Joseph P. Basile, Chicago
E-mail Joseph P. Basile
Claimant Failed To Prove Irritant-Induced Bronchial Reactivity or Permanent Exacerbation of Preexisting Asthma from Exposures to Fumes
In Ameren Illinois v. Illinois Workers’ Compensation Commission, 2024 IL App (5th) 220606WC-U, the court found that the Commission’s original decision was not against the manifest weight of the evidence. The Commission found the claimant failed to prove that he suffered from a permanent and irreversible condition of irritant-induced bronchial reactivity and affirmed and adopted the arbitrator’s decision. 2024 IL App (1st) 231470-U at ¶1. The circuit court found that the decision was against the manifest weight of the evidence and remanded the case to the Commission. On remand, the Commission awarded the claimant medical expenses, temporary total disability benefits, and permanent and total disability benefits. The employer appealed the decisions.
The claimant was employed as a gas journeyman who repaired and replaced natural gas lines. He alleged that he inhaled chemical fumes on September 4, 2013, and October 8, 2014. 2024 IL App (5th) 220606WC-U at ¶2. The first incident occurred while determining whether a gas line still contained gas. He had to rupture the line and as a result, a liquid came out that turned red and foamy. He had difficulty breathing and a tight chest. He was taken to a hospital where his oxygen saturation levels were noted as normal. His partial pressure of oxygen in his arterial blood gas was 71 millimeters of mercury (mm Hg), which was considered low with a normal range being 75 – 100 mm Hg. 2024 IL App (5th) 220606WC-U at ¶12. This finding was in line with a result of 68 mm Hg obtained 14 years earlier. Id. The diagnosis was a respiratory problem as the primary impression and bronchitis and chemical exposure as additional impressions. Medications were prescribed, and the claimant was told to follow up with his personal physician and released to light duty. 2024 IL App (1st) 231470-U at ¶13.
The claimant was off work for two days and returned to his regular position for nine months until May 12, 2014. 2024 IL App (1st) 231470-U at ¶14. He saw Dr. Adele Roth on September 9, 2013, who had been his personal physician since 1999. He told her he had a persistent cough for five days. 2024 IL App (1st) 231470-U at ¶15. Her exam revealed a normal respiratory rate with diffuse inspiratory and expiratory wheezes. Id. She diagnosed acute bronchitis and told him to continue with the albuterol inhaler she first prescribed in 2002. Id. At an appointment on September 19, 2013, she diagnosed acute sinusitis, instructed him to continue using the inhaler, and referred him to Dr. Peter Tuteur at Washington University. 2024 IL App (1st) 231470-U at ¶16.
He presented to Dr. Tuteur on November 6, 2013, and described the exposure to the fumes from the reddish foam causing chest tightness, shortness of breath, coughing, and a rusty sewer fluid taste in his mouth. The claimant told Dr. Tuteur he could no longer shovel continually and reached a plateau of 10 to 15 minutes before having to stop. 2024 IL App (1st) 231470-U at ¶17. Dr. Tuteur’s report noted the symptoms of breathlessness were triggered by increasing exercise, cold air, fossil fuel combustion, barbeque smoke, cleaning solutions, and other irritants. Id. The report stated that when this develops, he takes an albuterol inhaler, which provides some relief in a half hour, but it takes more than an hour and a half to return to baseline. Id. At the time Dr. Tuteur had the understanding that the claimant was previously free from breathing difficulties. A pulmonary function study taken at this appointment revealed a minimal obstructive abnormality. A methacholine challenge test was positive for bronchial reactivity. Dr. Tuteur’s diagnosis was an irritant induced bronchial reactivity. 2024 IL App (1st) 231470-U at ¶¶19 – 20.
At an appointment with Dr. Roth on November 14, 2013, she found a normal respiratory rate and pattern with normal breath sounds. 2024 IL App (1st) 231470-U at ¶21. She diagnosed reactive airway disease and noted the claimant was first diagnosed with asthma in adulthood and that this current exacerbation began six weeks ago. Id. At the annual appointment with Dr. Roth on May 9, 2014, he complained of shortness of breath. She found a normal respiratory rate pattern with no distress but coarse breath sounds. 2024 IL App (1st) 231470-U at ¶23.
The claimant saw Dr. Tuteur on May 9, 2014, telling him that at work he would experience serious pulmonary problems. The claimant related exposures to vehicle exhaust in the parking lot, gas odors in the mechanic shop, and cold air among others. Id. He also related that going to restaurants and commercial venues often initiated exacerbations requiring use of the inhaler. Id. Dr. Tuteur ordered a pulmonary function study that he interpreted as demonstrating marked bronchial reactivity, which compared to previous studies reflected a more severe obstruction. Dr. Tuteur was concerned there could be initiation of bronchial remodeling or scarring of bronchial passages. 2024 IL App (1st) 231470-U at ¶24. He diagnosed “severe irritant induced workplace associated bronchial reactivity,” which was “permanent and irreversible.” 2024 IL App (1st) 231470-U at ¶25. He recommended environmental controls at home and concluded that it was medically contraindicated to return to the workplace. Id. Consequently, the claimant was off work on disability from May 1, 2014, to September 21, 2014. 2024 IL App (1st) 231470-U at ¶26.
