E. R. Moore Co. v. Industrial Commission

• Decision Date: 03 April 1978
• Docket Number: No. 48923,48923
• Citation: 71 Ill.2d 353,17 Ill.Dec. 207,376 N.E.2d 206
• Parties: , 17 Ill.Dec. 207 E. R. MOORE CO., Appellee, v. The INDUSTRIAL COMMISSION et al. Appeal of Elizabeth APPLEHANS.
• Court: Illinois Supreme Court

Page 206

376 N.E.2d 206

71 Ill.2d 353, 17 Ill.Dec. 207

E. R. MOORE CO., Appellee, v. The INDUSTRIAL COMMISSION et al. Appeal of Elizabeth APPLEHANS.

No. 48923.

Supreme Court of Illinois.

April 3, 1978.

Rehearing Denied May 26, 1978.

E. Anne Mazur, Chicago (Sidney Z. Karasik, Highland Park, of counsel), for appellant.

Dowd, Dowd & Dowd, Ltd., Chicago (Joseph V. Dowd and Philip J. McGuire, Chicago, of counsel), for appellee.

MORAN, Justice.

Claimant, Elizabeth Applehans, appeals the Cook County circuit court judgment which reversed the Industrial Commission's order awarding total permanent disability compensation to claimant for injuries sustained in a work-connected accident.

Respondent, E. R. Moore Company, rents caps and gowns for use on ceremonial occasions. The garments, after being used, are returned to the plant for dry cleaning. Claimant, a 58-year-old woman, was employed by respondent as a garment presser. On June 8, 1972, a washing machine filled with perchloroethylene, a dry-cleaning solution, overflowed, splashing the solution upon claimant's feet and legs. A week later, a rash appeared on claimant's feet and legs. She continued to work although the dermatitis progressed the rash spreading to her arms and other parts of her body. She did not seek medical attention for this condition until October 28, 1972. She had, however, informed her employer of the rash prior to her consultation with a physician.

Dr. Lenin Pellegrino, claimant's treating physician, prescribed medication and instructed her to stay home until the condition cleared. On January 3, 1973, claimant returned to work, but the rash reappeared, this time covering her entire body. Dr. Pellegrino again prescribed medication. Claimant requested workmen's compensation forms from her employer, but her employer first referred her to another physician, Dr. Gilbert. Dr. Gilbert administered an injection, prescribed a different type of medication, and instructed claimant to return to work. Claimant remained under Dr. Gilbert's care for a month and a half, during which time she made several attempts to resume working. On each occasion, however, she experienced renewed discomfort. She was ultimately referred to another physician, Dr. Silas Wallk, who had her placed in a hospital. While at the hospital, claimant was given salves for her skin and instructed to take "oatmeal" baths twice a day. (As of the date of the arbitration hearing, claimant was continuing to take the "oatmeal" baths prescribed.) After her release by Dr. Wallk, claimant did not return to work.

At the arbitration hearing, claimant testified she had worked off and on for 15 years at various jobs which she described as housework. These jobs required her to use soaps and cleaning fluids. Immediately prior to her employment with the respondent, claimant worked as a maid in a hotel. Since the accident, her husband and her daughters have cleaned the floors and done the laundry. Whenever claimant is exposed to bleaches or detergents her hands are "inclined to itch a little."

On cross-examination, claimant noted that as long as she has avoided contact with the irritant which caused her problem, her rash and itching have disappeared. On redirect, however, claimant reemphasized the fact that she has avoided contact with all cleaning detergents since her accident at work. She also stated that, after being released by Dr. Wallk, she visited Dr. Pellegrino twice for checkups, and he advised her not to return to work.

Dr. Pellegrino testified that he had treated claimant for a skin condition commonly known as contact dermatitis. Although the initial treatment resulted in a marked improvement, the condition flared up again on claimant's return to work. Dr. Pellegrino explained that contact with a solvent like perchloroethylene removes the body oils from the skin and each exposure decreases the skin's resistance to other less toxic irritants. He stated that claimant should avoid working at any job that would involve the use of solutions, such as detergents and cleaning solvents, that contain active chemical agents, for she runs the risk of reactivating the dermatitis.

On cross-examination, Dr. Pellegrino noted that, even though the objective manifestation of the dermatitis may disappear, claimant's susceptibility will remain. Considering her age and her sensitivity to active chemical agents, Dr. Pellegrino suggested that there were very few jobs that claimant could perform without risking her health.

