a seizure at work. He was taking a break after sweeping, but he could not recall if they were running phenothiazine that day. Dr. Ashkinaz was sent for, and claimant was hospitalized. Claimant testified that the seizures always came within several days of working with phenothiazine. Claimant also had seizures on February 3 and June 23, 1981.

Claimant stopped working on December 4, 1981. Dr. Still recommended that claimant work with other people; lift, carry or push no more than 75 pounds; not work with hazardous machinery; work only up to heights of six feet; and not climb telephone or electrical poles. Staley placed claimant on sick leave. Claimant had 15 or 20 seizures between December 1981 and the time of the arbitration hearing on July 22, 1982. The seizures had been witnessed by family members and friends. No doctor or nurse has witnessed a seizure. Claimant reported he had lost 20 pounds, slept often, had decreased energy and libido, and continued having seizures intermittently.

Glodine Joyner, claimant's mother, testified that claimant had no unusual childhood illnesses. Neither claimant nor the family had any history of seizure disorders. When Joyner arrived at her son's home in June 1978, he was unconscious, and she called an ambulance. He remained unconscious for several hours. She has witnessed 10 or 12 seizures since that time. On May 30, 1982, claimant had several seizures before he was brought to the hospital. He was stretched out, screaming, and had respiratory problems. When the paramedics arrived, claimant was having clonic contractions. Paramedics observed similar contractions on two other occasions.

Brenda Buford, claimant's girlfriend, testified that in January 1979 she found claimant lying in a daze. He was having convulsions. His arms and legs became rigid for several minutes. Since that time, Buford has witnessed well over 10 seizures. During the severe seizures, claimant had trouble breathing, perspired, and had strong convulsions. The last seizure prior to the arbitration hearing was on May 30, 1982, when he had five seizures within an hour or two.

Claimant introduced into evidence a March 1981 emergency room report stating that Buford reported claimant had suffered six seizures that day, each lasting about three minutes. An examination revealed aniscoria, with the right pupil dilated. The diagnosis was acute postictal syndrome.

Dr. Ashkinaz's report referred to claimant's hospital admission on January 15, 1979. The report describes two syncopal episodes in the previous seven months.

Dr. Barry Lake Fischer, a physician specializing in occupational medicine, testified for claimant that his examination of claimant on October 17, 1981, revealed normal findings. In answer to a hypothetical question, Dr. Fischer testified that claimant had toxic blood levels of phenothiazine, which could be achieved by way of both inhalation and exposure to the skin. Dr. Fischer based his opinion on claimant's description of a history of occupational exposure to phenothiazine; the skin eruptions which gradually worsened; the seizures; and claimant's description of working without protective clothing or respirators. Dr. Fischer also based his opinion on laboratory findings showing claimant was anemic.

Dr. Fischer also relied upon medical texts and literature where patients developed seizure disorders while on pharmacological, not industrial, doses of phenothiazine. Industrial phenothiazine is stronger than pharmacological doses. While one tablet of pharmacological phenothiazine equaled 50 milligrams, a 42-pound bag of industrial phenothiazine would equal, in a rough calculation, 200,000 pharmacological pills. Dr. Fisher explained that the changes made to phenothiazine to produce the pharmaceutical did not alter its toxic effect on humans. Other medical studies also showed a relationship between phenothiazine exposure and seizure activity.

Because claimant had described the air as foggy with the chemical when he was dumping bags, Dr. Fisher estimated that there was a minimum of 100 parts, or 60 to 70 milligrams, per square cubic meter. This was more than a pharmaceutical dose. If continued exposure on the average of one per week for six months was assumed, the likely effect would be skin eruptions and neurotoxicity, which blood toxicity results in damage to the nerve cells in the head, and thus nerve destruction. This damage causes the seizure activity. No studies had been done on persons exposed to industrial strength phenothiazine.

Because of claimant's repeated exposure, there would be an accumulation in the body. The drug would be ingested mainly through the respiratory system, but also could gain access through the skin if the patient were perspiring. In Dr. Fischer's opinion, the exposure described by claimant through June 1978 was sufficient to cause the seizure in June 1978. Dr. Fischer believed that claimant was sensitized because other employees did not exhibit problems working with the drug, and because his skin eruptions indicated a sensitivity to the drug. Other workers ...

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