Dr. Thomas M. Hyers, a pulmonologist, examined the claimant pursuant to §12 of the Workers’ Compensation Act, 820 ILCS 305/12, et seq., on September 9, 2014. 2024 IL App (1st) 231470-U at ¶29. Dr. Hyers knew the claimant had preexisting asthma, which was contained in the medical records prior to the workplace exposure. He disagreed with Dr. Tuteur’s diagnosis, stating the workplace exposure did not cause the asthma. He further stated that any exacerbation of the asthma symptoms from the workplace exposure resolved by the time of his visit with Dr. Roth on September 19, 2013. 2024 IL App (1st) 231470-U at ¶30. Dr. Hyers found no permanent disability.
The claimant returned to work full time on September 22, 2014, and experienced a second exposure on October 8, 2014. 2024 IL App (1st) 231470-U at ¶¶30 – 31. These consisted of mercaptan, the odorant added to natural gas and fumes from propane fueled forklifts, and diesel fumes from trucks. 2024 IL App (1st) 231470-U at ¶32. He was taken to St. Elizabeth’s Hospital where Dr. Roth examined him. She described the patient as comfortable with no objective symptoms of respiratory distress. She chose to keep him overnight for observation. He was discharged the next day.
On March 30, 2015, Dr. Anne-Marie M. Puricelli performed an independent medical examination because of his claim for disability insurance benefits. 2024 IL App (1st) 231470-U at ¶36. She diagnosed reactive airway disease and opined he was not able to work as a gas journeyman leadman. She examined him at the respondent’s request on April 18, 2017, and arrived at the same diagnosis and felt he was “currently disabled from all occupations.” 2024 IL App (1st) 231470-U at ¶37.
The question on appeal was whether Commission’s initial decision was against the manifest weight of the evidence. The Commission found the claimant failed to prove any permanent ill effects from the two exposures. The respondent had paid for medical treatment and other benefits for the temporary exacerbations. The Commission found that any perceived progression of symptoms would be compatible with the claimant’s ten plus year history of symptoms compatible with asthma. 2024 IL App (1st) 231470-U at ¶46. The respondent argued this finding was reasonable based on Dr. Hyers’ opinions. The claimant argued the Commission’s decision was unreasonable because Dr. Anderson, Dr. Tuteur, and Dr. Puricelli determined he was unable to work after the two exposures and because, after the exposures, he required the constant use of steroids, emergency inhalers, oxygen, and strict environmental controls. 2024 IL App (1st) 231470-U at ¶47.
The court’s opinion comments the fact that the two exposures caused the claimant to become more bronchial reactive is not the only reasonable inference. “An alternative reasonable inference is that his asthma attacks from the two exposures were symptomatic of, or indicative of, naturally worsening asthma.” 2024 IL App (1st) 231470-U at ⁋48.
For the court, Dr. Tuteur’s theory of the remodeling or irritation of the bronchial areas could only be objectively determined if a series of biopsies by bronchoscope were performed based on Dr. Tuteur’s testimony. Dr. Hyers regarded such remodeling as unsubstantiated. Dr. Hyers testified that exacerbations of asthma can lead to remodeling in general, but he could not say what happened with the claimant’s airways and that neither could Dr. Tuteur.
The court’s opinion comments that the Commission had the right to believe Dr. Hyers’ testimony over Dr. Tuteur’s. Dr. Hyers examined the claimant and reviewed the medical records that Dr. Tuteur did not initially review before Dr. Tuteur arrived at his opinion on causation. Dr. Hyers felt the two asthma attacks were consistent with asthma attacks the claimant had once a year from 2009 – 2013. 2024 IL App (1st) 231470-U at ⁋54. Medical records showed that from May 1999 to August 2013, the claimant had 15 or 16 separate occasions of pulmonary symptoms. Id. Thus, it was reasonable for the Commission to believe Dr. Hyers over Dr. Tuteur, and the court could not say it was clearly evident that Dr. Tuteur was more credible than Dr. Hyers.
Finally, the court noted that while there was evidence that the claimant’s asthma was substantially worse since the exposures, it was for the Commission to decide what inferences should be drawn from the evidence. “Correlation is not necessarily causation.” 2024 IL App (1st) 231470-U at ⁋56. That the two exposures caused the asthma to become worse is not the only reasonable inference especially considering he worked on gas lines for more than 20 years and benzene and mercaptan were used. “The Commission might have had an unanswered question of what made these two chemical exposures objectively different from those [the claimant] must have experienced plenty of other times in his career as a gas journeyman.” Id.
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