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06/14/94 KIEFFER AND COMPANY v. INDUSTRIAL

June 14, 1994

KIEFFER AND COMPANY, INC., PLAINTIFF-APPELLANT,
v.
THE INDUSTRIAL COMMISSION ET AL. (CATHERINE SPOMER, WIDOW OF WALTER P. SPOMER, DECEASED, PETITIONER-APPELLEE). WALTER P. SPOMER, DECEASED, PLAINTIFF-APPELLANT, V. THE INDUSTRIAL COMMISSION ET AL. (KIEFFER AND COMPANY, INC., DEFENDANT-APPELLEE).



Appeal from the Circuit Court of Lake County. No. 92-MR-104, No. 92-MR-114. Honorable Bernard E. Drew, Jr., Judge, Presiding.

Woodward, McCULLOUGH, Rakowski, Slater, Rarick

The opinion of the court was delivered by: Woodward

JUSTICE WOODWARD delivered the opinion of the court:

This is a consolidated appeal. In No. 87-WC-36594 (first case), on September 22, 1987, Walter P. Spomer (decedent), a retired neon tube bender, filed an application for adjustment of claim pursuant to the Workers' Occupational Diseases Act (Act) (Ill. Rev. Stat. 1987, ch. 48, par. 172.36 et seq. (now 820 ILCS 310/1 (West 1992))). Therein he alleged injuries to his lungs arising out of and in the course of his employment. Decedent filed a petition for immediate hearing pursuant to section 19(b-1) of the Workers' Compensation Act (Ill. Rev. Stat. 1987, ch. 48, par. 138.19(b-1) (now 820 ILCS 305/19(b-1) (West 1992))). The primary issue in this first case was the extent of decedent's temporary total disability (TTD). During the pendency of this case, decedent died on June 20, 1988. The parties submitted a request for hearing on the first case 11 months after decedent's death.

On August 4, 1988, Catherine Spomer, the widow of decedent (claimant), filed an application for adjustment of claim under case No. 88-WC-34704 (second case). Claimant submitted a request for hearing form in the second case on September 4, 1989.

Both cases arose from the same factual situation and were heard together on September 14, 1989, by the arbitrator. The cases involved the same disputed issues, except for the additional issues of burial expenses and the employment relationship raised in the second case.

In the first case, the arbitrator found that decedent's cause of action under the Act terminated when he died on June 20, 1988. The Commission affirmed this decision, emphasizing that claimant had failed to prove decedent's inability to perform any job in a stable labor market.

In the second case, the arbitrator found that, as a result of thedecedent's exposure to an occupational disease arising out of and in the course of his employment, claimant was entitled to $62,499.91 in medical expenses, $441.25 a week for 20 years, commencing on June 20, 1988 (decedent's date of death), and $1,150 for burial expenses. The Commission affirmed the arbitrator's decision and further found that claimant failed to prove she was entitled to penalties or attorney fees tinder sections 19(k), 19(l) or 16, respectively, of the Workers' Compensation Act (Ill. Rev. Stat. 1989, ch. 48, pars. 138.19(k), 19(l), 16 (now codified, as amended, at 820 ILCS 305/19(k), 19(l), 16 (West 1992))). The circuit court confirmed the Commission's decisions, and these timely appeals followed.

In the first case, claimant argues that the Commission's denial of TTD benefits is against the manifest weight of the evidence. In the second case, the employer contends that the Commission erred in finding that decedent was exposed to an occupational disease and that there was a causal relationship between decedent's employment and his condition of ill-being.

At the arbitration hearing, the following evidence was adduced. At the time of decedent's April 21, 1988, evidentiary deposition, he was 59 years old. He had been employed as a neon tube bender for close to 40 years. Decedent worked for Breliant Sign Company between 1945 and 1948, and Federal Sign & Signal Company from 1948 to 1958. Nu-Lite Sign Company was the decedent's employer for the next 20 years. The instant employer hired decedent in 1980, and he continued working for the employer until his voluntary retirement on June 20, 1985. None of the employers had any significant ventilation other than an open door, a ceiling fan, and/or an air conditioner.

The decedent's job duties as a neon tube bender included ordering glass, ballasts, transformers, and asbestos paper which came in a 50-pound roll that usually lasted six months. Decedent would cut paper from this roll and melt glass tubing with a gas burner until it was soft and pliable. The glass was placed on top of a pattern that was laid on asbestos paper, which was usually a Johns Manville brand. After this process was completed, fibers from the asbestos paper would burn off and emit dust particles into the air. The decedent then placed the hot glass in a 16-inch by 6-foot rubber hose surrounded by a 2.5-inch by 6-inch asbestos block in order to bend the tubing into the shape of the pattern.

Decedent was responsible for keeping his work area clean. He swept up the asbestos dust and placed it in the trash. He noticed that his clothing was covered with a white ashy substance at the end of each day. Decedent did not wear any protective devices that wouldinhibit the inhalation of asbestos particles. None of his employers required him to take any precautionary measures.

Decedent testified that, during the five years he worked for the employer, he was its only neon tube bender. Decedent was on an eight-hour-a-day shift but went to a 10-hour workday at the suggestion of the owner, Steve Kieffer. Decedent used asbestos paper on a daily basis but acknowledged that, for a brief time, he used rubber-based or fiber glass materials for a small percentage of the sign jobs. These methods were discarded because they did not work well.

