{ "id": 3633713, "name": "LAWRENCE L. DONOVAN, Appellant, v. THE INDUSTRIAL COMMISSION et al., Appellees", "name_abbreviation": "Donovan v. Industrial Commission", "decision_date": "1984-07-05", "docket_number": "No. 3\u201484\u20140123 WC", "first_page": "445", "last_page": "451", "citations": [ { "type": "official", "cite": "125 Ill. App. 3d 445" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "427 N.E.2d 81", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "86 Ill. 2d 92", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5469061 ], "pin_cites": [ { "page": "99" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/86/0092-01" ] }, { "cite": "367 N.E.2d 1308", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "67 Ill. 2d 517", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5811706 ], "pin_cites": [ { "page": "525" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/67/0517-01" ] }, { "cite": "437 N.E.2d 650", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "91 Ill. 2d 288", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3092196 ], "pin_cites": [ { "page": "293-94" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/91/0288-01" ] }, { "cite": "400 N.E.2d 77", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "80 Ill. App. 3d 605", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3231727 ], "pin_cites": [ { "page": "609" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/80/0605-01" ] }, { "cite": "394 N.E.2d 779", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "75 Ill. App. 3d 710", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3271899 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/75/0710-01" ] } ], "analysis": { "cardinality": 679, "char_count": 12949, "ocr_confidence": 0.76, "pagerank": { "raw": 1.1146904769136531e-07, "percentile": 0.5718134532167706 }, "sha256": "c70bc1bcbfcff739dcd86acc9c82f6fe0230b2d0ba03f0883b1847d95cbbf303", "simhash": "1:2cdaafee6751a2c2", "word_count": 2046 }, "last_updated": "2023-07-14T15:49:19.537276+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "LAWRENCE L. DONOVAN, Appellant, v. THE INDUSTRIAL COMMISSION et al., Appellees." ], "opinions": [ { "text": "JUSTICE McNAMARA\ndelivered the opinion of the court:\nPetitioner, Lawrence Donovan, appeals from the judgment of the circuit court of La Salle County confirming the decision of the Industrial Commission. An arbitrator found that petitioner was exposed to the hazards of an occupational disease and was suffering from an occupational disease arising out of and in the course of his employment which left him permanently disabled. The arbitrator awarded petitioner $132.27 per week for life. The Commission affirmed the arbitrator\u2019s finding that petitioner was exposed to the hazards of an occupational disease, but it determined that petitioner did not prove that his condition of ill-being was causally connected to his exposure and denied his claim for compensation.\nPetitioner testified before the arbitrator that he was employed by respondent Ottawa Silica Company from April 1956 to January 1977. During this 21-year period, petitioner held a number of different jobs. He cleaned cars, filled bags, brushed screens, worked in the drying operation, and did maintenance work. There was dust in the air at each job. Petitioner wore a mask or respirator when he worked indoors, but he frequently removed it because he could not breathe. The filters in the mask became blocked within 5 to 30 minutes.\nPetitioner stated that he was experiencing shortness of breath, dizziness, and weakness as early as 1975 and that he sought medical treatment at that time. He went to a Veterans Hospital in 1976 and stopped working in January 1977. In May 1977 he was hospitalized with a diagnosis of chemical diabetes mellitus, mild obstructive lung disease, hiatal hernia, and early alcoholic liver cirrhosis. Petitioner\u2019s complaints of shortness of breath, dizziness, and weakness persisted and were still present at the time of the hearing.\nPetitioner presented the evidence deposition of Dr. Edwin R. Levine, the director of respiratory service at Edgewater Hospital and a specialist in chest diseases. Dr. Levine first saw petitioner in January 1978 when he was admitted to the hospital for X rays, a pulmonary-function test and a blood-gas study. Dr. Levine\u2019s diagnosis, based on petitioner\u2019s employment history and the test results, was that petitioner was suffering from disseminated interstitial pneumonitis and fibrosis, the basis of which is silicosis. The condition was caused by the inhalation of fine sand dust and was permanent.\nDr. William Buckingham testified for Ottawa Silica by means of an evidence deposition. Dr. Buckingham, a pulmonary specialist, examined petitioner in April 1978. He disagreed with Dr. Levine\u2019s interpretation of petitioner\u2019s X rays. Dr. Buckingham did not find fibrotic tissue with fine interstitial changes disseminated throughout the lung. He found calcified lymph nodes and opined that petitioner was suffering from mild airway obstruction related to cigarette smoking.\nBased on this evidence, the arbitrator allowed petitioner\u2019s claim for compensation. Ottawa Silica sought a review of this decision and, on review, presented additional testimony from James Stukel, a metallurgist and Dr. Paul Gross, a pathologist.