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No. 3--05--0226WC

______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

WORKERS' COMPENSATION COMMISSION DIVISION

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JUSTICE CALLUM delivered the opinion of the court:

I. INTRODUCTION

Alleging that she developed respiratory illness and chemical sensitivity while working foremployer, Huntsman Chemical Company, claimant, Arlene Bernardoni, filed an application foradjustment of claim under the Workers' Occupational Diseases Act (Act) (820 ILCS 310/1 et seq.(West 1994)). An arbitrator awarded claimant $13,309 in medical expenses and found that she waspermanently and totally disabled. The Industrial Commission⁽¹⁾ (Commission) disagreed with thearbitrator and found instead that claimant's smoking caused her condition, which was temporarilyaggravated by a work-related exposure to a cleaning agent. It awarded claimant 12³/₇ weeks oftemporary total disability (TTD) benefits and $1,010.57 in medical expenses. In ruling, theCommission refused to consider claimant's expert evidence on multiple chemical sensitivity (MCS). On judicial review, the trial court confirmed the Commission's decision.

On appeal, claimant argues that (1) the Commission erred in finding that the testimony of hertreating physician about MCS was inadmissible because the diagnosis of MCS is not sufficientlyestablished to have obtained general acceptance in the medical community; and (2) the Commission'sdecision that claimant's condition of ill-being was caused by her smoking and not her exposure tochemicals while working in employer's plant is against the manifest weight of the evidence. Weaffirm.

II. BACKGROUND

Filed in 1995, the original application for adjustment of claim alleged that, on February 22,1994, "[w]hile cleaning carpet, [claimant] was exposed to chemicals resulting in injury to wholebody." In 1998, claimant amended the application to allege that she was "also exposed to otherchemicals during the 14 years of employment by" employer.⁽²⁾ As a result of the exposures, claimantdeveloped chemical sensitivity.

The arbitration hearing took place on April 17, 2002, and May 23, 2002. Claimant testifiedthat she began smoking cigarettes in 1964, at age 21. She smoked approximately one pack per dayuntil she stopped smoking regularly in October 1994. Twice, she resumed smoking for short periods,two-and-a-half months and three months, but quit. In July 1978, claimant began working forAmerican Hoechst, employer's predecessor in interest. Employer purchased the plant in 1986, atwhich time claimant was laid off. Claimant returned to work for employer in 1990. While she waslaid off, claimant worked as a dental hygienist and a waitress. She returned to work for employerbecause she could earn more money.

When she began working for American Hoechst in 1978, Claimant worked as an extrusionoperator for less than six months. That position involved mixing batches of chemicals and pouringthem into the extruder. During most of her tenure, claimant worked as a poly operator in building4 on the plant site. She worked significant overtime in this position, which involved the manufactureof polysterene pellets. Claimant spent part of her time in the control room using a computer. Also,her duties involved adding chemicals, including styrene monomers, which is a catalyst, and flameretardants to the batch tanks. Claimant identified another chemical, pentane, that also was presentin the tanks. Every 30 minutes, claimant had to go onto the production floor to take samples of thebatches. This involved opening the sample port and dipping a test tube attached to a stick into thebatch. The chemical mixture was hot, approximately 240 degrees, and "steam and fumes just boiledout." The fumes had an odor similar to that of a petroleum product. The sample port was kept openno longer than five minutes. When the batch was complete, claimant dumped the contents of thetanks into a wash basin. Claimant testified that, during the time that she was exposed to the contentsof the tanks, she experienced burning in her eyes, nose, and lungs; coughing; and difficulty breathing. While testing, claimant wore goggles but had no breathing apparatus.

Claimant testified that she also came into contact with toulene, which was an acetone usedto clean the tanks. While using this product, claimant experienced burning in her throat and chestpain that sometimes lasted for days.

