Opinion
No. 1-17-0876WC
03-23-2018
JOSEPH SHABEZ, Appellant, v. ILLINOIS WORKERS' COMPENSATION COMMISSION et al., (Pace Suburban Bus Service, Appellee).
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of Cook County
No. 2016 L 050728
Honorable Carl Anthony Walker, Judge, Presiding.
JUSTICE HOFFMAN delivered the judgment of the court.
Justices Hudson and Harris concurred in the judgment.
Presiding Justice Holdridge dissented, joined by Justice Barberis.
ORDER
¶ 1 Held: The decision of the Illinois Workers' Compensation Commission denying the claimant benefits under the Workers' Occupational Diseases Act (820 ILCS 310/1 et seq. (West 2008)) by reason of the claimant's failure to prove that he suffered an occupation disease which arose out of and in the course of his employment is not against the manifest weight of the evidence.
¶ 2 The claimant, Joseph Shabez, appeals from an order of the circuit court of Cook County which confirmed a decision of the Illinois Workers' Compensation Commission (Commission)
denying him benefits under the Workers' Occupational Diseases Act (820 ILCS 310/1 et seq. (West 2008)) by reason of his failure to prove that he suffered an occupational disease which arose out of and in the course of his employment with Pace Suburban Bus Service (Pace). For the reasons which follow, we affirm the judgment of the circuit court.
¶ 3 The following factual recitation is taken from the evidence adduced at the arbitration hearing held on July 2, 2013, and January 10, 2014.
¶ 4 Prior to the events at issue, the claimant has a medical history that is relevant to this appeal. The claimant testified that, from October 21, 1968, to May 24, 1970, he served in the military for the Vietnam War and, during that time, he was exposed to the herbicide, Agent Orange. He also stated that he never smoked cigarettes; however, the record conveys that, during a June 21, 2005, visit, his primary care physician, Dr. Mark Collins, noted that he "smokes[.]" The claimant further testified that, when he was living with his parents during the first 18 years of his life, his father smoked cigarettes inside of their house. At the time of the arbitration hearing on July 2, 2013, the claimant's parents and four siblings were all living, and none of them had ever been diagnosed with cancer.
¶ 5 The claimant testified that he began his career with Pace in November 1979 when he was hired as a fueler or service worker for the Northwest Division, which is located in Des Plaines, Illinois (facility). The buses that the claimant worked with had diesel engines and their exhaust was released from the rear, at the top—approximately nine feet from the ground. While the claimant was working on these buses, he utilized three buildings at the facility: the parking garage, the maintenance garage, and the "wash rack."
¶ 6 The parking garage held 64 buses and was not equipped with any ventilation systems or exhaust hoses. However, there were four bay doors—approximately 25 to 30 feet wide and 15 to
20 feet high—on each side of the building that were open for around six months of the year, "unless it was real, real cold out[;]" then, only one or two of the doors would be open. The maintenance garage, on the other hand, had 8 or 10 repair bays. Like the parking garage, it was not equipped with any ventilation fans or exhaust hoses, but had about 8 to 10 bay doors—approximately 12 to 13 feet wide and 15 to 20 feet high—on one side that could be opened for ventilation purposes, but were closed during the winter months. In between the parking and maintenance garages, there was a wash rack. The claimant described the wash rack as a covered structure with a door at each end for the buses to enter and exit. During winter, the two doors would open and close automatically.
¶ 7 As stated supra, the claimant started as a fueler at Pace in November 1979. As a fueler, he worked from 4 p.m. until 12:30 a.m., five days a week. During the first part of his shift, from 4 p.m. until 6 or 7 p.m. (when the buses began returning to the facility from their routes), he would be doing "odds and ends" in the maintenance garage. The claimant stated that he was exposed to diesel exhaust during this time because there would be buses running during servicing. When the bay doors were closed during winter, there were generally one or two buses running and "the smoke would be coming out of the exhaust, cause they were old buses and they were old engines so they would burn more." These buses would be "backed in" to the maintenance garage, so the employees' workbenches were in close proximity to the exhaust.
¶ 8 Once the buses began returning from their routes, the claimant drove them to the different locations where he cleaned and then fueled them. The buses were turned off while they were being washed in the wash rack; nonetheless, the area was still "smoky" because the buses had to be restarted once they were clean and ready to be fueled. During fueling, the buses continued running. After the claimant finished cleaning and fueling an individual bus, he would
drive it to the parking garage, where it would remain until it left for its route the following day. According to the claimant, even when the parking garage's bay doors were open, exhaust still accumulated. About once or twice a week, the claimant's position as a fueler required him to leave the facility in order to make service calls; for example, when he "had to switch out a bus for *** a bad fare box or something." He acknowledged that, while he was driving the buses and cleaning their interiors, he was not exposed to diesel exhaust.
