FILED
2016 IL App (4th) 150088WC July 21, 2016
Carla Bender
th 4 District Appellate
NO. 4-15-0088WC
Court, IL
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
WORKERS' COMPENSATION COMMISSION DIVISION
MICHAEL K. DURBIN ) Appeal from
) Circuit Court of
Appellant, ) Macon County
v. ) No. 14MR601
THE ILLINOIS WORKERS' COMPENSATION ) COMMISSION et al. (Archer Daniels Midland, ) Honorable
Appellees). ) Albert G. Webber,
) Judge Presiding.
)
JUSTICE HARRIS delivered the judgment of the court, with opinion. Presiding Justice Holdridge and Justices Hoffman, Hudson, and Stewart concurred in the judgment and opinion.
OPINION
¶1 On October 15, 2004, claimant, Michael K. Durbin, filed an application for
adjustment of claim pursuant to the Workers' Occupational Diseases Act (Act) (820 ILCS 310/1
to 27 (West 2004)), seeking benefits from the employer, Archer Daniels Midland. (We note,
however, the application for adjustment of claim erroneously reflected it was brought pursuant to
the Workers' Compensation Act.) He alleged to have suffered injury to his lungs in the form of
chronic obstructive pulmonary disease (COPD) due to exposure to irritants, and he listed the date
of injury as June 11, 2003.
¶2 Following a hearing, the arbitrator found that claimant failed to prove an
occupational disease caused by workplace exposure and denied him benefits under the Act. ¶3 On review, the Illinois Workers' Compensation Commission (Commission)
affirmed and adopted the decision of the arbitrator. On judicial review, the circuit court of
Macon County confirmed the Commission's decision.
¶4 On appeal, claimant argues the Commission erred in (1) barring the causation
opinion of his treating physician pursuant to Illinois Rule of Evidence 702 (eff. Jan. 1, 2011) and
(2) finding that he failed to prove an occupational disease caused by workplace exposure.
¶5 We affirm.
¶6 I. BACKGROUND
¶7 The following evidence relevant to the disposition of this appeal was elicited at
the March 6, 2013, arbitration hearing.
¶8 At the time of arbitration, claimant was 59 years old. At the time of his retirement
in 2003 at the age of 48, claimant had worked for the employer for approximately 30 years.
According to claimant, he had been exposed to a butter flavoring ingredient that contained the
chemical diacetyl over a period of 20 years while working for the employer. Claimant testified
that as a "pumper loader operator" he was exposed to diacetyl on many occasions, including
when he uncapped buckets containing butter flavoring and carried and poured the buckets,
changed oil filters, cleaned spillage from the "tank farm" and the "remelt room" floors, cleaned
"combinators," and cleaned out sample buckets. In addition, claimant stated that he could smell
the butter flavoring throughout the plant.
¶9 On cross-examination, claimant testified that he did not know whether diacetyl
was used in all the butter flavorings he had contact with and he had no knowledge of the amount
of diacetyl used in the butter flavoring. Claimant testified that his job duties did not require him
to enter the lab where the butter flavoring was mixed, and he agreed that, with the exception of
-2 opening the lids and pouring the flavoring into the tanks, the process at the plant was a "closed
process" where the tanks were sealed and the additives were added through small ports.
¶ 10 Claimant denied having told Dr. Allen Parmet, who conducted an independent
medical examination of claimant in July 2006, that he typically poured 12 to 15 buckets a day of
butter flavoring that contained diacetyl into the tanks. According to claimant, he may have told
Dr. Parmet that he poured 12 to 15 buckets per week. Batch records introduced by the employer
showed that during his last 16 months of employment, claimant added butter flavoring to the
tanks on 26 occasions. Although claimant stated it "took his breath away" when he opened the
buckets of butter flavoring, he acknowledged never having spoken with the employer about the
smell. Claimant testified he did not experience burning eyes due to the buttery odor, but he did
experience burning nasal passages. However, he never reported this symptom to his treating
physicians. Claimant admitted that during his deposition in a pending civil suit against the butter
flavor manufacturers, he testified he could not recall whether the butter flavoring had an odor.
