General Cooperage Co. v. Industrial Comm'n

                              NO. 1-95-2002WC

                              IN THE
                              APPELLATE COURT OF ILLINOIS
                              FIRST DISTRICT
                              INDUSTRIAL COMMISSION DIVISION


GENERAL COOPERAGE CO.,             )    Appeal from
     Appellant,                    )    Circuit Court
v.                                 )    Cook County
THE INDUSTRIAL COMMISSION, et al.  )    No. 95L50207
(Jesse James Streeter, Appellee.)  )
                                   )    Honorable
                                   )    JoAnne Lanigan,
                                   )    Judge Presiding.




JUSTICE RARICK delivered the opinion of the court:
          Claimant, Jesse James Streeter, sought benefits under
the Workers' Occupational Diseases Act (Ill Rev. Stat. 1989, ch.
48, par. 172.36) for an alleged occupational disease resulting
from or aggravated by his employment with General Cooperage,
employer.  The arbitrator awarded claimant temporary total
benefits covering two separate periods of lost time in 1985 and
1988 and 25% of a man as a whole.  On review, the Industrial
Commission (Commission), in a split decision, reversed the award
finding claimant failed to prove the requisite causal connection. 
The circuit court of Cook County, in turn, reversed the decision
of the Commission and remanded the matter, instructing the
Commission to make express findings as to the date of disability
and the amount of temporary total disability.  The court also
instructed the Commission to determine if claimant was entitled
to recover permanent disability benefits.  On remand, the
Commission denied benefits in connection with the 1985 claim on
the basis of the statute of limitations.  With respect to the
later claim, the Commission adopted the arbitrator's original
award.  The circuit court confirmed the Commission's decision on
remand.  Employer appeals seeking reinstatement of the
Commission's initial decision contending the circuit court erred
in reversing the Commission's finding of no causal connection
between claimant's employment and his condition of ill-being.
          Claimant was born in 1950 and suffered from childhood
asthma through the age of three.  In 1968, claimant began working
for employer on the loading docks.  Employer manufactures fiber
drums for storage of various substances.  After three months,
claimant moved to Mississippi and worked as a carpenter building
mobile homes.  In 1971, claimant returned to Illinois and went
back to work for employer.  Over the next two years, claimant
worked on the loading docks and in the warehouse.  In 1974,
claimant was transferred inside the plant and assigned to work at
the winder machine gluing paper together.  Claimant remained at
this job for the next 15 years.  Claimant testified that at the
end of his work day, his clothes would be covered with fibers,
dust and glue.  His nostrils and lungs were also filled with the
same debris.  Claimant was not provided with goggles, respirator
or protective clothing or shoes, and ventilation consisted of
exhaust fans which did not move the air very well.  Claimant also
reported that spray painting was conducted only 15 feet away from
his station, and that the testing operation, involving numerous
solvents, was located 20 feet away.          
          In 1974, claimant sought treatment with Dr. Munoz for
wheezing and weight loss.  Claimant noticed he began wheezing two
to three hours after arriving at work with the condition
worsening as the day wore on.  Not until he went home would
claimant experience any relief from the wheezing.  He also
noticed he was starting to cough up a dark brownish-colored
mucous.    Dr. Munoz prescribed an inhaler, and in 1977, claimant
underwent surgery on his sinuses.  At some point, Dr. Munoz moved
to a new office and claimant received various medications for his
condition through Cook County Hospital.
          In 1985, claimant was hospitalized for a week with
status asthmaticus or the uncontrolled state of wheezing and
shortness of breath.  Claimant again sought treatment from Dr.
Munoz who kept claimant off work for some five months after his
release from the hospital.  Dr. Munoz also suggested that
claimant, upon his return to work, should not be exposed to fumes
which could aggravate his condition.  Employer, however,
reassigned claimant to the winder machine.
          In 1988, claimant was again hospitalized for the same
condition.  This time claimant lost nine months of work.  Upon
his return to employer, claimant was transferred back to the
loading dock and his pay was cut by one-third.  Claimant,
however, became ill again on April 24, 1989.  Employer terminated
claimant's employment three days later because of his recurring
health problems and absences from work.  Some two years after his
last day of employment with employer, claimant testified he still
experienced periodic wheezing although the wheezing has
continually gotten better.
          Dr. Jeffrey Coe, a doctor specializing in occupational
medicine, examined claimant in November 1989 at the request of
claimant's attorney.  Dr. Coe opined claimant suffered from
intrinsic asthma aggravated by the working conditions at
employer's plant.  After noting that the material safety data
sheets for the various chemicals used at employer's plant all
stated long-term exposure to the products could cause chronic
respiratory problems, Dr. Coe believed claimant could never work
with "pulmonary irritants" again.  One of employer's experts
certified in internal medicine and pulmonary diseases found no
relation between claimant's asthma and any specific work exposure
or activity and further determined claimant could work full-duty
with no restrictions.  The fact claimant had not been treated for
asthma since 1989 also indicated, according to employer's expert,
that claimant had no permanent injury from any prior asthma
episodes.