¶ 9 In 1984, the claimant was promoted to the position of a mechanic's helper and he started doing, inter alia, "brake jobs, radius rods, shocks, [and] tires[.]" He also changed headlights and repaired fare boxes, windows, and air-conditioning condensers. Because of this position, the claimant's hours changed to 12 a.m. to 8:30 a.m., and he was required to spend more time in the maintenance garage. However, he still had to work in the parking garage for about four or five hours each shift. For example, on Sunday nights, he would go from "row to row[,]" turning on the buses and letting them run in order to "check the anti-freeze *** and get them ready" to leave for their routes. All 64 of the buses would be running at the same time. Because this process ensured that the buses were functioning properly and charged their batteries, it had to be done year-round. During winter, from the beginning of December until the end of February, the buses were left running all night (from around 12 a.m. to 4 a.m.); however, during other seasons, they would only run for approximately two hours. Once the buses left for their routes at approximately 4 a.m., the claimant would spend the remainder of his shift—until 8:30 a.m.—doing general repairs in the maintenance garage.
¶ 10 The claimant eventually began working as a mechanic's helper during the day shifts. During these shifts, he worked in the maintenance garage, servicing and repairing buses. At that time, he no longer washed or fueled buses. According to the claimant, it was common practice to
keep buses running for certain repairs, such as when the heat or air-conditioning systems were being worked on. Even if he was performing a repair that did not require the engine to be running, his other 10 coworkers may have had the engines running. The claimant estimated that he was exposed to about six hours of diesel exhaust fumes per day while he was a mechanic's helper. He stated that he was not exposed while he was "doing a brake job, changing a tire, or [when] nobody would have a bus running."
¶ 11 In 1986 or 1987, the claimant was promoted to a mechanic position. His job duties were substantially similar to those he performed as a mechanic's helper.
¶ 12 In the late 1990s or early 2000s, the facility was renovated. The parking garage, which still held 64 buses, had ventilation fans installed on the roof. According to the claimant, although these fans helped to remove some of the diesel exhaust, they "wouldn't take all [of] the smoke" or exhaust "out." After the renovations to the maintenance garage, there were 10 repair bays. Additionally, an "apron" area was constructed, so that six extra buses could be repaired outside of a bay in the event of an overflow situation. Exhaust hoses were also added to the maintenance garage; at least 8 of the 10 repair bays were equipped with a hose, but the new overflow space did not have any. The maintenance garage now had "two sets of giant big doors on either side of the" building that could be opened for ventilation; however, due to cold weather in the winter and in order to prevent theft, it was Pace's policy that these doors did not remain open at all times. When it was "real hot[,]" the employees were permitted to keep the doors open if they blocked the openings with something, e.g., a parked bus that took up approximately half the width and half the height of the doors. The renovations to the wash rack included expanding it from one to two lanes; it remained a covered building with doors on both ends and it did not have ventilation fans or exhaust hoses.
¶ 13 According to the claimant, even after the renovations, he was still exposed to diesel exhaust for about four hours a day because "sometimes" the exhaust hoses in the maintenance garage were accidentally ripped down or the buttons for the on and off switches would not work. Additionally, buses in the overflow area were left running without exhaust hoses for certain repairs, such as air-conditioning recharges, which occurred a couple of times per week during the "summer"—beginning in April or May—and took about three hours to complete. The claimant stated that, during an average week where he worked six eight-hour days, there would be no buses running in the maintenance garage for one or two days. He further testified that he was exposed to diesel exhaust when he was carrying out tasks in the renovated parking garage where the buses were running. This would occur about two to three times a week when a bus driver was experiencing an issue with a bus. In such cases, the claimant would examine the bus before taking it back to the maintenance garage. The claimant regularly worked as a mechanic for Pace until May 2009. During his approximately 30 years there, he was never provided with a mask to prevent the inhalation of exhaust fumes; he was only supplied a mask to be worn while applying lubricant to the chains of the handicap ramps, but he was not required to wear it.
¶ 14 On January 28, 2009, the claimant presented to Dr. Collins. At this appointment, the claimant complained of intermittent hematuria or blood in his urine, which had been occurring for about a month or a month and a half. The claimant testified that this had never occurred before January or February 2009; however, his medical records convey a history of hematuria starting in 2006. Dr. Collins ordered diagnostic tests and ultimately referred the claimant to a urologist, Dr. Eric Dybal.