¶ 11 Claimant testified that he first noticed problems with his lungs in 2000 or 2001
and began treatment for asthma. He acknowledged having been a smoker "[f]or a few years" and
that both his parents were smokers. His mother had been diagnosed with COPD and died at the
age of 53. It is unclear from the record whether claimant's mother died from emphysema or
stomach cancer. Claimant's father died from coronary disease at the age of 56. Claimant denied
having told a treating physician that he started smoking two packs a day at the age of 15. He
testified that he smoked his first cigarette when he was 15 years old, but he did not start smoking
on a regular basis until he was 27 years of age. At the time claimant quit smoking in 1997 or
1998, he was smoking one pack per day. Both claimant's first wife and current wife also
smoked; however, his current wife quit smoking at the same time as claimant.
-3 ¶ 12 Claimant testified that he now has a difficult time breathing when he exerts
himself, such as doing yard work or walking long distances—a problem he did not have before
his work exposure. He further stated that he can no longer ride a motorcycle "because the air
hitting me in the face takes my breath [away]" or water ski, and he is unable to play with his
grandchildren as often. Additionally, claimant is now unable to work on his car, paint cars,
garden, or keep his garage clean.
¶ 13 Brian Richardson testified he was the corporate safety and environmental
manager for Stratas Foods, a joint venture company started by the employer. In 1993, he was a
"whirl operator" in the whirl room where he made a butter flavoring product. Richardson had
been a pump loader like claimant and had personal knowledge of a pump loader's job duties.
According to Richardson, claimant's job duties as a pump loader would not have included any
duties in the whirl room or any duties with respect to cleaning the combinator—a task that would
have been completed by maintenance because it was a very detailed job. Richardson further
testified that the job of cleaning the remelt room and floor would have been done by a laborer,
not someone in claimant's position. Richardson stated that while claimant would have cleaned
oil filters, he would not have been exposed to diacetyl during that process because the butter
flavoring was too thick to run through the filters. According to Richardson, butter flavored oil
constituted approximately 2% to 3% of the employer's business.
¶ 14 On cross-examination, Richardson agreed that claimant's supervisors could have
had him perform some of the cleaning tasks that were typically completed by the laborers.
Richardson further testified that in November 2004, the National Institute for Occupational
Safety and Health (NIOSH) conducted an evaluation of the employer's plant looking for diacetyl
related health hazards. Following the evaluation, NIOSH recommended that employees wear
-4 organic vapor respirators. Thereafter, the employer provided its employees with the
recommended respirators until 2006 when the flavor companies reformulated their product to be
diacetyl free.
¶ 15 Kelly Singleton testified that she was employed as a lab technician with the
employer in 1995 and was promoted to lab supervisor in 1999. In 2004, she became the quality
assurance manager for Stratas Foods. As a lab technician, Singleton mixed the butter flavoring
in the lab, broke the seals on the buckets, and opened the bungs on the buckets prior to setting
the buckets outside the lab door to be picked up for delivery to the tanks by someone like
claimant. Singleton stated that when stainless steel buckets were used, it was common practice
to close the buckets with stainless steel lids to protect food integrity. Singleton testified that "[t]o
the best of [her] knowledge there was always a lid on it. That was a requirement." According to
Singleton, when diacetyl was mixed in with the butter flavoring, it accounted for less than 2% of
the mixture. Further, she stated that flavored oils were typically only used at the plant once a
week.
¶ 16 Kevin Swanson, the vice president of operations for Stratas Foods and the general
manager of the employer's packaging division, testified that he had worked in the employer's
packaging plant since 2004. According to Swanson, only 2% to 3% of the plant's total oil
production included butter flavorings containing diacetyl.
¶ 17 At arbitration, claimant introduced the evidence deposition of Dr. Donald
Gumprecht, taken July 19, 2011. Dr. Gumprecht testified he was a pulmonologist and had been
in practice for 32 years. Claimant had been referred to him for a second opinion regarding
claimant's lung disease.
¶ 18 Dr. Gumprecht first saw claimant on May 7, 2003, at which time claimant
-5 reported a history of asthma that "had been gradually getting worse." At that time, claimant
reported having been exposed to "various products" at the employer's plant, including "caustics,
*** soaps and grain dust, anhydrous ammonia, and that he did not wear a respirator." Following
his examination, Dr. Gumprecht diagnosed claimant with severe early onset COPD.