The parties stipulated to the admission of material safety data sheets (MSDS) listing thechemicals that were used in employer's manufacturing process during the periods claimant workedfor employer. Among the chemicals on the list were styrene monomer, toulene, polysterene, andpentane. The MSDS revealed the following. Inhaling styrene monomer fumes may cause irritationof the respiratory tract and occupational asthma. Overexposure to styrene vapor may causeheadache, dizziness, lack of coordination, fatigue, and nausea. Inhalation of high concentrations oftoulene may cause headache and dizziness. Inhaling toulene vapor may cause respiratory tractirritation. Inhaling polysterene vapor may cause dizziness, drowsiness, loss of coordination,headache, nausea, and vomiting. Inhalation of vapors or mist may cause irritation of the respiratorytract and delayed lung injury. Inhaling pentane may cause dizziness or difficulty breathing if inhaled. Potential health hazzards are irritation of the respiratory tract, pneumonia, pulmonary edema, andcentral nervous system depression.

Claimant testified that, between 1978 and 1986, she suffered from colds and bronchitisfrequently and constantly felt extremely tired. When she returned to work at the plant in 1990,claimant worked again as a poly operator and experienced the same symptoms. She felt tired andweak and became sick while cleaning her home or filling her car with gasoline. The odor of apermanent marker or pesticides bothered her. She frequently experienced deep coughing andheadaches.

Claimant began treating with Dr. Ramon Inciong, her primary care physician, in December1992. She complained of head congestion and head, chest, and muscle aches. She reported coughingup green sputum. In June 1993, Dr. Inciong saw claimant and reported that claimant's lungs wereclear and there were no signs of wheezing. His impression was acute bronchitis. He prescribedantibiotics and cough medicine.

In 1993, claimant transferred to a building maintenance job that paid less than what she madeas a poly operator. She worked 40 hours per week. In her new position, claimant spent about fivehours per shift in building 4 and the remainder of her time in employer's office building next to theplant. While cleaning in building 4, claimant experienced burning in her nose and lungs.

On February 22, 1994, claimant was using a 3M spot cleaning product to clean carpeting atwork. Shortly thereafter, she began coughing and experienced headache, nausea, weakness, and asore nose and throat. The MSDS for this product stated that overexposure to vapors may causerespiratory system irritation and light-headedness.

On March 8, 1994, claimant saw Dr. Inciong and reported the carpet cleaning incident. Shecomplained of unproductive coughing and pain in her lungs. Dr. Inciong's impression was asthmaticbronchitis. He noted, "[w]ill treat the patient with Prednisone and [B]iaxin. This may be related tooccupation[al] exposures to noxious fumes." Claimant saw Dr. Inciong again on March 22, 1994,and reported that her symptoms had not improved. Dr. Inciong noted that "[t]his is possibly due tosmoking. More likely, the story appears that the patient had inhaled fumes at work, and [this] mayhave caused this prolonged, but hopefully transient phenomenon of bronchospasms and edema of thebronchial linings." He diagnosed early chronic bronchitis, prescribed steroids and inhalers,recommended that claimant stop smoking, and referred claimant to Dr. Bernard Taylor, apulmonologist.

On March 23, 1994, claimant saw Dr. Taylor. A chest X ray was clear, and pulmonaryfunction tests revealed a reduced FEV₁. Dr. Taylor's impression was that the cleaning agent may havecaused some type of obstruction, possibly asthma. On April 15, 1994, claimant underwentmethacholine challenge and pulmonary function tests. The results were consistent with reversibleairways disease and mild obstructive lung disease. On April 27, 1994, claimant saw Dr. Taylor andcomplained of shortness of breath and coughing. Dr. Taylor reviewed claimant's test results anddiagnosed bronchospastic disease. He mentioned the possibility of claimant finding a different job. He instructed claimant to taper her use of Prednisone and prescribed Proventil and Atrovent inhalers.

On May 25, 1994, Dr. Ricardo Calderon reviewed claimant's medical records at employer'srequest. He opined that claimant suffered from a mild underlying pulmonary obstructive disease thatwas probably secondary to her smoking. Claimant appeared to suffer an exacerbation of herunderlying disease when exposed to the cleaning solutions. According to Dr. Calderon, claimant seemed "to have been treated appropriately for both the exacerbation as well as her underlyingproblems."