¶ 15 On February 18, 2009, the claimant met with Dr. Dybal and they discussed, inter alia, the claimant's exposure to diesel exhaust at work. On February 27, 2009, Dr. Dybal performed a
cystourethroscopy on the claimant, which revealed a five-centimeter bladder tumor. On March 10, 2009, the claimant underwent a cystoscopy and transurethral resection, which removed his tumor. A subsequent biopsy of the tumor revealed that it was an invasive papillary urothelial (transitional cell) carcinoma. On April 8, 2009, Dr. Dybal diagnosed the claimant with bladder cancer. Dr. Dybal ordered, inter alia, a CT scan of the claimant's abdomen and pelvis, which occurred on April 17, 2009, and confirmed his diagnosis of bladder cancer. On April 22, 2009, Dr. Dybal referred the claimant to Dr. Robert Flanigan in order to perform a radical cystectomy with urinary diversion. Dr. Dybal explained that this procedure entailed "surgically remov[ing] the entire bladder and prostate and then creat[ing] some kind of urinary diversion to collect [the claimant's] urine."
¶ 16 On May 11, 2009, the claimant met with Dr. Flanigan in order to schedule his surgery. The claimant subsequently "arrange[d] some sort of leave" from work and, on May 14, 2009, he filed an application for adjustment of claim pursuant to the Act.
¶ 17 On May 26, 2009, the claimant underwent the radical cystectomy with urinary diversion. His prostate and bilateral pelvic nodes were also removed. Because the claimant had multiple issues involving post-operative infections, Dr. Flanigan prescribed an anti-infection medication that the claimant would be required to take for the rest of his life. In addition to infections, the claimant also suffered from incontinence, lack of sleep, and weight loss. After the claimant's procedure in May 2009, Dr. Flanigan never authorized him to return to work. The claimant continued to follow up with Dr. Flanigan through January 2012.
¶ 18 At Dr. Flanigan's behest, the claimant underwent a CT scan on January 12, 2012, which indicated that his cancer was recurring. A June 12, 2012, biopsy of the claimant's pelvis tested positive for metastatic urothelial cell carcinoma. At a follow up appointment on June 18, 2012,
Dr. Flanigan referred the claimant to Dr. Ellen Gaynor. On July 6, 2012, Dr. Gaynor told the claimant that, although "his current situation [wa]s not curable," bladder cancer is "sensitive" to chemotherapy. The claimant, consequently, underwent chemotherapy and radiation treatments throughout 2012 and 2013.
¶ 19 According to the claimant, Drs. Collins, Dybal, and Flanigan told him that there could be a connection between his bladder cancer and his exposure to diesel exhaust at work. Dr. Collins wrote a letter, dated January 19, 2011, wherein he stated, in relevant part, "I feel that there is probably a causal relationship between [the claimant's] bladder cancer and his exposure to diesel exhaust while working for Pace[.]" Dr. Collins added that he would nonetheless "defer to the experts *** in the matter of causality."
¶ 20 Dr. Dybal testified that he was aware that the claimant was exposed to diesel exhaust and solvents—such as dyes handled in the tire and rubber industry—on a daily basis at work. In a letter dated July 26, 2012, he opined that this exposure was the claimant's "only risk factor" for his development of bladder cancer. In the letter, Dr. Dybal also stated that the connection between the claimant's "chronic exposure" to diesel fumes and solvents at work and his bladder cancer is: "well documented in the literature not only in the review article ***, but also in standard urologic text books including Campbell's Urology." According to Dr. Dybal, "Campbell's Urology is considered among urologists to be the definitive textbook for urology" and it outlines the association between diesel exhaust fumes and bladder cancer. The review article Dr. Dybal referenced is "A Meta-Analysis of Bladder Cancer and Diesel Exhaust Exposure," which was published in Epidemiology in January 2001. Dr. Dybal explained that this article analyzed 10 previous studies on diesel-exhaust exposure and found that "a relative risk" of bladder cancer "was increased for those patients who had been exposed[.]" He could not
quantify how much exposure to diesel fumes or solvents was necessary to cause bladder cancer, but, instead, explained that it is understood that the exposure needs to be chronic.
¶ 21 Dr. Dybal acknowledged that the claimant suffered from hematuria 10 years before his initial appointment with him; however, he did not know the cause. According to Dr. Dybal, bladder infections are more strongly associated with squamous cell cancer, which is different from the claimant's transitional cell cancer. Dr. Dybal also opined that routine bladder infections do not put people at an increased risk for bladder cancer; rather, chronic infections put people at risk and the claimant had not suffered from such infections.
¶ 22 On cross-examination, defense counsel had Dr. Dybal review a press release from the World Health Organization and the International Agency for Research on Cancer (IARC) from June 2012. This article states that "diesel exhaust is a cause of lung cancer (sufficient evidence)" and that there is "a positive association (limited evidence) with an increased risk of bladder cancer ***." (Emphasis in original.) Dr. Dybal opined that limited evidence of an association between bladder cancer and exposure to diesel exhaust is "enough" and that this article actually supported his opinion.