The medical reports of Dr. Pellegrino and Dr. Wallk were introduced into evidence by respondent. Dr. Wallk's report indicated that the claimant had suffered from a case of general dermatitis and should remain cured as long as she avoids returning to her former employment. Based on the evidence submitted, the arbitrator awarded claimant total and permanent disability compensation.

On review before the Commission, the respondent introduced into evidence the testimony of Dr. Samuel M. Bluefarb, a dermatologist. Dr. Bluefarb testified that his examination of the claimant revealed no active dermatitis, but only a slight increase in the pigmentation around her ankles and some scaling of the skin of the forearms. He noted that the scaling of the forearms could be caused by a number of factors, such as age, winter weather, or too much soap. He described percholoroethylene as a primary irritant and stated that an individual would develop contact dermatitis if exposed to it. As long as the sensitized person thereafter avoided the offending substance, Dr. Bluefarb stated that, generally speaking, the dermatitis should clear and the individual should experience no further difficulty.

On cross-examination, Dr. Bluefarb stated that he did not know the severity of claimant's initial dermatitis nor the number of times she had been exposed. He stated that damage to the skin as a result of reexposure would vary from person to person, and that the skin would not necessarily become more vulnerable to other irritants. Although a primary irritant removes the oils from the skin and makes it susceptible to other chemical solvents, Dr. Bluefarb opined that in time the oil should return. He noted, however, that if the skin was permanently damaged it would have less resistance to substances such as soaps and detergents.

Respondent then called claimant as its witness. Claimant testified that since leaving respondent's employ she had submitted applications at two factories and had continued to look for employment. Under questioning by her own counsel, claimant stated that the two prospective employers had asked only about her age, and she had not been called back for work. She did not know if the work she applied for involved the use of solvents like perchloroethylene.

The Commission affirmed the arbitrator's award.

On review before the circuit court, the respondent argued that the claimant failed to prove she was unable to work. Respondent pointed out that there was no testimony to indicate that claimant's inability to find work was attributable to her disability. The circuit court reversed and remanded the cause for the taking of further evidence concerning claimant's inability to work. Claimant, however, filed a motion to vacate the remandment order, and, following a hearing at which claimant's counsel stated that no further evidence could be produced, the circuit court vacated its remandment order and reversed the Commission's award of total and permanent disability.

On appeal, claimant contends that the evidence was sufficient to sustain the Commission's finding of total and permanent disability. She argues that, considering the nature of her disability, her age, and her limited work experience, the Commission properly concluded that there is no reasonably stable market for her services. Conversely, the respondent contends that because claimant will remain healthy as long as she avoids contact with various irritants, she cannot be considered totally and permanently disabled for the purposes of section 8(f) of the Workmen's Compensation Act (Ill.Rev.Stat.1975, ch. 48, par. 138.8(f)). The respondent also argues that the Commission's award is against the manifest weight of the evidence because there is no evidence that claimant is unable to work or that her disability has prevented her from obtaining suitable employment.

An employee does not have to be reduced to a state of total physical and mental incapacity or helplessness before total and permanent disability compensation can be awarded. (C. R. Wikel, Inc. v. Industrial Com. (1977), 69 Ill.2d 273, 278, 13 Ill.Dec. 675, 371 N.E.2d 610; South Import Motors, Inc. v. Industrial Com. (1972), 52 Ill.2d 485, 488-89, 288 N.E.2d 373.) Although an employee seeking such compensation must prove that he has sustained a permanent medical disability as a result of a work-related accident (except with respect to awards pursuant to section 8(e)(18) (Ill.Rev.Stat.1975, ch. 48, par. 138.8(e)(18)) (Scandroli Construction Co. v. Industrial Com. (1973), 54 Ill.2d 395, 399, 297 N.E.2d 150)), the award of compensation is not for the disability as such, but for the impaired earning capacity which results from that disability (Board of Education v. Industrial Com. (1972), 53 Ill.2d 167, 171, 290 N.E.2d 247; Consolidated Coal Co. v. Industrial Com. (1924), 314 Ill. 526, 528, 145 N.E. 675).

Admittedly, the claimant is not presently experiencing pain or discomfort, nor is she likely to do so in the future as long as she avoids contact with various irritants. Medical testimony, however, indicates that the claimant is suffering from a medical disability a sensitization to active chemical agents such as those found in common detergents and cleaning solvents and that the disability was precipitated by her on-the-job exposure to perchloroethylene. In Dr. Pellegrino's opinion, her susceptibility is a permanent condition. Dr. Pellegrino's prognosis is supported, in many...