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Tolbert v. Illinois Workers' Comp. Comm'n

Court of Appeals of Illinois, Fourth District

June 5, 2014

MARK TOLBERT, Appellant,
THE ILLINOIS WORKERS' COMPENSATION COMMISSION et al. (Prairie Central Cooperative, Appellee)

Page 454

Appeal from the Circuit Court of McLean County. No. 12-MR-200. Honorable Rebecca Foley, Judge, presiding.

JUSTICE STEWART delivered the judgment of the court, with opinion. Presiding Justice Holdridge and Justices Hoffman, Hudson, and Harris concurred in the judgment and opinion.



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[¶1] The claimant, Mark Tolbert, worked for the employer, Prairie Central Cooperative. The employer operates grain elevators. At the time of the alleged accidental injury, the claimant's job duties included cleaning and maintaining grain flats, elevators, and bins. The work environment exposed the claimant to significant airborne dust particles that included dried bird droppings. The claimant began suffering from respiratory problems and had to quit working. His doctors subsequently diagnosed him as having a lung condition, histoplasmosis, which is caused by a fungus usually associated with bird droppings. The claimant filed a claim under the Workers' Compensation Act (the Act) (820 ILCS 305/1 et seq . (West 2012)).

[¶2] The arbitrator found that the claimant failed to give timely notice of the accidental injury to the employer and that the claimant failed to prove that his current conditions of ill-being, which include chest pain and breathing problems, were causally related to his exposure to a fungus that causes histoplasmosis at the workplace. The arbitrator also found that the claimant was not entitled to recover for medical expenses or temporary total disability (TTD) benefits. The Illinois Workers' Compensation Commission (Commission) affirmed and adopted the arbitrator's decision and made an additional finding that the claimant failed to prove that he was exposed to histoplasmosis at his workplace. The circuit court entered a judgment confirming the Commission's decision. The

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claimant now appeals from the circuit court's judgment. For the following reasons, we reverse and remand for further proceedings.


[¶4] The claimant testified that he previously worked for the employer full-time from 1998 until 2008. He began working for the employer again as a seasonal employee on July 28, 2010. At that time, the claimant was 36 years old.

[¶5] The claimant's medical records indicate that prior to working for the employer in 2010, he underwent a sleep study on April 26, 2010, and was diagnosed with positional obstructed sleep apnea. Also, on July 9, 2010, the claimant saw Dr. Kashyap with complaints of daytime sleepiness. Dr. Kashyap's records indicate that the claimant had a past medical history that included chest pain, headaches, and dizziness. The records indicate that at the time of the examination the claimant did not have any complaints of chest pain. The sleep study records indicate that the claimant reported getting sleepy and tired during the daytime. Dr. Kashyap diagnosed the claimant as having hypersomnia.

[¶6] When the claimant began working for the employer on July 28, 2010, his job duties included loading train cars with grain, dumping grain trucks, and general maintenance, including cleaning up a grain flat, grain elevators, and grain bins. The claimant testified that a lot of his job duties involved cleaning out a large grain flat that was 660 feet by 300 feet. The flat contained a lot of debris, including bird droppings, and the cleaning work produced a lot of airborne dust. The claimant testified that he saw a lot of pigeons inside the flat. He wore a dust mask while performing his duties, and he testified that he went through three to five dust masks each workday.

[¶7] The claimant testified that after he started working for the employer in 2010, he started feeling weak, coughing phlegm, having severe chest pains, and suffering from shortness of breath. Although his medical records indicate that he had previously suffered from chest pains, he testified that his previous chest pains were two years prior to August 2010 and were not as severe. He had smoked since he was 15 years old, but testified that he did not have any previous problems with his lungs until working for the employer in 2010.

[¶8] The claimant testified that on August 26, 2010, he felt weakness and numbness in his hands and feet, as well as shortness of breath and chest pains. Therefore, he went to the emergency room and reported his difficulty breathing and chest pains. August 26, 2010, was the last day he performed any work duties for the employer.