\nJames Stukel testified about the size and type of silica manufactured by Ottawa Silica. The smallest particle of sand to which petitioner could have been exposed was 44 microns. According to Dr. Levine\u2019s earlier testimony, a respirable particle was approximately five microns in size. Petitioner worked with St. Peter\u2019s Sandstone, which is neither flux calcine nor diatomaceous earth. Stukel also testified that Ottawa Silica did not manufacture fumed silica.\nDr. Paul Gross, a pathologist specializing in the diagnosis of lung disease caused by dust, testified that he customarily studies slides of lung tissue and is not competent to read lung scans or X rays. Relying on Dr. Levine\u2019s interpretation of petitioner\u2019s lung scans and X rays, as well as the radiologists\u2019 reports, however, it was Dr. Gross\u2019 opinion that petitioner did not have silicosis. He explained that there are three types of silicosis: multifocal nodular, interstitial, and acute. The first type is ruled out in petitioner\u2019s case because the X rays, according to Dr. Levine\u2019s interpretation, fail to indicate the presence of multifocal nodules. Interstitial silicosis is eliminated because petitioner was not exposed to flux calcine, diatomaceous earth, or fumed silica, all of which cause this type of silicosis. Finally, acute silicosis, which is caused by exposure to massive quantities of extremely fine particles and which appears similar to pneumonia on X rays, is also excluded since petitioner was not exposed to massive quantities of fine silica nor did his X rays appear similar to those of a patient with pneumonia. Dr. Gross stated, however, that if petitioner had worn a mask only intermittently he would have been exposed to unknown quantities of silica.\nFollowing the testimony of Dr. Gross, on October 12, 1979, the proofs were closed. On March 20, 1980, oral arguments were heard by a majority of the Commission. The record is unclear as to the subsequent events. According to Ottawa Silica, in August 1980, the Commission informally requested that the parties agree on the appointment of an impartial medical examiner to review petitioner\u2019s X rays and report to the Commission. On October 28, 1980, since the parties could not reach an agreement, Ottawa Silica filed a petition under . section 19(c) of the Workers\u2019 Occupational Diseases Act (Ill. Rev. Stat. 1981, ch. 48, par. 172.54(c)) for the appointment of an impartial medical examiner. At the direction of the Illinois State Medical Society, Dr. Robert Tucker was appointed, and he reviewed petitioner\u2019s prior X rays. In a report dated August 17, 1981, Dr. Tucker concluded that there was no convincing evidence of pulmonary disease, and he found no evidence of diffuse densities or localized fibrotic densities.\nAt a hearing on September 30, 1981, petitioner objected to the Commission\u2019s consideration of Dr. Tucker\u2019s report and waived cross-examination of the doctor to preserve his objection. Dr. Tucker\u2019s report was admitted into evidence as a Commission exhibit, and on March 17, 1982, the Commission issued its decision. That decision was confirmed by the circuit court.\nOn appeal petitioner contends that the Commission exceeded its authority in ordering an impartial medical examination after the close of proofs on review, and that when the report of Dr. Tucker is excluded, the arbitrator\u2019s award was not against the manifest weight of the evidence. In addition to Ottawa Silica\u2019s answering brief, the Commission has filed a brief in this court urging that it properly ordered an impartial medical examination after it heard oral arguments.\nSection 19(c) of the Workers\u2019 Occupational Diseases Act provides in pertinent part:\n\u201c(c)(1) At a reasonable time in advance of and in connection with the hearing under Section 19(e) or 19(h), the Commission may on its own motion order an impartial physical or mental examination of a petitioner whose mental or physical condition is in issue, when in the Commission\u2019s discretion it appears that such an examination will materially aid in the just determination of the case. ***\n(2) Should the Commission at any time during the hearing find that compelling considerations make it advisable to have an examination and report at that time, the commission may in its discretion so order.\u201d (Ill. Rev. Stat. 1981, ch. 48, par. 172.54(c).)\nPetitioner maintains that the \u201chearing\u201d referred to in section 19(c) is the period of time beginning with the presentation of evidence to the Commission and ending with the close of proofs. He urges that the Commission\u2019s request for an impartial examination was not made \u201cin advance of and in connection with the hearing,\u201d nor was the request made \u201cduring the hearing.\u201d\nThe scope of sections 19(c)(1) and (c)(2) is a question of first impression. However, Supreme Court Rule 215(d)(1) (87 Ill. 2d R. 215(d)(1)), an analogous provision relating to the trial courts, has been interpreted by this court and provides us with guidance. In In re Custody of Scott (1979), 75 Ill. App. 3d 710, 394 N.E.2d 779, this court held that an impartial examination ordered after closing arguments had been made was ordered \u201cduring the trial.\u201d We decided that the trial period did not conclude until a final judgment was entered.