Bernardoni v. The Industrial Commission, No. 04-MR-108 (IL 12/6/2005)
| Decision Date | 06 December 2005 |
| Docket Number | No. 04-MR-108.,04-MR-108. |
| Court | Illinois Supreme Court |
| Parties | ARLENE BERNARDONI, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Huntsman Chemical Company, Appellee). |
Appeal from the Circuit Court of La Salle County, Honorable Robert L. Carter, Judge, Presiding.
I. INTRODUCTION
Alleging that she developed respiratory illness and chemical sensitivity while working for employer, Huntsman Chemical Company, claimant, Arlene Bernardoni, filed an application for adjustment of claim under the Workers' Occupational Diseases Act (Act) (820 ILCS 310/1 et seq. (West 1994)). An arbitrator awarded claimant $13,309 in medical expenses and found that she was permanently and totally disabled. The Industrial Commission1 (Commission) disagreed with the arbitrator and found instead that claimant's smoking caused her condition, which was temporarily aggravated by a work-related exposure to a cleaning agent. It awarded claimant 12 3/7 weeks of temporary total disability (TTD) benefits and $1,010.57 in medical expenses. In ruling, the Commission refused to consider claimant's expert evidence on multiple chemical sensitivity (MCS). On judicial review, the trial court confirmed the Commission's decision.
On appeal, claimant argues that (1) the Commission erred in finding that the testimony of her treating physician about MCS was inadmissible because the diagnosis of MCS is not sufficiently established to have obtained general acceptance in the medical community; and (2) the Commission's decision that claimant's condition of ill-being, was caused by her smoking and not her exposure to chemicals while working in employer's plant is against the manifest weight of the evidence. We affirm.
II. BACKGROUND
Filed in 1995, the original application for adjustment of claim alleged that, on February 22, 1994, "[w]hile cleaning carpet, [claimant] was exposed to chemicals resulting in injury to whole body." In 1998, claimant amended the application to allege that she was "also exposed to other chemicals during the 14 years of employment by" employer.2 As a result of the exposures, claimant developed chemical sensitivity.
The arbitration hearing took place on April 17, 2002, and May 23, 2002. Claimant testified that she began smoking cigarettes in 1964, at age 21. She smoked approximately one pack per day until she stopped smoking regularly in October 1994. Twice, she resumed smoking for short periods, two-and-a-half months and three months, but quit. In July 1978, claimant began working for American Hoechst, employer's predecessor in interest. Employer purchased the plant in 1986, at which time claimant was laid off. Claimant returned to work for employer in 1990. While she was laid off, claimant worked as a dental hygienist and a waitress. She returned to work for employer because she could earn more money.
When she began working for American Hoechst in 1978, Claimant worked as an extrusion operator for less than six months. That position involved mixing batches of chemicals and pouring them into the extruder. During most of her tenure, claimant worked as a poly operator in building 4 on the plant site. She worked significant overtime in this position, which involved the manufacture of polysterene pellets. Claimant spent part of her time in the control room using a computer. Also, her duties involved adding chemicals, including styrene monomers, which is a catalyst, and flame retardants to the batch tanks. Claimant identified another chemical, pentane, that also was present in the tanks. Every 30 minutes, claimant had to go onto the production floor to take samples of the batches. This involved opening the sample port and dipping a test tube attached to a stick into the batch. The chemical mixture was hot, approximately 240 degrees, and "steam and fumes just boiled out." The fumes had an odor similar to that of a petroleum product. The sample port was kept open no longer than five minutes. When the batch was complete, claimant dumped the contents of the tanks into a wash basin. Claimant testified that, during the time that she was exposed to the contents of the tanks, she experienced burning in her eyes, nose, and lungs; coughing; and difficulty breathing. While testing, claimant wore goggles but had no breathing apparatus.
Claimant testified that she also came into contact with toulene, which was an acetone used to clean the tanks. While using this product, claimant experienced burning in her throat and chest pain that sometimes lasted for days.
