Ferguson & Lange Foundries, Inc. v. Indus. Comm'n

• Decision Date: 23 September 1942
• Docket Number: No. 26467.,26467.
• Parties: FERGUSON & LANGE FOUNDRIES, Inc., et al. v. INDUSTRIAL COMMISSION et al.
• Court: Illinois Supreme Court

380 Ill. 185

43 N.E.2d 684

FERGUSON & LANGE FOUNDRIES, Inc., et al.

v.INDUSTRIAL COMMISSION et al.

No. 26467.

Supreme Court of Illinois.

June 11, 1942.

As Modified on Denial of Rehearing Sept. 23, 1942.

Error to Circuit Court, Cook County; John J. Wallace, Judge.

Proceeding under the Workmen's Occupational Diseases Act, Smith-Hurd Stats. c. 48, § 172.1 et seq. by Frank Lavell, employee, opposed by Ferguson & Lange Foundries, Inc., employer, and the Founders Mutual Casualty Company, insurance carrier. An award of the Industrial Commission allowing compensation was set aside by the Circuit Court, and the employee brings error.

Judgment of circuit court affirmed.

MURPHY, C. J., dissenting.Augustine J. Bowe and William J. Bowe, both of Chicago (John D. Casey, of Chicago, of counsel), for plaintiff in error.

Angerstein & Angerstein, of Chicago, for defendant in error.

WILSON, Justice.

Frank Lavell, a core maker, made a claim for compensation from his employer, the Ferguson & Lange Foundries, Inc., for disablement claimed to have been caused by silicosis to which he was last exposed while in such employment. The insurance carrier, the Founders Mutual Casualty Company, was also made a party to the proceeding. The arbitrator and the Industrial Commission allowed compensation, and based it on the difference in wages of $42 per week earned while in such employ and wages of $17 per week received as a clerk in a grocery store after leaving the foundry. The circuit court of Cook county set aside the award of the commission and found that it was against the manifest weight of the evidence, and that Lavell had failed to establish that he had sustained an occupational disease and a disablement arising out of and in the course of his employment, within the contemplation of the Workmen's Occupational Diseases Act. We have allowed a writ of error to this court.

The facts are substantially as follows: Lavell began the occupation of a core maker in foundries about twenty years ago. From 1931 to 1933 he was unemployed, but in 1934 commenced working in a restaurant where he later became the manager at a salary of $25 per week until 1939. December 27, 1939, he commenced to work for Ferguson & Lange Foundries, Inc., as a core maker, and remained there until February 26, 1940, when he was laid off. Exposure to the hazard of silicosis in an employment in which the hazard exists is deemed conclusive provided the employment is of sixty days or more duration. Ill.Rev.Stat.1941, chap. 48, par. 172.25, sec. 25. From March 18, 1940, until April 23, 1940, he worked for another foundry, and, upon being laid off, went to work in a grocery store at a weekly salary of $17. During the time he was employed in the Ferguson & Lange foundry he worked full time, except for a short period when he only worked three days per week on account of the ‘flu.’ During the time he worked in the other foundry, after being laid off by Ferguson & Lange, he worked full time.

The X-ray films introduced in evidence, and which were examined and read by medical experts, were taken February 19, June 14, July 27, and October 21, 1940. Of these, the one of July 27 was made by Dr. Harold H. Steinberg on behalf of Lavell, and the others were taken on behalf of defendant in error. Five medical witnesses testified, Dr. Steinberg and Dr. Morris Weissman for Lavell, and Doctors H. E. Davis, Stanley Giryotas, and O. A. Sander for defendant in error.

Dr. Davis, who examined Lavell while he was working for Ferguson & Lange, reported him unacceptable for foundry work based on the fact that he had an old tuberculosis, but which did not show any evidence of activity. He testified there was nothing from a physical standpoint showing he would be unable to do manual work, but that he considered it inadvisable to have a man with an old tuberculosis in a dusty industry, and recommended that he be not kept in an employment where he was subject to the hazard of inhaling silica dust. He was of the opinion plaintiff in error could do other forms of work where he would not be exposed, but felt he was unfitted to continue employement as a foundry worker.

Dr. Giryotas, a specialist in industrial medicine and surgery, examined plaintiff in error about the middle of February, 1940, and was of the opinion he should not continue in an occupation where he would be exposed to silica dust, and so advised the employer and its insurance carrier. Dr. Sander, another witness for defendant in error, who disclosed a wide experience in industrial diseases, stated that plaintiff in error showed an old tuberculosis and there might be silicotic nodules not large enough to show in X-rays, and expressed the opinion that he should not be employed in a job where there was considerable dust exposure and where he might develop silicosis, and that, for such reason, men are not recommended for employment where there is dust exposure which may reactivate a tuberculosis lesion and thus develop silicosis.

Dr. Steinberg, called by plaintiff in error, testified he examined plaintiff in error and had an X-ray taken on July 27, 1940; that his positive findings, based on his examination and medical and occupational history, were that he showed no evidence of any respiratory embarrassment while being examined; that his chest was emphysematous, or barrel-shaped, similar to chronic lung disease patients, breathing sounds moderately diminished in both lung fields, heart negative, blood pressure well within normal limits, temperature 99 degrees, weight 155 pounds; and that, based on the occupational history of plaintiff in error, together with his clinical and X-ray examination, he formed a diagnosis of first-stage silicosis. Dr. Steinberg expressed the opinion plaintiff in error should not return to any occupation with silica dust exposure; that there is no cure for silicosis; that the disease is definitely progressive; and that, in silicosis, there is undue susceptibility to tuberculosis as a complicating factor. On cross-examination, Dr. Steinberg stated plaintiff-in-error's case did not have a discrete nodulation through both lung fields; that on the question of progression, ‘we cannot individualize these cases, and I can not say that one case of silicosis is going to progress and another will not. Certain cases may and certain cases may not. We have no way of telling that. We have no way of telling how long afterwards. This case may start to progress three or five years from now, and it may start tomorrow. It may not.’ To the question, ‘Do you know whether a foundry worker who has worked, say, twenty years, who has developed what you term a first-stage silicosis or, at any rate, one that has not advanced to the stage of discrete nodulation, is considered a good, employable risk?’ the witness answered: ‘A man who is thirty-five years of age or under, I say that he is not a good employable risk.’ At the time of the hearing, plaintiff in error was forty-five. The doctor advised that he no longer work in a dusty environment, testifying that physically plaintiff in error was able to do the work of a core maker, but medically ...