\nBlack\u2019s Law Dictionary defines a hearing as \u201csynonymous with trial.\u201d (Black\u2019s Law Dictionary 852 (4th ed. 1968).) We believe that the proper definition of \u201chearing\u201d included the Commission\u2019s deliberative process. The hearing does not terminate until a decision is entered. The impartial examination ordered by the Commission prior to its decision was made \u201cduring the hearing\u201d in accordance with section 19(c)(2).\nPetitioner argues, however, that even if the examination was ordered during the hearing, the Commission did not state in its order \u201cthat compelling considerations make it advisable to have an examination and report at that time.\u201d The record before us does not include the Commission\u2019s order for the impartial examination. Since the order is not before us, we must presume that the Commission found compelling considerations warranted an impartial examination. (Brokerage Resources, Inc. v. Jordan (1980), 80 Ill. App. 3d 605, 609, 400 N.E.2d 77.) Moreover, the absence of such language would not be fatal to the Commission\u2019s right to issue such an order. Since the medical evidence was conflicting, the Commission certainly concluded that compelling considerations existed for an impartial examination.\nPetitioner'also contends that reading and interpreting X rays is not a physical examination. We do not agree. The use of X rays, a common diagnostic tool used by physicians, is encompassed within the term \u201cphysical examinations.\u201d Petitioner apparently concedes that physical examinations would include tests, and we find no distinction in the fact that Dr. Tucker reviewed prior X rays rather than new ones.\nPetitioner has repeatedly referred to the 22-month delay from the close of proofs to the date of Dr. Tucker\u2019s report. While the record is unclear as to the cause of this inordinate delay, we do not condone such a delay on the part of the Commission, which clearly frustrates the Act\u2019s intended purpose of quick and efficient remedies. However, while we strongly discourage such delays in the future, the Commission\u2019s statutory authority to order an impartial examination is not affected in the present case.\nPetitioner next contends that, when Dr. Tucker\u2019s report is stricken, the decision of the arbitrator is not against the manifest weight of the evidence. Our review is limited to whether the decision of the Industrial Commission is against the manifest weight of the evidence. (Martin v. Industrial Com. (1982), 91 Ill. 2d 288, 293-94, 437 N.E.2d 650.) The Commission exercises original jurisdiction and is not bound by the arbitrator\u2019s findings. (Master Leakfinding Co. v. Industrial Com. (1977), 67 Ill. 2d 517, 525, 367 N.E.2d 1308.) Therefore, the arbitrator\u2019s decision is not before us.\nFrom our review of the record, the decision of the Commission is not against the manifest weight of the evidence. As we have concluded, the Commission was entitled to consider Dr. Tucker\u2019s report. Besides the conflicting testimony of Drs. Levine and Buckingham as to the interpretation of petitioner\u2019s X rays, the Commission had before it unrebutted testimony that petitioner was never exposed to silica particles small enough to be respirable. There was also evidence that Dr. Levine\u2019s interpretation of the X rays was at variance not only with Dr. Buckingham, but also with the radiologists at Edge-water Hospital.\nThe Commission has the responsibility of assessing the credibility of witnesses and determining the weight to be given to their testimony. (Caradco Window & Door v. Industrial Com. (1981), 86 Ill. 2d 92, 99, 427 N.E.2d 81.) The Commission properly considered all of the evidence before it and made a decision on the controverted facts. That decision is not against the manifest weight of the evidence.\nFor the reasons stated, the judgment of the circuit court of La Salle County, confirming the decision of the Industrial Commission, is affirmed.\nJudgment affirmed.\nSEIDENFELD, P.J., BARRY, WEBBER, and KASSERMAN, JJ., concur.", "type": "majority", "author": "JUSTICE McNAMARA" } ], "attorneys": [ "Karen L. Kendall and Peter F. Ferracuti, both of Peter F. Ferracuti & Associates, of Ottawa, for appellant.", "Pamela Koroff Kesler, of Cohn, Lambert, Ryan & Schneider, Ltd., of Chicago, for appellee Ottawa Silica Company.", "Neil F. Hartigan, Attorney General, of Springfield (Alan R. Boudreau, Moshe Jacobius, and Carolyn B. Notkoff, Assistant Attorneys General, of Chicago, of counsel), for appellee Industrial Commission." ], "corrections": "", "head_matter": "LAWRENCE L. DONOVAN, Appellant, v. THE INDUSTRIAL COMMISSION et al., Appellees.\nThird District (Industrial Commission Division)\nNo. 3\u201484\u20140123 WC\nOpinion filed July 5, 1984.\nKaren L. Kendall and Peter F. Ferracuti, both of Peter F. Ferracuti & Associates, of Ottawa, for appellant.\nPamela Koroff Kesler, of Cohn, Lambert, Ryan & Schneider, Ltd., of Chicago, for appellee Ottawa Silica Company.\nNeil F. Hartigan, Attorney General, of Springfield (Alan R. Boudreau, Moshe Jacobius, and Carolyn B. Notkoff, Assistant Attorneys General, of Chicago, of counsel), for appellee Industrial Commission." }, "file_name": "0445-01", "first_page_order": 467, "last_page_order": 473 }