[¶9] At the arbitration hearing, the claimant presented emergency room records that were dated September 21, 2010. The records from that visit indicate that the claimant reported chest pressure for the past three weeks, as well as shortness of breath and pain that worsened with sitting up. The pain was constant for the past three weeks. The records state that the claimant " [h]ad similar episode of pain 2 years and had negative stress test."

[¶10] Notes written by the claimant's primary care physician, Dr. Steven Norris, dated September 22, 2010, indicate that the claimant reported steady chest pain for the past three weeks and some shortness of breath. Dr. Norris ordered a series of tests, including a chest X-ray, CAT scan of the chest, and a PET scan. The tests revealed the presence of " two right lower lobe pulmonary nodules" and a " left lower lobe pulmonary nodule." Dr. Norris initially thought that the claimant might be

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suffering from lung cancer and ordered a biopsy.

[¶11] Sometime after the claimant first went to the emergency room with complaints of chest pain and shortness of breath, he spoke with the employer's general manager, Mark Heil. The claimant testified that he told Heil that he had been to the emergency room, that his doctor did not want him working around the grain dust, that he was waiting to hear about test results to see what they found, and that he had follow-up appointments with his doctors to go over the test results.

[¶12] During his testimony, the claimant denied telling Heil that he believed that his condition was related to cancer. According to Heil, however, on September 1, 2010, the claimant came to his office and told him that he had cancer. Heil testified that, before this meeting with the claimant, he was aware that the claimant was having lung and chest issues because he had heard other people talking about them. Heil testified that the claimant told him that he had medical appointments scheduled for biopsies and tests later that month, and that if he continued to work, the appointments would have to be rescheduled to a later time. Based on his conversation with the claimant, Heil understood that the claimant was leaving his job. He shook the claimant's hand and wished him the best of luck. Heil then sent a text message to the employer's personnel manager to inform her that he had a meeting with the claimant and that the claimant was done working for the employer.

[¶13] Heil subsequently filled out a " Voluntary Leave Questionnaire" for the Department of Employment Security in which he described the reason the claimant left employment as follows:

" [The claimant] told us that he had personal health issues that need to be taken care of. We asked that he get an okay from doctor after he told us the doctor told him he needed to tell his employer of his health status. [The claimant] then decided to leave work and then take care of his health issues over the next few weeks to a month."

[¶14] Heil testified that he did not mention cancer to other employees because the claimant wanted that to be kept confidential. He also testified that the claimant did not ask about any positions that might be available that did not involve working in the grain bins or flats. He believed that if the claimant had not resigned, there were other positions with the employer that the claimant could have performed that did not involve grain dust, including a truck probe operator or performing computer work or other office tasks. The claimant testified that he asked Heil if other jobs were available, but that Heil did not offer him any position that did not involve working in grain dust. Instead, according to the claimant, Heil told him that there were no other jobs available. The claimant testified that he would have accepted such a position if one was available, that he never quit his job, and that no one ever told him that he was fired.

[¶15] The claimant underwent the lung biopsy on October 4, 2010. The lung biopsy showed that the claimant was suffering from histoplasmosis. In a report dated October 22, 2010, Dr. Norris noted his diagnosis of histoplasmosis and that the claimant presented with symptoms that included shortness of breath, cough with phlegm, chest pain, and weakness. Dr. Norris also wrote as follows: " States that back in late July through end of August was in grain flat [t]ransferring and cleaning the flat. The corn was 6 years old and was the worst he has seen--lots of mold, bird droppings. Tons of pigeons and sparrows in the flat 'all the time'."

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[¶16] The claimant testified that he notified Heil of his histoplasmosis diagnosis the same day of the biopsy by a text message. Heil, however, testified that he did not hear anything from the claimant after their last meeting in September except for a text message sometime in November in which the claimant asked if there was any way he could earn $400 or $450 that day. According to Heil, the text did not state anything about the claimant's biopsy. Heil testified that he first learned that the claimant was claiming that his lung condition was caused by a work injury when the employer received a letter in the mail from the claimant's attorney in November stating that the claimant contracted histoplasmosis as a result of cleaning out grain elevators for the employer. Heil received a second text message from the claimant around that same time in November warning him to be careful about the " dust in the grain building or something to that affect [ sic ]."

