Radaszewski v. Industrial Comm'n

• Decision Date: 15 June 1999
• Docket Number: No. 1-98-1764 WC, No. 1-98-1952 WC.
• Citation: 713 N.E.2d 625,306 Ill. App.3d 186,239 Ill.Dec. 94
• Parties: Lester RADASZEWSKI, Appellant, v. The INDUSTRIAL COMMISSION et al. (Metropolitan Water Reclamation District, Appellee).
• Court: United States Appellate Court of Illinois

713 N.E.2d 625

306 Ill. App.3d 186

239 Ill.Dec. 94

Lester RADASZEWSKI, Appellant, v.The INDUSTRIAL COMMISSION et al. (Metropolitan Water Reclamation District, Appellee).

Nos. 1-98--98-1952 WC.

Appellate Court of Illinois, First District, Industrial Commission Division.

June 15, 1999.

James R. Branit; Bullaro, Carton & Stone, Chicago, for Appellant.

Michael G. Rosenberg & Diane M. Shelley; Metropolitan Water Reclamation District of Greater Chicago, Chicago, for Appellees.

Justice RAKOWSKIdelivered the opinion of the court:

Claimant, Lester Radaszewski, filed an application for adjustment of claim pursuant to the Workers' Occupational Diseases Act (the Act)(820 ILCS 310/1 et seq.(West 1996)) for a chronic inflammatory and infectious sinus condition that he developed while working for the Metropolitan Water Reclamation District(employer).The arbitrator found that claimant sustained an accidental injury that arose out of and in the course of his employment and that his condition was causally connected to the injury.He awarded temporary total disability (TTD) benefits of $453.33 for a period of 218 4/7 weeks and a wage differential award pursuant to section 8(d)(1) of the Act in the amount of $163.08 for the duration of claimant's disability.The Industrial Commission(the Commission) affirmed the arbitrator's decision on TTD benefits but reversed the arbitrator's wage differential award, awarding instead permanent partial disability of 20%.On administrative review, the circuit court of Cook County confirmed.

Claimant appeals, contending that the Commission's decision finding claimant was not entitled to a wage differential award is against the manifest weight of the evidence.Additionally, employer has filed a cross-appeal, contending that the Commission's decision finding a causal connection between claimant's employment and his condition of ill-being and its permanency award is against the manifest weight of the evidence.Because we conclude that the manifest weight of the evidence demonstrates that a contrary result is clearly apparent, we reverse the Commission's decision denying a wage differential.We affirm the remainder of the Commission's decision.

FACTS

Claimant has been a carpenter since 1966.He began working for employer as a carpenter in January of 1975.Before beginning, he was given a physical examination.There were no findings or problems related to his sinuses.Claimant worked in employer's sewage treatment plant in various positions where he was exposed to raw sewage, various chemicals and cleaning agents, bacteria, smoke, and dust from wood, paint, and rust.Claimant worked without an inhalation device and testified that he was never offered one.In the summer of 1975, claimant developed persistent cold symptoms, including constant nasal drip, a runny nose, stuffiness, sinus problems, watery eyes, and difficulty breathing.He also developed polyps in his nasal cavity.He underwent conservative treatment including antibiotics, antihistamines, nasal sprays, and steroid treatment.Because his problems were not resolved, he underwent nine surgical procedures over the next 11 years to remove polyps and to scrape the nasal and sinus passages.Following each procedure, claimant improved for a period of time but, upon returning to his work duties, redeveloped the polyps, infections, and severe problems.At some point, claimant's condition deteriorated to the point that it eroded part of his skull and a pin was placed behind his left eye to hold the socket to the skull.Additionally, over the course of his illness, claimant developed chronic sinus infections, migraines, chronic upper respiratory infections, short-term blindness, balance problems, and brainstem dysfunction.He was given several allergy tests, the results of which were negative.The record does not disclose precisely what claimant was tested for.

Claimant treated with the following doctors: Dr. Albert Lorenz, his family physician; Dr. John Stopka, otolaryngologist; Dr. David Bytel, otolaryngologist; Dr. Michael Goldman, otolaryngologist; Dr. Sherman, neurologist; and Dr. Allen Putterman, opthamologist.Claimant was examined by the following physicians: Dr. Edward Applebaum, otolaryngologist, who saw claimant for a second opinion regarding one of his surgeries; Dr. John Goldman, infectious diseases specialist, who examined claimant to ascertain whether his condition was caused by an infectious disease; Dr. Edward Bleier, who saw claimant in connection with his disability benefits; and Dr. Peter Orris, occupational disease specialist, who was contacted to render an opinion concerning claimant's condition.