¶ 19 Dr. Gumprecht testified that upon learning claimant had been exposed to butter
flavoring that contained diacetyl, he was reminded of an article he read in the New England
Journal of Medicine titled "Clinical Bronchiolitis Obliterans in Workers at a Microwave-Popcorn
Plant," which found a causal connection between butter flavoring containing diacetyl used in
plants making microwave popcorn and bronchiolitis obliterans in workers who had been
exposed. The employer objected and moved to strike Dr. Gumprecht's testimony regarding the
article, asserting "[t]he article is not compliant as a basis pursuant to Illinois Rule of Evidence
702 to support a generally accepted scientific basis for the conclusions." Dr. Gumprecht then
testified that based on "other medical literature," including an editorial in the American Journal
of Respiratory and Critical Care Medicine titled "Occupational Bronchiolitis Obliterans
Masquerading as COPD," as well as unspecified studies on rats, there was no "real dispute" in
the medical community regarding whether butter flavoring containing diacetyl could cause lung
disease. Over repeated objections by the employer, Dr. Gumprecht testified that a general causal
connection existed between diacetyl exposure and lung disease.
¶ 20 Dr. Gumprecht declined to distinguish between whether claimant had COPD or
bronchiolitis obliterans at his deposition because "[b]oth are fixed obstructive lung diseases, and
in any one patient, it's very difficult to separate them." However, Dr. Gumprecht testified that he
"had no doubt [claimant] had popcorn flavoring lung disease." According to Dr. Gumprecht,
claimant told him he "had been working with flavorings basically from the 1980s to 2003, that he
-6 could smell the fumes, *** and that he was involved in mixing ***and he believes he was
exposed to diacetyl basically the whole time." Dr. Gumprecht further added that claimant did
not wear a respirator mask while he transported the buckets of butter flavoring and poured the
flavoring into the tanks. While Dr. Gumprecht acknowledged claimant's history of smoking
cigarettes could be a factor in his COPD, he did not believe smoking was the primary cause due
to the early age of onset and that claimant's lung function "deteriorated significantly" after he
stopped smoking. Dr. Gumprecht stated he also ruled out other causes of claimant's lung
disease, including asthma and genetic causes.
¶ 21 On cross-examination, Dr. Gumprecht agreed that three computerized
tomography (CT) scans of claimant's lungs, taken in July 2003 and February and October 2009,
exhibited generalized emphysema in both lungs, a condition commonly seen in smokers. Dr.
Gumprecht further agreed that diacetyl was not a common cause of fixed obstructive lung
disease and he had no knowledge regarding the levels of diacetyl that the popcorn plant workers
had been exposed to or whether they were exposed to the same product as claimant. Further, Dr.
Gumprecht admitted that he assumed most of the butter flavoring claimant was exposed to
contained diacetyl. The following colloquy ensued:
"Q. In terms of the opinions you're forming, are you
assuming that any exposure to diacetyl is sufficient to cause the
fixed obstructive lung disease?
A. I'm assuming that exposure to peak exposures would be
sufficient, because we do not know the low limit of safe exposure.
Q. And you don't know the peak exposure?
A. Correct; but it's smellable, and it's enough for me.
-7 Q. If you can smell it, it's a sufficient exposure?
A. I think you have to assume that.
Q. And you assume that until somebody proves the smell is
safe to you?
A. Correct."
¶ 22 The employer introduced the evidence deposition of Dr. Robert J. McCunney,
taken May 31, 2012. Dr. McCunney testified that he had been a physician for 35 years and that
he had been certified in and practiced occupational and environmental medicine for 30 years. He
explained that occupational and environmental medicine is a specialty that involves the
recognition and prevention of illnesses and injuries in both the occupational and general
environment. According to Dr. McCunney, "an occupational physician has to understand the
work environment and the exposures that may contribute to an illness [and] the various hazards
in the workplace or the hazards in the environment," while pulmonologists are generally not
trained in assessing workplace exposures.
