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02/23/94 JOHN DEERE HARVESTER WORKS v. INDUSTRIAL

February 23, 1994

JOHN DEERE HARVESTER WORKS, APPELLANT,
v.
THE INDUSTRIAL COMMISSION, ET AL. (LARRY ADKINS, APPELLEE).



Appeal from Circuit Court of Rock Island County. No. 91MR116. Honorable Susan B. Gende, Judge Presiding.

Released for Publication March 24, 1994.

Honorable John T. Mccullough, Presiding Justice, Honorable Thomas R. Rakowski, Justice, Honorable Alfred E. Woodward, Justice, Honorable Kent Slater, Justice, Honorable Philip J. Rarick, Justice

The opinion of the court was delivered by: Woodward

JUSTICE WOODWARD delivered the opinion of the court:

Claimant, Larry Adkins, filed an application for adjustment of claim pursuant to the Occupational Disease's Act (Act) (Ill. Rev. Stat. 1987, ch. 48, par. 172.36 et seq.) Therein he alleged loss of hearing in both ears arising out of and in the course of employment with John Deere Harvester Works (the employer). Claimant did not allege work-related hearing loss beyond August 3, 1987, at which time he began to use hearing protection. The arbitrator found that claimant had sustained a 27.3% loss of hearing in his left ear and 15.17% loss of hearing in his right ear.

On review, the Industrial Commission (Commission) adopted the arbitrator's decision. The circuit court confirmed the Commission's decision, and this timely appeal followed.

On appeal, the employer raises two issues, namely, (1) that the Commission's decision was against the manifest weight of the evidence, and (2) the Commission erred in denying the admission of evidence obtained in claimant's work area in October 1989.

Before dealing with these issues, we must address another matter. At oral argument, the employer referred to this court's recent decision of Young v. Industrial Comm'n (1993), 248 Ill. App. 3d 876, 619 N.E.2d 773. Subsequently, the employer filed a motion to cite additional authority, namely, Young. Said motion was granted.

In the brief accompanying its motion, the employer, first contends that Young's formula for determining hearing loss contradicts the one utilized in the instant cause by the arbitrator and the Commission. In Young, the court stated:

"We conclude that under section 8(d)(16)(d), an employer is not liable for any hearing loss attributable to injury arising prior to July 1, 1975, and that compensable hearing loss after July 1, 1975, is that amount of hearing loss occurring after July 1, 1975, in excess of 30 decibels." (Emphasis added.) Young, 248 Ill. App. 3d at 881.

In the cause before us, both the arbitrator and the Commission employed a formula which gave the employer credit only for that portion of the pre-1975 hearing loss which would be compensable under section 8(d)(16)(c). Said section provides that hearing losses of 30 decibels or less constitute no compensable hearing disability.

In his resistance to the employer's motion to cite the Young case, claimant states:

"There is no dispute whatsoever that if the opinion in Young is applied to this case, compensation would be denied and all other issues would become moot. We do not dispute or disagree [with] the manner in which the Young formula has been calculated by the appellant in its brief."

Given this admission, the issues before us are: (1) whether this court will apply Young retroactively; and (2) whether the employer waived calculation of claimant's hearing loss by the Young method by failing to raise it before ...


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