On June 23, 1994, Dr. Inciong reported that claimant's asthmatic bronchitis had fully resolved. In October 1994, claimant saw Dr. Inciong and complained of a cough that occasionally producedyellow sputum. An X ray taken on October 12, 1994, contained findings consistent with chronicobstructive pulmonary disease (COPD). Dr. Inciong diagnosed acute bronchitis and referred her tothe Mayo Clinic.

On November 28, 1994, claimant saw Dr. Edward Rosenow of the Mayo Clinic. Dr.Rosenow diagnosed possible hyperreactive airways disease. In his report, Dr. Rosenow stated thathe did not know how to answer whether the cleaning solvent claimant was exposed to on a singleoccasion precipitated her cough symptoms. He viewed this type of exposure as very unusual inprovoking cough. Accordingly, he stated "I can only say it may have aggravated the situation, butmost commonly we think of viral tracheobronchitis that sets this off more than anything else, andmaybe the two happened to co-exist at the same time."

On April 20, 1995, claimant saw Dr. Inciong and complained of a persistent cough thatseemed worse whenever she was at work. She reported that she felt well for two weeks whilevacationing in California. Claimant began coughing again, however, because a woman sitting nextto claimant during the plane ride home was wearing nail polish. Dr. Inciong diagnosed COPD. Headvised claimant to remain off of work for two weeks in an attempt to determine whether her workenvironment was aggravating her condition.

On April 28, 1995, claimant saw Dr. Inciong again and reported that her cough had subsidedand that she was feeling well. Dr. Inciong noted that, during the previous visit, not one minute passedwithout claimant coughing. The congestion and bronchospasms were evident. During the April 28visit, claimant did not cough once and appeared to be feeling much better. She reported that the lasttime she felt this well was during her California vacation. Dr. Inciong diagnosed acutebronchospasms. He noted that her condition "is most likely related to exposure to the chemicals thatshe works around at work. It is obvious that she does very well when she gets away from herworking environment and as soon as she goes back to work, the cough recurs." He advised claimantto return to work to find out if her cough returns.

On May 19, 1995, Dr. Inciong reported in a letter addressed to employer that claimant hadbeen suffering from chronic respiratory symptoms that had not responded to medication. Claimant'ssymptoms resolved after remaining off of work for two weeks. When claimant returned to work afterher April 28, 1995, visit, her symptoms returned. Dr. Inciong opined that claimant's workingenvironment was the precipitating cause of her illness and all of her symptoms and recommended thatshe no longer work in such an environment. Claimant left her job with employer shortly thereafter.

On May 24, 1995, claimant saw Dr. Calderon. He diagnosed "breathing disorder, withexacerbations noted due to chemical exposure." He advised claimant that, if two pulmonologistsrecommended that she should not return to work, then she probably will not be able to return to herformer position.

On October 31, 1995, claimant saw Dr. Frank Becker, a pulmonary specialist, at employer'srequest. Claimant reported that she had suffered from a cough since the carpet cleaning incident inFebruary 1994. Claimant identified the 3M spot cleaner and two other cleaning products to whichshe was exposed while at work. During the examination, claimant did not exhibit any signs ofwheezing, which would have been an indication of asthma or bronchitis. She had a positive reactionto the methacholine challenge, however, which was consistent with reactive airways disease.

Dr. Becker believed that claimant suffered from reactive airway disease but that the etiologyof the condition was in question. He stated that "there is no evidence in the literature that any of thesubstances to which [claimant] was exposed can cause reactive airway disease. In contrast, there isa plethora of evidence *** that unequivocally does indicate that smoking causes reactive airwaydisease." Accordingly, Dr. Becker opined that it was significantly more likely that claimant'scondition was the result of smoking rather than any chemical exposure. He recommended avoidingexposure to the cleaning product if it was irritating claimant. Claimant suffered from no condition,however, that would prevent her from working. During his deposition, Dr. Becker opined that thereis very little scientific evidence to suggest that MCS exists as a syndrome or a diagnosis.