¶ 23 Dr. McCunney testified that he was hired by the employer to review claimant's
medical history and to perform a records review. In addition to reviewing records, Dr.
McCunney conducted an independent medical examination of claimant and visited the
employer's plant to observe the work environment. Dr. McCunney had been an expert witness in
two other cases involving "flavoring-induced lung disease" in the three years preceding his
retention in this case.
¶ 24 In December 2011, Dr. McCunney diagnosed claimant with COPD "with some
evidence of reversibility of his lung function consistent with asthma." According to Dr.
McCunney, claimant's pulmonary function studies were "very consistent with his smoking
-8 history. In fact, they're typical." In Dr. McCunney's opinion, claimant's work at the employer's
plant "played no role in the development of his [COPD] condition." Instead, Dr. McCunney
attributed claimant's COPD to a combination of smoking, chronic asthma, obesity, and family
history.
¶ 25 Dr. McCunney acknowledged a link had been established between butter
flavoring containing diacetyl and bronchiolitis obliterans in workers employed at certain
microwave popcorn plants. However, based on his review of claimant's medical records,
diagnostic studies, imaging studies, and pulmonary function tests, Dr. McCunney concluded that
claimant did not have bronchiolitis obliterans. Dr. McCunney testified that none of claimant's
three high resolution CT examination reports revealed a mosaic pattern that he would have
expected to see in a patient suffering from bronchiolitis obliterans. In addition, Dr. McCunney
explained that bronchiolitis obliterans is a fixed obstructive lung disease, whereas claimant's
pulmonary function studies showed evidence of reversibility. Further, Dr. McCunney testified if
diacetyl played a causal role in claimant's lung condition, he would have expected to see
diminished pulmonary function during claimant's employment; however, claimant's pulmonary
function studies showed no change between 1995 and 2003.
¶ 26 Dr. McCunney also distinguished between the level of diacetyl exposure
experienced at microwave popcorn plants and the employer's plant. Specifically, he testified that
the tanks in microwave popcorn factories are not sealed like the tanks at the employer's plant and
that "the proportion of flavorings relative to the amount of oil in the tanks is much lower in the
[employer's] plants." He also noted the frequency of potential exposure at the employer's plant
was limited to once or twice per week at most and only when the flavoring was poured into the
tanks. On the other hand, quoting from his report, Dr. McCunney testified as follows:
-9 " 'In most large microwave popcorn plants, workers who develop
bronchiolitis obliterans had poured flavorings into open tanks
several times per work shift, reflective of higher exposures in that
industry, in comparison to [the employer] which manufactures
vegetable oils predominately. Based on my discussions with plant
personnel during my site visit, less than five percent of the product
manufactured at the facility used butter flavorings.' "
He continued as follows:
" 'Since the top of the tanks were otherwise sealed [at the
employer's plant], aside from brief periods of pouring the five-
gallon [container], opportunity for significant chronic exposure
was limited, if present at all. Note that the NIOSH measurements
of diacetyl prior to pouring the five-gallon container was zero.
In summary, the NIOSH evaluation of the [employer's]
plant in Decatur indicates that the potential for exposure to butter
flavorings and the corresponding risk of developing a specific lung
disease, known as bronchiolitis obliterans is not present and finds
no support by comparison to microwave popcorn plants.' "
Dr. McCunney further explained that NIOSH measured the levels of diacetyl at the employer's
plant as the butter flavoring was poured from the five-gallon container into the tank at 0.07 parts
per million. According to Dr. McCunney, this measurement was 450 times lower than the levels
measured at the microwave popcorn plant.
¶ 27 Dr. McCunney criticized Dr. Gumprecht's opinion that the mere smell of butter
- 10 flavoring was enough exposure to cause claimant's lung condition, noting that Dr. Gumprecht's
theory failed to distinguish between an odor threshold and a toxic threshold. According to Dr.
McCunney, based on studies conducted at the microwave popcorn plants, "[t]he odor threshold
of diacetyl is considerably lower than the toxic threshold." Specifically, he noted the odor
threshold of diacetyl was 7000 times lower than the toxic levels associated with bronchiolitis
obliterans found in the microwave popcorn industry. Dr. McCunney further criticized Dr.