¶ 23 Dr. Dybal testified that there has been "some correlation" between a Vietnam veteran's exposure to Agent Orange and bladder cancer and that "[i]t seems like Agent Orange can cause anything in a Vietnam vet[,]" but he did not know if that was true. He also acknowledged that there was "probably a loose correlation" between second-hand smoke and bladder cancer, but that it had not been fully studied. Dr. Dybal then reviewed a 2006 article regarding the correlation between tobacco smoke and bladder cancer, which was published in the International Journal of Cancer. He stated that he did not subscribe to this journal because it was not a standard authoritative, peer-reviewed journal in his field. Dr. Dybal nonetheless admitted that he
was not surprised that this study found that exposure to environmental tobacco smoke during childhood increases the risk of bladder cancer. He further conceded that, if a child was exposed to second-hand smoke every day for 18 years, it could "[p]ossibly" increase that person's chance for developing bladder cancer; however, this "would be exceedingly remote." This article "absolutely [did] not" change Dr. Dybal's opinion about the increased risk of bladder cancer that the claimant sustained from his exposure to diesel exhaust at work.
¶ 24 Dr. Shirley Conibear testified as Pace's independent-medical-examination doctor. She explained that she is, inter alia, the president and sole stockholder of Carnow, Conibear & Associates, Ltd., an environmental and occupational health consultancy firm that works with companies, including Pace. She acknowledged that she has worked for Pace for a "couple [of] decades" conducting industrial hygiene, i.e., "air sampling or any safety ergonomic things." She did not know whether she has done any air-quality testing to measure diesel fumes in Pace facilities.
¶ 25 Dr. Conibear testified that she has never examined or spoken to the claimant and that she was not aware that he had worked at Pace "for approximately 15 years without any ventilation system[.]" Nonetheless, at the request of Pace and after reviewing the claimant's medical records and work history, Dr. Conibear authored a report on June 18, 2013, wherein she concluded that, to a reasonable degree of medical certainty, there was no causal connection between the claimant's exposure to diesel exhaust at work and his bladder cancer. Dr. Conibear opined that there is only limited evidence of an association between bladder cancer and exposure to diesel exhaust. Although she acknowledged that "[t]here's some studies that" show a "positive" association, she explained that, based upon the conclusions of the IARC and the National Toxicology Program (NTP), "when you take the body of literature as a whole[,] it does not show
an association that is considered to be reliable." According to Dr. Conibear, to the extent that there is evidence of an association, it is likely in the highest exposure group. She opined that the claimant's job as a mechanic would be classified in the intermediate exposure group and thus causal connection was lacking. In reaching this conclusion, Dr. Conibear cited four references.
¶ 26 The first reference was a chapter from the book, Cancer Epidemiology and Prevention, published in 2006, which pointed out other known risk factors for the development of bladder cancer, such as drinking water disinfection byproducts and infection or bladder stones. Dr. Conibear did not know whether the claimant drank tap water or if he resided in one of the areas where water disinfection byproducts or chlorinated surface water was an issue. She also testified that the claimant had a history of both kidney stones and urinary tract infections. Dr. Conibear noted that, although smoking is the biggest single cause of bladder cancer, the claimant did not smoke.
¶ 27 Dr. Conibear's final three references in her report were: (1) "Analysis of Diesel Exhaust Particulate as a Carcinogen" from the NTP, which was published in 1998; (2) the NTP summary opinion of the carcinogenicity of diesel exhaust, which was published in 2011; and (3) a published article by Anjoeka Pronk et al. that reviewed various studies that have measured exposure to diesel exhaust in different work environments. Dr. Conibear's opinion that the claimant's job fell into the intermediate exposure group was based upon the findings in these three references; particularly, the article by Pronk et al., which found that miners and underground construction workers had the overall highest level of exposure to diesel fumes, whereas workers in above-ground, semi-enclosed areas where smaller equipment was running intermittently, such as in a mechanics' shop, were at the intermediate level. Dr. Conibear
admitted that emissions tests from the facility would be better evidence of the claimant's exposure group.
¶ 28 Following the arbitration hearing, the arbitrator issued a decision finding that the claimant failed to prove that he suffered an occupational disease that arose out of and in the course of his employment with Pace or, more specifically, that he was exposed to any occupational hazard arising out of his employment and resulting in disease and disablement. In so holding, the arbitrator found the testimony of Dr. Conibear more convincing than the testimony of Dr. Dybal. The arbitrator explained that "limited evidence" of a positive association between bladder cancer and exposure to diesel exhaust, which Dr. Dybal testified was "enough" evidence for him to find a causal connection, was "not sufficient to meet the standard of a preponderance of the evidence." Instead, the arbitrator denied the claimant benefits pursuant to the Act based upon Dr. Conibear's opinion that, overall, the studies on the correlation between bladder cancer and exposure to diesel exhaust were inconclusive.