Claimant was also seen by two doctors for independent medical examinations at employer's request.In December of 1988he was examined by Dr. John McMahan, who concurred with claimant's treating doctors' opinions that claimant's work environment caused his condition.He was also seen by Dr. William Brice Buckingham, an internal medicine specialist.Dr. Buckingham concluded that claimant's problems were due to a severe allergic reaction but he could not say what claimant was allergic to.He further stated that many people who live in big cities like Chicago suffer from chronic sinus problems due to pollutants.He opined that claimant could return to his previous position as a carpenter.Dr. Buckingham did admit that he could not state with any degree of medical certainty whether claimant was allergic to his work environment.

As a result of his illness, claimant lost his sense of smell, which has never returned.At the time of arbitration he continued to suffer from double vision, laziness in his eye, constant nasal drip, congestion when he lies flat thus necessitating him to sleep sitting up, pain behind the eyes and in his sinuses when the weather changes, migraines, pain in his eye where the pin is, and auditory brainstem dysfunction that impairs his balance.

Claimant received ordinary disability benefits that were paid from his pension fund from August 18, 1986, until March of 1989, during which time he was off work and his symptoms diminished somewhat.From June of 1989 until November of 1990, he assisted his uncle who owned a liquor store, serving as a salesclerk, without pay.

Claimant returned to work for employer on November 1, 1990, as an engineer technician III, which was basically a clerical position with a pay cut of approximately $13,000.However, he testified that he worked in the same environment as before but was now given an inhalation mask.He worked in this capacity until July of 1991.In July, he was advised he was going to lose his status as a carpenter and, because he could not afford the pay loss, he resigned the position.He sought reinstatement as a carpenter.However, claimant has never been recalled to work and has not worked since he resigned.

The arbitrator concluded that claimant was entitled to TTD benefits for 218 4/7 weeks (from August 18, 1986, until October 31, 1990) of $453.33 per week.He further concluded that claimant was disabled from pursing his usual and customary employment because he was required to avoid all respiratory irritants, including dust and sawdust.Therefore, he awarded claimant a wage differential of $163.08 for the duration of his disability.

The Commission affirmed the TTD award and concurred that claimant was not able to return to work as a carpenter for employer.It vacated the wage differential award, however, finding that claimant was only to avoid chemical irritants not dust or sawdust and, therefore, could possibly be a carpenter elsewhere.It found that claimant was 20% permanently partially disabled and awarded him $293.61 for 100 weeks.

The circuit court confirmed, finding that the Commission reasonably could interpret all of the medical evidence to find that, although claimant could not return to work for employer, he could nevertheless do carpentry work elsewhere.The court noted that the Commission's sole reliance on Dr. Orris' report was its prerogative.It further found that inherent in the Commission's finding was the inference that Dr. Orris did not believe that sawdust was a respiratory irritant or a substance that created a contaminated environment.Further, regarding Dr. Orris' statement that, because claimant was susceptible to dizzy spells, he should only use power tools and ladders with extreme caution, the circuit court inferred that Dr. Orris believed claimant could return to work as a carpenter; otherwise, he would not have issued such a warning.

ANALYSIS

I.Causal Connection and Permanency

Employer has filed a cross-appeal, alleging that claimant's condition was not causally connected to his work for employer.It also argues that the condition was a temporary aggravation and, therefore, claimant is not entitled to any permanency award.If employer's contentions are correct, examination of claimant's wage differential issue is unnecessary.We therefore address the cross-appeal first.Employer argues that claimant had a "non-occupational chronic sinus condition which was temporarily aggravated when he worked in the wastewater treatment facility."His condition has subsequently subsided and there is no ongoing disability to sustain a permanency award.

Employer's contention concerning causal connection is without merit.There is clearly ample evidence to support a finding that claimant's condition was causally related to his work.All of the following doctors related claimant's condition to his work environment: Dr. Michael Goldman, claimant's treating otolaryngologist, stated that claimant's condition was due to his exposure to sawdust, solvents, and irritants.He ruled out allergies, anatomic deformities, and trauma as the cause.Additionally, he noted that when claimant was separated from the work environment and, thus, the irritants, his symptoms and conditions improved.Dr. John Goldman also stated that claimant's exposure...