Shortly after decedent's voluntary retirement, he developed a mild cough. He subsequently moved to Rapid River, Michigan, where he regularly fished and hunted. In May 1987, noticing problems with his right shoulder and arm, decedent went to Dr. Thomas Richards, an osteopath. Dr. Richards' examination revealed an abnormal sound in his shoulder. He took X rays of decedent's right shoulder which showed mild degenerative changes in the shoulder with densities in the right apex of the chest. Dr. Richards subsequently advised decedent that there was an abnormality in his right lung.

In July 1987, decedent sought care from Dr. Steven Dosh, who ordered further diagnostic testing at St. Francis Hospital. Dr. Mano Nunez, a radiologist, concluded that decedent's chest X rays revealed either a mesothelioma with several implants or metastatic involvement of the pleura. Dr. Dosh believed the decedent's lung condition represented a right chest mesothelioma with possible branchioplexopathy.

Dr. Dosh sent decedent to Dr. Curtis Marder for a second opinion about an open pleural biopsy at Marquette General Hospital (MGH). Dr. Marder wanted Dr. Arthur F. Saari, a board certified internist whose specialty was pulmonary medicine, to consult on decedent's case. Dr. Saari testified by evidentiary deposition that he had previous experience in treating occupational mesothelioma that was related to asbestos exposure. He acknowledged that this condition was hard to treat and estimated that the life expectancy for a mesothelioma patient would be 1 1/2 to 2 years after onset. Dr. Saari was initially unable to render a firm diagnosis of decedent's lung mass. He suggested decedent undergo a bronchoscopy, thoracentesis, and an open biopsy of the pleura to rule out central adenocarcinoma of the lung with pleural metastases or a multifocal malignant tumor. Dr. Saari recommended that decedent be examined by the staff oncologists at MGH, as well as a major oncology facility, to decide on his treatment options. Dr. Saari admitted that even if surgery was pursued, the result would not necessarily cure decedent's condition.

Dr. Saari reviewed the results of the various procedures and still was unable to determine the status of decedent's lung condition. He conferred with Dr. Marder and Dr. Hunter, a University of Michigan Hospital oncologist. He then decided that decedent should undergo a thoracotomy and a decortication of the right lung with an Apical wedge resection of the right upper lobe and a pleurectomy. Tests confirmed an alignment neoplasm of the pleura, which was probably malignant.

Dr. Randolph E. Smith of MGH's pathology department concluded that decedent had a mesothelioma. Some of his colleagues did not fully agree with him. Dr. Smith sent slides and a paraffin block of the pleural tumor to Dr. Thomas V. Colby, a pathologist at St. Mary's Hospital of the Mayo Clinic. Dr. Colby and Dr. Lou Weiland were unable to assess decedent's lung condition. Dr. Colby noted that there was evidence of asbestos exposure in the form of hyaline pleural plaques. He believed that this finding, along with decedent's work history and the pleural tumor, strongly pointed to a mesothelioma. Dr. Colby acknowledged that decedent's lung condition had an unusual histology and clinical presentation, which made it difficult for him to diagnose definitively a malignant mesothelioma. Dr. Weiland thought decedent might have a malignant histiocytic tumor. Both of these physicians suggested that decedent's tumor slides be sent to the United States-Canadian mesothelioma panel for further evaluation. Six of the eight reviewers of the panel subsequently opined that the neoplasm was probably a mesothelioma.

Dr. Saari discharged claimant on August 14, 1987, with the diagnosis of a malignant mesothelioma, rather than an undifferentiated carcinoma. Dr. Marder agreed with Dr. Saari's opinion but noted there was some controversy over the exact nature of decedent's tumor.

Decedent underwent radiation treatment in August 1987 and September 1987. He eventually developed right chest complaints and underwent a bone scan in November 1987. Dr. Shah thought this problem was secondary to decedent's gallbladder cholecystitis. In March 1988, decedent underwent a cholecystectomy (surgical removal of the gallbladder) because he suffered recurring abdominal pain.

Decedent experienced increasing dyspnea, a cough with congestion, chills, and nocturnal sweating with some nausea. On May 24, 1988, decedent went to the emergency room of MGH, where Dr. C. F. Hammerstrom diagnosed pneumonia of the right middle and lower lobes and mild congestive heart failure. Dr. Thomas D. LeGalley concluded that decedent had malignant pericardial effusion secondaryto the extension of a mesothelioma. Dr. LeGalley attributed some of decedent's dyspnea to these problems. Decedent was provided with conservative care; he was given a poor prognosis. Dr. LeGalley discussed the possibility of placement of a pericardial window with Dr. Marder. Dr. Marder agreed with Dr. LeGalley's diagnosis, which he considered as a normal complication of mesothelioma. Dr. Marder warned the decedent that there were significant risks to the operation proposed by Dr. LeGalley and stressed that this procedure might not offer him any improvement. Dr. Marder used a subxiphoid approach in the surgery performed on June 1, 1988.

Dr. C. F. Hammerstrom of MGH noted that decedent suffered from malignant mesothelioma metastatic to the pericardium and heart and respiratory failure due to restrictive lung disease and congestive heart failure. Initially, there was limited improvement of decedent's condition. He remained hospitalized until June 20, 1988, when he died of asystole. Dr. Hammerstrom attributed his death to ...


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