¶ 29 The claimant filed a petition for review of the arbitrator's decision before the Commission. On September 22, 2015, the Commission issued a unanimous decision affirming and adopting the arbitrator's finding.
¶ 30 The claimant sought judicial review of the Commission's decision in the circuit court of Cook County. On March 30, 2016, the circuit court reversed the decision of the Commission and remanded with instructions to reweigh the evidence. Relying on, inter alia, Omron Electronics v. Illinois Workers' Compensation Comm'n, 2014 IL App (1st) 130766WC, ¶ 38, the court explained that limited evidence is sufficient to meet the preponderance-of-the-evidence standard because, pursuant to the Act, proof of a direct causal connection is not required; rather, a causal
connection may be found where a medical expert opines that an accident "could have" or "might have" caused an injury.
¶ 31 On remand, the Commission issued a unanimous decision on October 5, 2016, reaffirming the arbitrator's decision to deny the claimant benefits because he failed to show that he suffered from an occupational disease. The Commission reasoned that the evidence did not "clearly support a relationship between diesel exhaust exposure and bladder cancer" because, "[t]o the extent to which there is evidence of an association ***, it is likely in the highest exposure group" and the claimant's position as a mechanic would be "classified in the intermediate exposure group." The claimant again sought judicial review of the Commission's decision in the circuit court. On March 28, 2017, the circuit court entered an order confirming the Commission's decision. The claimant now appeals.
¶ 32 On appeal, the claimant contends that the Commission erred in holding that his bladder cancer was not causally related to his exposure to diesel exhaust while in the employ of Pace.
¶ 33 At the outset, we note that the parties disagree as to the applicable standard of review. The claimant argues that the standard of review should be de novo since the issue on appeal presents a question of law. In the alternative, the claimant asserts the clearly erroneous should apply as a mixed question of law and fact exists because the Commission, in making its determination regarding causal connection, considered the intensity of his exposure to diesel exhaust in violation of the Act. According to the claimant, by considering the amount of exposure, the Commission imposed a heightened standard that would require someone seeking benefits for bladder cancer to prove that he or she is in the highest exposure group. Pace, on the other hand, asserts that the Commission's decision should be reviewed under the manifest-weight-of-the-evidence standard because there is "an abundance" of disputed facts relevant to the
determination of causal connection. We agree with Pace; de novo review is inappropriate because "[t]he question of whether *** a causal relationship exists is one of fact for the Commission to decide" and a reviewing court will not substitute its "judgment for that of the Commission *** unless the Commission's finding is against the manifest weight of the evidence." Anderson v. Industrial Comm'n, 321 Ill. App. 3d 463, 467 (2001). In so holding, we note that our supreme court has reviewed the Commission's determinations as to causal connection under the manifest-weight standard although it interpreted the language of the Act in order to do so. Sperling v. Industrial Comm'n, 129 Ill. 2d 416, 421-22 (1989) (stating that "[n]othing in the statutory language requires proof of a direct causal connection[,]" the court held that the Commission's causation finding was not against the manifest weight of the evidence).
¶ 34 We also decline to review this case under the clearly-erroneous standard. In City of Belvidere v. Illinois State Labor Relations Board, 181 Ill. 2d 191, 205 (1998), the supreme court held that a clearly-erroneous standard is appropriate when reviewing an administrative agency's application of the law to the facts, which presents a mixed question of law and fact. After its decision in City of Belvidere, however, the supreme court continued to apply the manifest-weight-of-the-evidence standard to the Commission's factual determinations. Freeman United Coal Mining Co. v. Industrial Comm'n, 188 Ill. 2d 243, 245 (1999); see also Interstate Scaffolding, Inc. v. Illinois Workers' Compensation Comm'n, 236 Ill. 2d 132, 142-43 (2010).
¶ 35 Having found that the de-novo and clearly-erroneous standards are inapplicable, we now consider whether the Commission's finding that the claimant failed to show that there was a causal connection between his bladder cancer and his employment with Pace was contrary to the manifest weight of the evidence.
¶ 36 As stated supra, we will overturn the Commission's determination on a question of fact
only if it is against the manifest weight of the evidence. Anderson, 321 Ill. App. 3d at 467. In deciding questions of fact, it is the function of the Commission to judge the credibility of the witnesses, determine the weight to be given their testimony, and resolve conflicting medical evidence. Tower Automotive v. Illinois Workers' Compensation Comm'n, 407 Ill. App. 3d 427, 435 (2011). "A finding of fact is contrary to the manifest weight of the evidence only where an opposite conclusion is clearly apparent." Metropolitan Water Reclamation District of Greater Chicago v. Illinois Workers' Compensation Comm'n, 407 Ill. App. 3d 1010, 1013 (2011). The relevant inquiry for us, as a court of review, is "whether there is sufficient evidence in the record to support the Commission's finding, not whether this court might have reached the same conclusion." Id.