Gumprecht's opinion that the smell of the popcorn flavoring could be inhaled deep into the lungs,
explaining that diacetyl is a water-soluble compound that is "impacted by the upper respiratory
system which *** means the eyes, nose and mouth," whereas "fat-soluble substances can get
deeper into the lungs." Lastly, Dr. McCunney criticized Dr. Gumprecht's reliance on an editorial
to form his causation opinion, noting "it is not customary scientific practice to refer to an
editorial to support causality assessments. Customarily, the original study should be cited."
According to Dr. McCunney, a link between diacetyl exposure and COPD has not been generally
accepted in the medical community.
¶ 28 On May 9, 2013, the arbitrator issued his decision. As stated, he found that
claimant failed to prove an occupational disease caused by workplace exposure. Accordingly, he
denied claimant benefits under the Act. On June 30, 2014, the Commission affirmed and
adopted the arbitrator's decision. On January 12, 2015, the circuit court of Macon County
confirmed the Commission's decision.
¶ 29 This appeal followed.
¶ 30 II. ANALYSIS
¶ 31 On appeal, claimant argues that the Commission erred in (1) barring Dr.
Gumprecht's causation opinion pursuant to Illinois Rule of Evidence 702 (eff. Jan. 1, 2011) and
- 11 (2) finding that he failed to prove an occupational disease caused by workplace exposure.
¶ 32 Initially, we note the record is unclear regarding whether the arbitrator ruled Dr.
Gumprecht's causation opinion was inadmissible. Because the record is unclear, we will address
claimant's argument that Dr. Gumprecht's causation opinion withstood the employer's Rule 702
challenge.
¶ 33 "In Illinois, the admission of scientific evidence is governed by the Frye standard
[citations] which has now been codified by the Illinois Rules of Evidence ***." In re Detention
of New, 2014 IL 116306, ¶ 25, 21 N.E.3d 406. See Frye v. United States, 293 F. 1013 (D.C. Cir.
1923). Rule 702 provides, in relevant part:
"Where an expert witness testifies to an opinion based on a new or
novel scientific methodology or principle, the proponent of the
opinion has the burden of showing the methodology or scientific
principle on which the opinion is based is sufficiently established
to have gained general acceptance in the particular field in which it
belongs." Ill. R. Evid. 702 (eff. Jan 1, 2011).
"The purpose of the Frye test is to exclude new or novel scientific evidence that undeservedly
creates 'a perception of certainty when the basis for the evidence or opinions is actually
invalid.' " Detention of New, 2014 IL 116306, ¶ 26, 21 N.E.3d 406 (quoting Donaldson v.
Central Illinois Public Service Co., 199 Ill. 2d 63, 78, 767 N.E.2d 314 (2002), abrogated on
other grounds by In re Commitment of Simons, 213 Ill. 2d 523, 530, 821 N.E.2d 1184, 1189
(2004)). We review de novo whether a methodology or principle is generally accepted in the
relevant scientific community. Detention of New, 2014 IL 116306, ¶ 26, 21 N.E.3d 406.
¶ 34 In determining whether an expert's opinion is admissible under Frye, our focus is
- 12 on whether the underlying method used to generate the expert's opinion is one that is reasonably
relied upon by the experts in the field. Donaldson, 199 Ill. 2d at 79, 767 N.E.2d at 325. "If the
underlying method used to generate an expert's opinion is reasonably relied upon by the experts
in the field, the fact finder may consider the opinion—despite the novelty of the conclusion
rendered by the expert." Id. at 77, 767 N.E.2d at 324.
¶ 35 We note the arbitrator here did not conduct a separate Frye hearing. However,
that does not impair our review. We noted the existence of similar circumstances in Bernardoni
v. Industrial Comm'n, 362 Ill. App. 3d 582, 594, 840 N.E.2d 300, 310 (2005):
"During a worker[s'] compensation arbitration hearing, most expert
testimony is received via evidence depositions. In most cases, it
would be impractical and inconsistent with the general nature of
worker[s'] compensation proceedings to require a separate Frye
hearing with live witnesses. Here, the arbitrator and the
Commission considered all of the expert deposition testimony and
the Frye standard and then ruled on the admissibility of claimant's
proposed expert testimony. *** The arbitrator and the
Commission considered all of the evidence relevant to the Frye
issue before ruling on the admissibility of [the expert's] testimony
and dealt with the issues they would have addressed had a separate
Frye hearing been held. Therefore, we believe that the procedure
employed here was appropriate."
