APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT, INDUSTRIAL COMMISSION DIVISION
525 N.E.2d 155, 170 Ill. App. 3d 706, 121 Ill. Dec. 349 1988.IL.855
Appeal from the Circuit Court of Marion County; the Hon. Richard H. Brummer, Judge, presiding.
JUSTICE CALVO delivered the opinion of the court. BARRY, P.J., and McCULLOUGH, McNAMARA and WOODWARD, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE CALVO
Claimant, Carl Wade, filed a claim under the Workers' Occupational Diseases Act (the Act) (Ill. Rev. Stat. 1979, ch. 48, par. 172.1 et seq.) alleging that he contracted an occupational disease arising out of and during the course of his employment with H & H Plumbing Company . The arbitrator denied compensation, but the Industrial Commission (the Commission) reversed the arbitrator's decision and awarded claimant temporary total disability benefits for 123 2/7 weeks. The Commission also found claimant to be permanently disabled to the extent of 10% of a whole person. The circuit court confirmed the Commission's decision and H & H now appeals to this court. The sole issue before us is whether the Commission's decision that claimant was exposed to asbestos and contracted an occupational disease arising out of and during the course of his employment with H & H was against the manifest weight of the evidence.
The 66-year-old claimant, a pipe fitter since 1959, worked for H & H from the fall of 1975 through January 18, 1980. While employed with H & H, claimant worked on the construction of the World Color plant (the plant) in Salem, Illinois. Claimant worked a regular 40-hour week with some occasional overtime; his primary duty was welding. A. B. Burton, vice-president and purchasing agent for A & K Midwest Insulation Company , testified that A & K served as the sub-contractor under H & H for the insulation at the plant. He testified that he personally purchased all of the materials necessary for the insulation at the plant, and that he never purchased any materials labeled as or containing asbestos.
Claimant, however, alleges that he was exposed to asbestos from two sources at the plant. First, claimant alleges that gaskets -- white, three-fourths of an inch, rope-like material used to insulate inspection plates on boilers -- contained asbestos. Claimant testified that as part of his duties he helped install approximately four boilers in the plant. The boilers contained plates which could be removed so that a person could go inside the boilers to clean or inspect them. When the pipe fitters replaced the plates, they glued the gaskets around the plates to seal them airtight. In order to put the gaskets on, claimant testified that he first had to saw the gaskets with a hacksaw in order to make them the correct size. Sawing the gaskets produced white dust, which was inhaled by claimant and fell on claimant's clothes. H & H did not provide any breathing masks, and claimant did not use any such masks.
Darrel Hayes, a pipe fitter for 20 years, worked at the plant between 1976 and 1980. Hayes testified that he helped install and insulate the boilers. According to Hayes, five boilers were installed; each boiler took two to three weeks to install. Hayes testified that he worked specifically with claimant to saw the gaskets. He corroborated claimant's testimony regarding the appearance and use of the gaskets, and the dust the gaskets produced when they were sawed. Hayes referred to the gaskets as "asbestos string."
Clifford Martin, a plumber and field superintendent for the plant between 1975 and 1979, testified that the pipe fitters did not have to add the gaskets to the boilers, although he had never installed a boiler. He testified that World Color, not H & H, ordered the boilers and Train Murray manufactured them. According to Martin, the inspection plates were taken off in order to get inside the boilers and remove the shipping braces and other material packed inside them during shipment. The inspection plates were presealed when World Color received the boilers, but the seals were broken when the doors were taken off to remove the packing material. The pipe fitters removed the doors and then reinstalled the seals after the doors were put back on.
Lee Severs, general foreman at the plant between 1978 and 1980 and a former pipe fitter, testified that not only were the inspection plates taken off to remove the packing material, but the plates were taken off again after the boiler was fired so that an inspector could go inside the boiler. The pipe fitters then resealed the plates after the inspection. Severs also testified that the gaskets were made of asbestos fibers. Robert Norris, general foreman at the plant from 1974 through 1978 and a pipe fitter, also testified that "rope asbestos gaskets" were used to seal the boiler doors. He testified that the gasket material was prepackaged and shipped with the boilers. Norris testified further that at least two and maybe as many as four openings on the boiler had to be sealed with gaskets. He did not, however, observe the pipe fitters saw the gaskets.
Richard Acklin, part owner and officer of H & H and project manager at the plant between 1975 and 1980, testified that the gaskets were on the boilers when H & H received the boilers. Moreover, he did not see any of the pipe fitters saw or install the gaskets on the boilers, and he observed that the pipe fitters' work area was relatively free of dust. Burton testified that to his knowledge some gasket material is made of asbestos. He stated that A & K neither supplied the gaskets at the plant nor installed them. Furthermore, James Alexander, president of A & K, testified that A & K did not use gaskets, but in the past an asbestos rope was used in seals around boilers. He had not seen such material, however, for 30 years. Although Alexander stated that gaskets were not required or used as boiler seals at the plant, he also stated that the manufacturer insulated the boilers, not A & K. Alexander testified that even fiberglass insulation creates some dust when it is cut.
Claimant also alleges that he was exposed to asbestos through the welding blankets used at the plant. Claimant testified that the pipe fitters used "asbestos" or "welding" blankets to cover and protect equipment from sparks and hot slag produced by the welding. Claimant stated that the pipe fitters periodically cleaned and moved the blankets during the course of the day. To clean a blanket, two people shook it to get the dust and pieces of slag off of it. As the blanket was shaken, a cloud of light brown dust flew in the air. According to claimant, the pipe fitters never used canvas tarpaulins to protect the equipment. Claimant admitted that he did not see any labels on the blankets indicating that they contained asbestos.
Claimant testified that between 40% and 50% of the time he functioned as a non-working foreman; the remainder of the time he functioned as a working foreman. As a non-working foreman, under union rules, claimant could not handle the materials or tools -- he functioned strictly as a supervisor. Claimant acknowledged that, as a union member, he abided by these rules. Consequently, when he was a nonworking foreman, he did not move or shake the blankets. Norris testified, however, that non-working foremen sometimes helped their crew even though the union rules would not allow it. Hayes testified that claimant ...