¶ 37 An occupational disease is "a disease arising out of and in the course of employment ***." 820 ILCS 310/1(d) (West 2008). It is the claimant's burden to prove that he suffers from such a disease and that there is a causal connection between his disease and his employment. Omron Electronics, 2014 IL App (1st) 130766WC, ¶ 36. The Act does not require "proof of a direct causal connection." Sperling, 129 Ill. 2d at 421. Instead, "[a] causal connection may be based on a medical expert's opinion that an accident 'could have' or 'might have' caused an injury." Omron Electronics, 2014 IL App (1st) 130766WC, ¶ 38 (quoting Consolidation Coal Co. v. Industrial Comm'n, 265 Ill. App. 3d 830, 839 (1994)).
¶ 38 Section 1(d) of the Act, in pertinent part, provides:
"A disease shall be deemed to arise out of the employment if there is apparent to the rational mind, upon consideration of all the circumstances, a causal connection between the conditions under which the work is performed and the occupational disease. The disease need not to have been foreseen or expected
but after its contraction it must appear to have had its origin or aggravation in a risk connected with the employment and to have flowed from that source as a rational consequence.
An employee shall be conclusively deemed to have been exposed to the hazards of an occupational disease when, for any length of time however short, he or she is employed in an occupation or process in which the hazard of the disease exists[.]" (Emphasis added.) 820 ILCS 310/1(d) (West 2008).
The claimant points to the italicized language and relies on U.S. Industrial Chemical Co. v. Industrial Comm'n, 143 Ill. App. 3d 881 (1986), in support of the proposition that the Commission erred in considering the intensity of his exposure to diesel exhaust in making its determination that causal connection was lacking.
¶ 39 In U.S. Industrial Chemical Co., the Commission held that the claimant "was permanently disabled as a result of an occupational disease which arose out of and in the course of employment[.]" Id. at 890. On appeal, in arguing that the Commission's decision was contrary to the manifest weight of the evidence, the employer "point[ed] to [the claimant's] failure to introduce evidence regarding the amount, time and duration of exposure, the dosage, or specific chemicals actually involved." Id. The appellate court ultimately found that the Commission's decision was not against the manifest weight of the evidence. Id. at 890-91. In so holding, the court rejected the employer's argument regarding exposure, finding that it was not necessary to provide specific quantitative evidence of amount, time[,] and duration of exposure, or the dosage of chemicals involved. The court refused to expand the requirements for proving a causal connection by demanding more specific proof requirements. See id.
¶ 40 We agree with the holding in U.S. Industrial Chemical Co. In order to prove or disprove
casual connection, neither a claimant nor an employer is required to introduce evidence regarding the amount and duration of a claimant's exposure. Darling v. Industrial Comm'n, 176 Ill. App. 3d 186, 196 (1988) (discussing U.S. Industrial Chemical Co., 143 Ill. App. 3d at 890-91). "The relevant statutory language only requires that the disease appear to have had its origin or aggravation in a risk connected with the employment and to have flowed from that source as a rational consequence." (Internal quotation marks omitted.) U.S. Industrial Chemical Co., 143 Ill. App. 3d at 890. The Act and the holding in U.S. Industrial Chemical Co., however, certainly do not prohibit the introduction of quantitative evidence to prove or disprove causal connection. According to section 1(d) of the Act, a disease is an occupational disease "if there is apparent to the rational mind, upon consideration of all the circumstances, a causal connection between the conditions under which the work is performed and the occupational disease." (Emphasis added.) 820 ILCS 310/1(d) (West 2008). We find that the Commission properly considered all of the circumstances when it relied on Dr. Conibear's opinion that the claimant was in the intermediate group for exposure to diesel exhaust in determining that causal connection was lacking and that the claimant's bladder cancer was not an occupational disease.
¶ 41 The claimant finally contends that, based on the evidence presented, there can be no question that he suffered "chronic exposure" to diesel exhaust and that there was a causal connection between this exposure and his bladder cancer. In support of this argument, he posits that, although "[t]he scientific studies may not be unequivocal," "limited evidence" of an increased risk of bladder cancer from exposure to diesel exhaust, which was "enough" for Dr. Dybal to find a causal connection, is sufficient. The claimant further contends that Dr. Conibear's testimony was inconsistent with her report, and the articles that she relied upon
"actually support an association between bladder cancer and chronic exposure to diesel engine exhaust." We disagree.