¶ 36 After reviewing the record, we conclude Dr. Gumprecht's causation opinion is not
based on a scientific methodology or principle that has gained general acceptance in the relevant
- 13 scientific community, and it was therefore inadmissible under Frye and Rule 702. Dr.
Gumprecht's causation opinion was based fundamentally on two publications, only one of which
was peer-reviewed, regarding diacetyl exposure at microwave popcorn plants. In particular, Dr.
Gumprecht relied on an article published in the New England Journal of Medicine that,
according to him, concluded butter flavoring components, specifically diacetyl, caused
bronchiolitis obliterans in exposed workers. However, we note Dr. Gumprecht did not opine that
claimant suffered from bronchiolitis obliterans, and, therefore, the New England Journal of
Medicine article fails to support his causation opinion. Further, Dr. Gumprecht acknowledged he
did not even know whether claimant was exposed to the same injurious product used at the
microwave popcorn plants studied in the article. As pointed out by Dr. McCunney, the NIOSH
evaluation of the ADM plant in Decatur indicated there was no comparative risk to lung disease
vis-a-vis the microwave popcorn plant workers.
¶ 37 Next, Dr. Gumprecht cited an editorial published in the American Journal of
Respiratory and Critical Care Medicine that he noted was "getting toward the concept of general
acceptance." While this editorial was not a peer-reviewed article, Dr. Gumprecht relied heavily
on it. According to Dr. Gumprecht, the editorial concluded "bronchiolitis obliterans was simply
an outlier that made it possible to recognize that the exposure [to diacetyl] caused lung disease,
but that probably the majority of patients don't have just bronchiolitis obliterans, that it can cause
a more garden variety of COPD." As pointed out by Dr. McCunney, however, an editorial in a
medical journal is not the equivalent of a peer-reviewed article based upon medical studies. This
editorial was insufficient to serve as a basis for Dr. Gumprecht's causation opinion, as it was not
established to be the type of medical literature reasonably relied upon by experts in the field.
¶ 38 In addition, Dr. Gumprecht opined the mere smell of butter flavoring containing
- 14 diacetyl was evidence of sufficient exposure to cause claimant's lung disease. However, Dr.
Gumprecht acknowledged on cross-examination he had very little information regarding the
frequency of claimant's exposure to the butter-flavoring smell, the period of time in which
claimant might have been exposed to diacetyl-containing ingredients, and which butter-flavoring
ingredients used at the ADM plant in Decatur actually contained diacetyl. This final basis for
Dr. Gumprecht's causation opinion appears to be based solely on supposition. Dr. Gumprecht
identified nothing in the medical literature upon which he relied that would support the theory.
Further, Dr. Gumprecht's "smell theory" was roundly criticized by Dr. McCunney in his
testimony. Dr. McCunney explained the odor threshold of diacetyl was 7000 times lower than
the toxic levels associated with bronchiolitis obliterans found in the microwave popcorn plant
workers.
¶ 39 In short, Dr. Gumprecht's causation opinion was based on a speculative theory
and lacked support in the relevant scientific literature. While there may be evidence that
exposure to diacetyl can cause bronchiolitis obliterans, Dr. Gumprecht's leap to finding a causal
connection between diacetyl exposure and COPD is arguably supported only by an editorial, not
a peer-reviewed article, that, by his own admission was only "getting toward the concept of
general acceptance." We find claimant failed to establish Dr. Gumprecht's causation opinion was
based on a scientific methodology or principle which has gained acceptance in the relevant
scientific community. Accordingly, if indeed the arbitrator ruled Dr. Gumprecht's causation
opinion was inadmissible, we would agree with the ruling.
¶ 40 Claimant next argues that the Commission's finding he did not suffer an
occupational disease was against the manifest weight of the evidence.
