Zupan v. Industrial Commission

491 N.E.2d 753, 142 Ill. App. 3d 127, 96 Ill. Dec. 474, 1986 Ill. App. LEXIS 2035
CourtAppellate Court of Illinois
DecidedFebruary 13, 1986
Docket5-84-0326WC
StatusPublished
Cited by5 cases

This text of 491 N.E.2d 753 (Zupan v. Industrial Commission) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Zupan v. Industrial Commission, 491 N.E.2d 753, 142 Ill. App. 3d 127, 96 Ill. Dec. 474, 1986 Ill. App. LEXIS 2035 (Ill. Ct. App. 1986).

Opinions

JUSTICE BARRY

delivered the opinion of the court:

The employer, National Steel, Granite City Division (National), appeals from a judgment of the circuit court reversing the Industrial Commission’s denial of benefits to the claimant, Paul Zupan. Zupan filed a claim for benefits under the Occupational Diseases Act (Ill. Rev. Stat. 1971, ch. 48, par. 172.36 et seq.) (hereafter the Act). Zupan alleged in his claim that he had contracted asbestosis as a result of the conditions of his employment.

The claimant was a bricklayer for National from 1951 to 1973. He would lay insulation bricks around furnaces and pipes. In 1966 or 67, the claimant had a routine chest X ray taken at National’s plant. As a result of the X ray, National sent him to Dr. Lamb, a lung specialist. The claimant thereafter had a chest X ray taken every six months, until 1972. In 1972, the claimant collapsed while at work because of an inability to breathe. He never returned to work at the plant.

The claimant was referred to Dr. Narscius following Dr. Lamb’s death. The claimant was hospitalized in April 1973. At this time, he was diagnosed as suffering from myocardial ischemia and pulmonary fibrosis. The claimant’s employment was terminated in April of 1973 and he was placed on a disability pension. Zupan filed his claim for benefits on April 17,1974.

In 1976, the claimant was referred to. Dr. S. Mohyuddin, a lung specialist. Mohyuddin confirmed the diagnosis of pulmonary fibrosis and obstructive lung disease. When the claimant consulted Mohyuddin again in 1978, Mohyuddin obtained a new medical history. It was during this history that the claimant first included a history of exposure to asbestos.

In the stipulation sheet, National disputed whether the claimant had been exposed to an occupational disease and causation. The claimant’s first hearing before an arbitrator was held July 23, 1979, before arbitrator Boyd. The claimant had testified on direct examination when Boyd went off the record. The claimant was the only witness to testify that day. The hearing was never resumed. On December 20, 1979, Boyd issued an order finding that the claimant had been exposed to the hazards of an occupational disease but denying benefits. The claimant appealed. National requested a new hearing based on its lack of opportunity to cross-examine the claimant.

A new hearing was held on October 6, 1980, before arbitrator Duty. At the hearing, the claimant testified that during his employment he had used bricks and other materials which carried the Johns-Manville label and which he believed were labeled as and made of asbestos. The claimant would saw the bricks to make them fit around the plant structures. Cutting the brick caused substantial amounts of dust to enter the air. He sometimes worked in an enclosed space. The only protective clothing he wore were goggles and, during the later years, a cloth mask. The claimant testified that he also worked with “thermoflake.” National, according to the claimant, subsequently replaced some of the asbestos materials with vermiculite.

The claimant testified that as a result of his illness, at the time of arbitration, he could not climb a flight of stairs or walk more than one block. He remained in bed for up to 20 hours a day.

The claimant introduced medical evidence in the form of a letter and an evidence deposition of Dr. Mohyuddin. Dr. Mohyuddin testified that given the claimant’s stated history of exposure to asbestos, it was more than likely that the exposure had caused the claimant’s illness. On cross-examination, Mohyuddin stated that there was a “good cause and effect relationship.” On redirect, Mohyuddin testified that pulmonary fibrosis cannot be identified with one specific cause. Finally, he opined that the claimant’s condition was permanent and could only worsen.

Following the introduction of this evidence, National presented the testimony of Gilbert Moss, a superintendent of the brick department for National from 1967 on, and Walter Creason, the salesman for one of National’s suppliers of brick. Both men testified that asbestos products were not used in the plant from 1967 to 1973 to their knowledge. Creason identified one insulating brick used at National and testified that the brick contained no asbestos.

In rebuttal, the claimant testified that the brick identified by Creason was not the only insulating brick used. The bricks which the claimant believed were made of asbestos were a different type of brick used in addition to the one described by Creason.

Arbitrator Duty issued his decision on December 19, 1980, denying benefits. The arbitrator found that the claimant was exposed to the hazards of an occupational disease but that the evidence failed to prove that he contracted an occupational disease. This decision was appealed to the Commission.

At the hearing before the Commissioner, the claimant attempted to introduce the evidence depositions of five bricklayers, all employees at National. Each employee testified that he observed materials used in bricklaying that were made of asbestos. One of the five employees, Harry J. Brandt, also testified in his evidence deposition that the heat-protective clothing worn by the bricklayers contained asbestos. Arthur Evenden, another of the employees, testified that at times the dust from cutting the brick was so dense that it was difficult to see. Evenden stated he worked with the claimant under such conditions.

The introduction of the five depositions was objected to by National. The Commissioner sustained National’s objection but allowed the depositions to come in as an offer of proof.

Following oral argument, the Commission affirmed arbitrator Duty’s decision. The Commission noted that the 1971 Act excluded ordinary diseases of life to which the public was exposed. While asbestosis was specifically excluded from the category of ordinary diseases, the Commission continued, no doctor had diagnosed the claimant’s condition as asbestosis. Therefore, the claimant’s illness was not an occupational disease. The Commission found that the testimony of the five bricklayers was properly excluded for failure to show good cause for not producing it at arbitration. The Commission concluded, however, that its decision would not have been changed had the testimony been admitted since the evidence had no bearing on whether the claimant suffered from an occupational disease. The claimant appealed.

In a memorandum order, the circuit court held that the Commission’s decision was contrary to the manifest weight of the evidence and that the testimony presented by National was “patently erroneous.” National appeals from this order reversing the Commission.

National raises three issues on appeal. National argues first that the circuit court erred in finding the Commission’s decision was contrary to the manifest weight of the evidence. In a related argument, National asserts that as a matter of law, the aggravation of a pre-existing disease was not compensable under the Act at the time of the claimant’s exposure. As its final issue, National argues that the Commission properly excluded the evidence depositions of the claimant’s co-workers.

The Act, prior to amendment in 1975, provided, in relevant part:

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Zupan v. Industrial Commission
491 N.E.2d 753 (Appellate Court of Illinois, 1986)

Cite This Page — Counsel Stack

Bluebook (online)
491 N.E.2d 753, 142 Ill. App. 3d 127, 96 Ill. Dec. 474, 1986 Ill. App. LEXIS 2035, Counsel Stack Legal Research, https://law.counselstack.com/opinion/zupan-v-industrial-commission-illappct-1986.