¶ 42 The claimant is essentially urging us to reweigh the evidence and find that Dr. Dybal's opinion is more credible than Dr. Conibear's conflicting opinion; however, "where there is conflicting medical evidence as to whether a particular disability is sufficiently connected with the employment to constitute an occupational disease, it is the province of the Commission to resolve such differences." Downs v. Industrial Comm'n, 143 Ill. App. 3d 383, 389 (1986); see also Tower Automotive, 407 Ill. App. 3d at 435. The Commission, after considering all of the evidence, chose to accept Dr. Conibear's opinion that causal connection was lacking. While Dr. Conibear acknowledged that "some studies" show a positive association between bladder cancer and exposure to diesel exhaust, she explained that, collectively, the studies do not show a reliable association. She went on to opine that, to the extent that there is evidence of an association between bladder cancer and diesel-exhaust exposure, it is likely in the highest exposure group, which includes the occupations like mining and underground construction. Based upon three of the references from her June 18, 2013, report, Dr. Conibear believed that the claimant, as a mechanic, was in the intermediate exposure group and thus there was no causal connection between his cancer and his employment at Pace. Based upon the record, we cannot say that this resolution was contrary to the manifest weight of the evidence.
¶ 43 For the foregoing reasons, we affirm the judgment of the circuit court, which confirmed the Commission's decision on remand.
¶ 44 Affirmed.
¶ 45 PRESIDING JUSTICE HOLDRIDGE, dissenting:
¶ 46 I respectfully dissent. This is a relatively straight forward case that requires that the Commission's decision be reversed. As the majority correctly points out, a decision of the Commission regarding the causal relationship between a claimant's current condition of ill-being and exposure to occupational hazards is a question of fact that will not be overturned on appeal unless it is against the manifest weight of the evidence. U.S. Industrial Chemical Co., 143 Ill. App. 3d at 890. In the instant case, the majority has missed the mark. The overwhelming weight of the evidence clearly established that the claimant had met his burden of proving by a preponderance of the evidence that he was exposed to an occupational hazard, diesel exhaust fumes, which was a causative factor related to his developing bladder cancer during the course of his employment. When viewed against the evidence relied upon by the Commission to reach its conclusion, the opposite conclusion is clearly apparent, and the Commission's decision should be reversed.
¶ 47 The claimant met his burden of production regarding the causal link between his bladder cancer and the occupational hazard linked to his exposure to diesel exhaust. This evidence included the expert testimony of Dr. Dybal regarding the complete consensus of medical research that a causal link existed between chronic exposure to diesel fumes and bladder cancer. Dr. Dybal further testified that, while it was not possible to state a precise quantity of exposure that would be necessary to establish a causal link, based upon his understanding of the claimant's exposure on a daily basis, he was of the opinion that the claimant was subjected to chronic exposure sufficient to satisfy the causal link. Dr. Dybal also opined that the claimant's only risk factor for the development of bladder cancer was his chronic exposure to diesel fumes. In reaching his opinion regarding causation, Dr. Dybal found it significant that the claimant's
bladder cancer manifested as transitional cell cancer and not squamous cell cancer that is commonly associated with bladder infections and other causes.
¶ 48 Moreover, when questioned on cross-examination regarding the June 2012 IARC "press release" on the carcinogenic effects of diesel exhaust exposure, Dr. Dybal pointed out that the study referred to in the press release established a "positive association" between occupational exposure to diesel exhaust and bladder cancer. He observed that the study referenced in the press release comported with, rather than contradicted, all previous studies establishing a positive causal link between occupational exposure to diesel exhaust and the onset of bladder cancer. He noted further that the study highlighted the finding that the risk of bladder cancer from diesel fume exposure increased relatively as the degree of exposure increased. He noted that the study did not state that the risk of bladder cancer existed only at the highest levels of exposure.
¶ 49 When viewing the evidence presented by the claimant on the issue of causation, three key facts are clear: 1) all the medical literature presented to the Commission established that chronic exposure to diesel exhaust in an occupational setting increased the level of risk of developing bladder cancer; 2) Dr. Dybal, who was familiar with the claimant's job duties and occupational environment, opined to a reasonable degree of medical certainty that the claimant was "chronically exposed" to diesel exhaust sufficient to cause transitional cell bladder cancer; and 3) the record established that the claimant had no other risk factors which might cause him to develop transitional cell bladder cancer.
¶ 50 Against this overwhelming evidence supporting a causal link between the claimant's occupational disease and his occupational exposure to diesel exhaust, the Commission relied upon the opinion of the employer's physician, Dr. Shirley Conibear. While it is within the purview of the Commission to resolve differences in conflicting medical opinion evidence,
where the Commission assigns greater weight to one opinion over another the test is whether the evidence is sufficient to support the Commission's finding. Freeman United Coal Mining Co. v. Industrial Comm'n, 308 Ill. App. 3d 578, 585 (1999). Here the evidence fails that test. The record clearly reveals that the opinions of Dr. Conibear simply were unsupported, and in fact were contradicted by the medical literature upon which she claimed to base her opinion.