          The ultimate question here was whether claimant
suffered a compensable industrial loss.  Employer contends that
claimant was born with asthma and that this asthma was not
triggered by work-related factors but rather by seasonal or other
factors outside the work environment.  Claimant believes
employer's working conditions aggravated or caused his numerous
chemical sensitivities thereby prohibiting him from future
employment anywhere he might be exposed to pulmonary irritants. 
Claimant further believes the repeated exposures have also caused
him to suffer from a heightened sensitivity to pollens and cold
air.  The question whether claimant's condition was caused by or
aggravated by the exposure to chemicals and fibers claimant
confronted at his employment is a question of fact for the
Commission to determine.  See Downs v. Industrial Comm'n, 143
Ill. App. 3d 383, 388-89, 493 N.E.2d 595, 599 (5th Dist. 1986). 
It is the function of the Commission to resolve disputed
questions of fact, to draw permissible inferences and to decide
which of conflicting medical views is to be accepted.  Beeler v.
Industrial Comm'n, 179 Ill. App. 3d 463, 466, 534 N.E.2d 408, 410
(5th Dist. 1989); Smith v. Industrial Comm'n, 161 Ill. App. 3d
383, 391, 512 N.E.2d 712, 716 (4th Dist. 1987).  We, sitting as a
reviewing court, are not to disturb the decision of the
Commission unless such decision is contrary to the manifest
weight of the evidence.  Beeler, 179 Ill. App. 3d at 466, 534 N.E.2d  at 410.  In this instance, we have two Commission
decisions.  The first decision found no causal connection; the
second awarded benefits.  Given the circumstances presented, we
must affirm the second decision.  While we are reluctant to set
aside a Commission's decision on a factual question, we must not
hesitate to do so when the clearly evident, plain and
indisputable weight of the evidence compels an apparent, opposite
conclusion.  See Montgomery Elevator Co. v. Industrial Comm'n,
244 Ill. App. 3d 563, 567, 613 N.E.2d 822, 825 (3d Dist. 1993).
          Claimant suffered from childhood asthma through the age
of three but had no other complications as a result of this
condition until he began working for employer.  Within a year of
working at the winding machine claimant began wheezing at work
and coughing up a brownish-colored mucous.  He came home every
day covered with glue and fibers, and his nostrils and lungs were
filled with the same debris.  Claimant wore no protective
clothing or goggles or respirator while doing his job.  Yet, each
of the material safety data sheets for the various chemicals used
at employer's plant stated that long-term exposure to the
products could cause chronic respiratory problems, particularly
for those individuals with underlying bronchial asthma, and
therefore recommended the use of respirators or other protective
devices.  Instead of quitting, claimant continued to work for
employer until he required hospitalization for status asthmaticus
in 1985.  Claimant remained off work for five months.  Against
doctor's orders, claimant was reassigned to the winder machine
upon his return to work.  In 1988, claimant again required
hospitalization for the same condition.  This time, however,
claimant remained off work for nine months.  Upon his return he
was moved back to the loading docks, yet the irritants still
affected him requiring a third period of recuperation in 1989. 
Claimant's condition progressively worsened over the years to the
point he developed chronic lung changes including a heightened
sensitivity to cold air and pollens.  Dr. Coe recommended that
claimant never be exposed to inhaled pulmonary irritants again. 
A compensable injury will be found upon a showing that a
preexisting illness was aggravated or accelerated by conditions
in the workplace.  Beeler, 179 Ill. App. 3d at 466, 534 N.E.2d  at
411; Smith, 161 Ill. App. 3d at 391-92, 512 N.E.2d  at 717.  It is
evident here that the various substances used at employer's plant
aggravated claimant's condition to the point he has become highly
sensitized to all pulmonary irritants and has suffered permanent
lung changes.  As a result of his employment, claimant now
suffers an occupational disease.  To find otherwise, especially
based on the somewhat misleading testimony of employer's experts,
would be contrary to the manifest weight of the evidence.  None
of employer's experts were aware to what extent claimant was
exposed to the various substances, and in some instances, to what
substances he was even exposed.
          Accordingly, we affirm the decision of the circuit
court of Cook County confirming the decision of the Commission on
remand.
COLWELL and HOLDRIDGE, JJ., concur.
     PRESIDING JUSTICE McCULLOUGH, dissenting; RAKOWSKI, J.,
joins:
     I respectfully disagree.  The first decision of the
Commission was not against the manifest weight of the evidence.
     In its first decision, the Commission properly noted that
there was competing and conflicting expert medical testimony. 
The Commission refers to the testimony of Dr. Buckingham.  He
found:    "Pulmonary function testing was essentially
          normal.  ***[T]here was no expression of the
          disease present at the examination, and there
          was nothing to indicate that Petitioner could
          not return to his normal work activities. 
          There was no indication present of any perma-
          nent disability."  
The Commission also found that Dr. McFee "opined that there was
no evidence to indicate that Respondent's plant conditions were a
factor in the aggravation or trigger of Petitioner's asthma." 
The Commission refers also to Dr. Aaronson's conclusions that
claimant's condition is "unrelated to his work exposure,"
"[p]ulmonary function studies were essentially normal," and
"Petitioner should be allowed to return to work."
     Although the Commission in its first decision could, as
fact-finder, have found in favor of the claimant, it did not. 
The first decision should be reinstated.