[¶17] Dr. Norris wrote a " Dear Employer" letter on November 11, 2010, in which he wrote as follows:

" [The claimant] is being treated for a lung infection that he likely got being around grain dust/dust in general as well as pigeon feces and or mold. I recommended [the claimant] not work around these environmental exposures until his infection is adequately treated. Length of treatment is likely months and could be up to a year."

[¶18] The claimant treated with Dr. Human W. Farah on November 9, 2010. Dr. Farah wrote in his November 9, 2010, report that the claimant had been diagnosed with histoplasmosis and that he " was working around the bird feces and started to have chest pain and shortness of breath." Dr. Farah also noted that the claimant had smoked about one pack of cigarettes per day since he was 15, but was trying to cut down on his smoking.

[¶19] In a medical report dated January 19, 2011, Dr. Farah wrote: " There is a significant history of exposure on the patient's occupational history. The patient was cleaning the dust out of grain elevators and was exposed to bird residue and this is known to be a significant risk factor for histoplasmosis." He opined that the claimant " had exposure in the grain elevator to bird residue which was resulting in the exposure to histoplasmosis and development of chronic histoplasmosis lung disease." He also noted that he advised the claimant to quit smoking. He believed that Dr. Kashyap's treatment for hypersomnia was unrelated to the diagnosis of histoplasmosis.

[¶20] On March 11, 2011, the employer's independent medical expert, Dr. Charles B. Bruyntjens, authored a report based on a review of the claimant's medical records. In his report, Dr. Bruyntjens answered three questions posed by the employer, but the questions are not set out in the report or otherwise located anywhere in the record. Dr. Bruyntjens first wrote that " [i]n his working environment [the claimant] developed a cough with shortness of breath." He stated that the claimant's biopsy was consistent with histoplasmosis, but that the claimant's current condition was " unremarkable," that he has " a near normal pulmonary function test, nodules on his CT scan with minimal symptoms." Dr. Bruyntjens believed that " the overwhelming majority of patients with histoplasmosis are either asymptomatic or have rapidly resolving, self limiting disease requiring no treatment or follow-up." The doctor opined that if the claimant had been a nonsmoker, " a biopsy would probably never been done at the beginning of his work up and at his age could [have] been followed." He believed

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that the claimant's histoplasmosis " may have never been diagnosed, without any long term problems."

[¶21] Dr. Bruyntjens then wrote as follows in answer to the employer's question " number two" :

" [I]t is probably true that [the claimant's] current condition is usually connected with his employment. The organism is a soil-dwelling fungus that river banks are favorite roosting sites. When such sites are disturbed by construction activities, vast amounts of potentially infectious aerosols may be formed. In a typical patient the illness resembles influenza."

[¶22] He added that the onset is abrupt, consisting of fever, chills, and substernal chest discomfort, and that " normal hosts with primary pulmonary histoplasmosis recover eventfully more than 99% of the time." He opined: " It is virtually impossible to induce a second (reinfection) illness experimentally in previous histoplasma-infected animals. Yet many investigators dealing with histoplasmosis remain firmly convinced that reinfections histoplasmosis is a real entity, based on circumstantial evidence."

[¶23] In answer to question " number three," he wrote that " it takes minimal exposure to acquire histoplasmosis which is recognized as an extremely common and almost invariably benign infection." Dr. Bruyntjens wrote that " a large majority of pulmonary or infectious disease specialists would have elected not even to treat the patient." He wrote, " The history of smoking with a near normal pulmonary function test with exposure in a benign condition like histoplasmosis, is a concern due to the smoking not the histoplasmosis."

[¶24] On January 28, 2011, Dr. Norris wrote another " Dear Employer" letter stating that the claimant was unable to work " due to fungal lung infection that causes extreme fatigue, shortness of breath and pain." Dr. Norris wrote that the claimant's recovery would take a long time and was unpredictable and that he would be reevaluated in 60 days.

[¶25] The claimant testified that, at the time of the arbitration hearing, the histoplasmosis was still affecting his lung functioning. He testified that he could not walk for long periods of time, had weakness in his arms and legs, could not sit or stand for very long, and had headaches, had back pains, and coughed a lot. He stated that he had quit smoking and had ...

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