¶ 51 On the crucial question of whether the claimant was "chronically exposed" to diesel exhaust fumes sufficient to establish an increased risk of transitional cell bladder cancer, Dr. Conibear admitted to having no particular awareness of the claimant's level of exposure. While the majority correctly notes that neither party is required to present evidence regarding the amount or duration of a claimant's exposure when addressing the issue of causation, the claimant met his burden of proving sufficient "chronic" exposure through Dr. Dybal's opinion, which was based upon his treatment of the claimant. The employer's attempt to rebut this evidence through Dr. Conibear's unsupported opinion must fail. Dr. Conibear's opinion can only be characterized as—I have no idea how much diesel exhaust the claimant was exposed to, but it must have been less than the underground miners in the highest exposure group, so it is my opinion that the claimant's transitional cell bladder cancer was not causally related to his employment.
¶ 52 On the question of whether the claimant's bladder cancer could have been caused by non-occupational factors, Dr. Conibear's opinion is equally lacking in any support. She made no attempt to distinguish transitional cell cancer from squamous cell cancer, as Dr. Dybal had done, and she gave no opinion as to any alternative cause for the claimant's condition.
¶ 53 Lastly, on the question of whether the medical literature supported the claimant's causation argument, Dr. Conibear's opinion does not rebut Dr. Dybal's opinion that the claimant's employment exposed him to an increased risk of bladder cancer. Dr. Dybal noted that
all the studies addressed by both himself and Dr. Conibear concluded that employment exposure to diesel exhaust increased the risk of developing bladder cancer. While the increased risk was sometimes characterized as "a relative risk" based upon "limited evidence," a causal link was clearly established in all the studies presented. Neither expert testified to any scientific studies concluding that there was no link between exposure to diesel exhaust and bladder cancer. It is on this issue that Dr. Conibear's opinion is based on a completely false assumption. Her opinion that the claimant's bladder cancer was not causally related to his employment is supported only by her assumption that the studies had only established a causal connection between diesel exhaust exposure in the highest exposure group. As the majority characterizes her testimony, she concluded that the "intermediate group," to which the claimant apparently belonged, lacked any evidence of a causal connection. Supra ¶ 25.
¶ 54 In point of fact, the studies relied upon by Dr. Conibear do not conclude that there is a lack of a causal link between diesel exhaust exposure and bladder cancer in the "intermediate group." The studies cited by Dr. Conibear actually conclude that there was a greater risk of bladder cancer for those employed in the "highest exposure group" and a lesser, but still relatively significant risk, of bladder cancer for those employees in the "intermediate group." In common parlance, the studies showed that the higher one's exposure to diesel exhaust the greater the risk of developing bladder cancer. Likewise, the studies showed that, as the exposure to diesel exhaust decreased, the corresponding risk of developing bladder cancer decreased. The studies did not conclude, as Dr. Conibear opined, that only those employees in the highest exposure group were at any risk of developing bladder cancer. Her singular reliance upon that objectively faulty assumption renders her causation opinion valueless. The Commission's reliance upon her opinion was, therefore, against the manifest weight of the evidence.
¶ 55 To summarize, the claimant established, by a preponderance of the evidence that: 1) his employment led to his "chronic exposure" to diesel exhaust; 2) chronic exposure to diesel exhaust was a scientifically recognized causative factor in the development of transitional cell bladder cancer; 3) scientific studies established that the risk of developing bladder cancer increased as the degree of occupational exposure increased; 4) the claimant was employed in an occupational group that subjected him to a scientifically measurable "intermediate" level of risk of developing bladder cancer, i.e., a risk greater than the public at large; and 5) his treating physician found no other risk factors were present to account for the claimant's bladder cancer.
¶ 56 These facts, unless rebutted by competent evidence, clearly established the requisite causal connection between the claimant's occupational exposure and his disease. The record contains no competent evidence in rebuttal to the claimant's case. There was no evidence that the claimant's exposure to diesel exhaust was not "chronic" as that term was used in the scientific literature; there was no evidence to support a conclusion that the claimant was not exposed to an increased relative risk of developing bladder cancer linked to his "intermediate" exposure; and there was no evidence that would support a finding that the claimant's transitional cell bladder cancer was caused by any other risk factor not related to the elevated risk associated with diesel exhaust exposure. Simply put, the claimant established his burden of proving a causal relationship between his employment and his current condition of ill-being, and the employer presented nothing but an unsupported and objectively erroneous opinion to the contrary.
¶ 57 I would hold that the Commission's finding that the claimant had failed to establish a causal connection between his disease and the risks associated with his employment was against the manifest weight of the evidence. I would reverse the Commission's decision and remand for further proceedings consistent with that holding. I dissent on that basis.