The parties stipulated to the admission of material safety data sheets (MSDS) listing the chemicals that were used in employer's manufacturing process during the periods claimant worked for employer. Among the chemicals on the list were styrene monomer, toulene, polysterene, and pentane. The MSDS revealed the following. Inhaling styrene monomer fumes may cause irritation of the respiratory tract and occupational asthma. Overexposure to styrene vapor may cause headache, dizziness, lack of coordination, fatigue, and nausea. Inhalation of high concentrations of toulene may cause headache and dizziness. Inhaling toulene vapor may cause respiratory tract irritation. Inhaling polysterene vapor may cause dizziness, drowsiness, loss of coordination, headache, nausea, and vomiting. Inhalation of vapors or mist may cause irritation of the respiratory tract and delayed lung injury. Inhaling pentane may cause dizziness or difficulty breathing if inhaled. Potential health hazzards are irritation of the respiratory tract, pneumonia, pulmonary edema, and central nervous system depression.
Claimant testified that, between 1978 and 1986, she suffered from colds and bronchitis frequently and constantly felt extremely tired. When she returned to work at the plant in 1990, claimant worked again as a poly operator and experienced the same symptoms. She felt tired and weak and became sick while cleaning her home or filling her car with gasoline. The odor of a permanent marker or pesticides bothered her. She frequently experienced deep coughing and headaches.
Claimant began treating with Dr. Ramon Inciong, her primary care physician, in December 1992. She complained of head congestion and head, chest, and muscle aches. She reported coughing up green sputum. In June 1993, Dr. Inciong saw claimant and reported that claimant's lungs were clear and there were no signs of wheezing. His impression was acute bronchitis. He prescribed antibiotics and cough medicine.
In 1993, claimant transferred to a building maintenance job that paid less than what she made as a poly operator. She worked 40 hours per week. In her new position, claimant spent about five hours per shift in building 4 and the remainder of her time in employer's office building next to the plant. While cleaning in building 4, claimant experienced burning in her nose and lungs.
On February 22, 1994, claimant was using a 3M spot cleaning product to clean carpeting at work. Shortly thereafter, she began coughing and experienced headache, nausea, weakness, and a sore nose and throat. The MSDS for this product stated that overexposure to vapors may cause respiratory system irritation and light-headedness.
On March 8, 1994, claimant saw Dr. Inciong and reported the carpet cleaning incident. She complained of unproductive coughing and pain in her lungs. Dr. Inciong's impression was asthmatic bronchitis. He noted, Claimant saw Dr. Inciong again on March 22, 1994, and reported that her symptoms had not improved. Dr. Inciong noted that He diagnosed early chronic bronchitis, prescribed steroids and inhalers, recommended that claimant stop smoking, and referred claimant to Dr. Bernard Taylor, a pulmonologist.
On March 23, 1994, claimant saw Dr. Taylor. A chest X ray was clear, and pulmonary function tests revealed a reduced FEV1. Dr. Taylor's impression was that the cleaning agent may have caused some type of obstruction, possibly asthma. On April 15, 1994, claimant underwent methacholine challenge and pulmonary function tests. The results were consistent with reversible airways disease and mild obstructive lung disease. On April 27, 1994, claimant saw Dr. Taylor and complained of shortness of breath and coughing. Dr. Taylor reviewed claimant's test results and diagnosed bronchospastic disease. He mentioned the possibility of claimant finding a different job. He instructed claimant to taper her use of Prednisone and prescribed Proventil and Atrovent inhalers.
On May 25, 1994, Dr. Ricardo Calderon reviewed claimant's medical records at employer's request. He opined that claimant suffered from a mild underlying pulmonary obstructive disease that was probably secondary to her smoking. Claimant appeared to suffer an exacerbation of her underlying disease when exposed to the cleaning solutions. According to Dr. Calderon, claimant seemed "to have been treated appropriately for both the exacerbation as well as her underlying problems."
On June 23, 1994, Dr. Inciong reported that claimant's asthmatic bronchitis had fully resolved. In October 1994, claimant saw Dr. Inciong and complained of a cough that occasionally produced yellow sputum. An X ray taken on October 12, 1994, contained findings consistent with chronic obstructive pulmonary disease (COPD). Dr. Inciong diagnosed acute bronchitis and referred her to the Mayo Clinic.
On November 28, 1994, claimant saw Dr. Edward Rosenow of the Mayo Clinic. Dr. Rosenow diagnosed possible hyperreactive airways disease. In his report, Dr. Rosenow stated that he did not know how to answer...
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