¶ 41 "To recover compensation under the Act, a claimant must prove both that he or
- 15 she suffers from an occupational disease and that a causal connection exists between the disease
and his or her employment." Bernardoni, 362 Ill. App. 3d at 596, 840 N.E.2d at 312. An
occupational disease is defined as "a disease arising out of and in the course of the employment
or which has become aggravated and rendered disabling as a result of the exposure of the
employment. Such aggravation shall arise out of a risk peculiar to or increased by the
employment and not common to the general public." 820 ILCS 310/1(d) (West 2004).
¶ 42 When making its factual determinations, it is within the province of the
Commission to weigh the evidence and draw reasonable inferences therefrom. Freeman United
Coal Mining Co. v. Illinois Workers' Compensation Comm'n, 386 Ill. App. 3d 779, 782-83, 901
N.E.2d 906, 910 (2008). A reviewing court will not overturn a factual determination of the
Commission unless it is against the manifest weight of the evidence. Id. at 783, 901 N.E.2d at
910. A decision is against the manifest weight of the evidence only where the opposite
conclusion is apparent. St. Elizabeth's Hospital v. Workers' Compensation Comm'n, 371 Ill.
App. 3d 882, 887, 864 N.E.2d 266, 272 (2007).
¶ 43 As noted, claimant bore the burden of proving he suffered an occupational
disease. The only evidence presented by claimant, however, to support a finding of causation
between his exposure to diacetyl and his COPD diagnosis was the medical opinion of his treating
physician, Dr. Gumprecht—an opinion we find was inadmissible under Frye and Rule 702.
¶ 44 We further note the Commission found claimant was not a credible witness. The
record reflects claimant's testimony regarding his exposure to diacetyl was not consistent with
the evidence. For example, claimant told Dr. Parmet that he poured 12 to 15 buckets of butter
flavoring into the tanks per day. At arbitration, claimant stated he poured 12 to 15 buckets of
butter flavoring into the tanks per week. However, the employer introduced batch records that
- 16 showed claimant added butter flavoring to the tanks on only 26 dates during his last 16 months
of employment. Further, Richardson disputed claimant's testimony that he was regularly
exposed to diacetyl when he completed certain work tasks, including changing oil filters,
cleaning spillage from the floors, and cleaning the combinators. According to Richardson, the
butter flavoring was too thick to enter the oil filters and the other tasks would typically not have
been completed by someone in claimant's position. Further, despite claimant's claim that the
steel buckets containing butter flavoring were not always sealed with a lid, Singleton testified
that to her knowledge, "there was always a lid" to protect food integrity. Moreover, the record
shows that diacetyl was only used in 2% to 3% of the butter flavoring used at the employer's
plant and claimant had no knowledge of which butter flavoring he had contact with contained
diacetyl.
¶ 45 Next, the Commission found Dr. McCunney's medical opinions persuasive. We
find the record supports the Commission's decision. As noted, despite claimant's contention in
his brief, the record affirmatively shows that he was never diagnosed with bronchiolitis
obliterans, the occupational lung disease linked to prolonged exposure to diacetyl in microwave
popcorn plant employees. Rather, both Dr. Gumprecht and Dr. McCunney diagnosed claimant
with COPD. Although Dr. Gumprecht and Dr. McCunney agreed that a lung biopsy—which
was not done here—is required for a definite diagnosis of bronchiolitis obliterans, Dr.
McCunney found it notable that none of claimant's CT scans demonstrated the heterogeneous
mosaic pattern that he would expect to see in patients with bronchiolotis obliterans. Rather, Dr.
McCunney, who reviewed claimant's medical history, performed an independent medical
examination of claimant, and visited the employer's plant, attributed claimant's COPD to a
variety of factors, including his smoking history, asthma, obesity, and family history. Even Dr.
- 17 Gumprecht agreed that claimant's CT scans showed generalized emphysema commonly seen in
smokers.
¶ 46 Based on the above, claimant failed to show that he suffered an occupational
disease. Accordingly, the Commission's finding on this issue was not against the manifest
weight of the evidence.
¶ 47 III. CONCLUSION
¶ 48 For the reasons stated, we affirm the circuit court's judgment confirming the
Commission's decision.
¶ 49 Affirmed.
- 18