Dr. Becker testified that claimant attributed her symptoms only to the cleaning product towhich she had been exposed and did not refer to any other chemicals. He explained that he had adifficult time obtaining the specifics of what claimant did at employer's plant before becoming amaintenance worker. Because most of the history claimant provided seemed to focus on the cleaningproducts as the source of claimant's complaints, Dr. Becker focused on those chemicals. Heacknowledged that his impression when he examined claimant was that she had only a minimalexposure to chemicals.

Also, Dr. Becker acknowledged that there is a link between certain chemicals used in plasticsmanufacturing and obstructive lung disease. He opined, however, that the "fact that she was havingthese attacks in public would [suggest] that it did not have anything to do with what was going onat work."

Claimant saw Dr. Inciong twice in December 1995. She complained of cough, body aches,weakness, dizziness, and stomach and back pain.

On March 28, 1997, claimant began treating with Dr. Marsha Vetter. Dr. Vetter has an M.D.and a Ph.D. in microbiology and immunology and specializes in environmental medicine. Claimantcomplained of fatigue, burning in the nose and chest, dizziness, weakness, and difficultyconcentrating. She reported that, since leaving her job with employer, she had been limiting herexposure to chemicals and was doing fairly well.

Skin testing revealed sensitivity to, among other things, formaldehyde; orris root, which is acomponent of perfumes; phenol; and diesel fuel. Dr. Vetter started claimant on a variety ofsupplements to boost her immune system, antioxidants, and inhalant antigens. Claimant saw Dr.Vetter three more times, the last visit being on April 10, 1998. In April 1998, claimant reported thatthe inhalant helped but still complained of fatigue, burning nostrils, and chest pain.

During her deposition, Dr. Vetter explained that susceptibility to chemicals can be the resultof cumulative exposures. "It can persist and it can spread until it involves a wide variety of chemicalcompounds that were never a problem before ***. And, why this occurs physiologically, I believeno one knows the answer."

Dr. Vetter acknowledged that MCS is very controversial. She explained that

"a pulmonologist is not going to believe that chemical sensitivity exists because theysay there is no literature. *** [T]he literature that they read is different than the literature weread. They don't consider that anything significant. ***

*** [W]e also have a peer review journal, but, *** because they've been told inmedical school and along their training that this is not science, they're not going to pay anyattention to any of that literature."

Dr. Vetter testified that she relied on materials published by the American Academy of EnvironmentalMedicine and Dr. William Rea's treatise on chemical sensitivity (W. Rea, Chemical Sensitivity(1995)). According to Dr. Vetter, Dr. Rea "is an internationally recognized expert on chemicalsensitivity, also a controversial individual."

Dr. Vetter opined that claimant's history and symptoms were consistent with chemicalsensitivity. She reviewed the MSDS for the cleaning product claimant used in February 1994 andnoted that it stated that exposure to the vapors could cause respiratory system irritation andlightheadedness. Dr. Vetter explained that claimant's development of chemical sensitivity was acumulative process involving repeated low-level exposures with the triggering event being theexposure to the cleaning product in February 1994. Also, Dr. Vetter reviewed the MSDS describingother chemicals present in claimant's workplace and opined that these substances could causechemical sensitivity. She noted that the MSDS for several of the chemicals stated that the symptomsof exposure included headache; dizziness; and eye, nose, and throat irritation. Dr. Vetter opined that"after her 14 years of working in the chemical plant and her exposure to the cleaning products,[claimant] had definitely gotten to a point where she was very sensitive to a variety of differentcompounds." She acknowledged that it was likely that both claimant's smoking and her chemicalexposures at employer's plant contributed to claimant's chronic cough. Claimant needed to be in anenvironment where she could control her exposure to chemicals. Accordingly, a chemical plant wasnot an ideal place for claimant to work. Also, because there are many chemicals present in a dentist'soffice, claimant should not return to work as a dental hygienist. Dr. Vetter opined that claimant'scondition was permanent.

Dr. Vetter explained that there was no inconsistency between her diagnosis and the earlierdiagnosis of bronchitis. She agreed that claimant's history of smoking contributed to her condition.

On December 16, 1997, claimant saw Dr. Katherine Duvall and complained of coughing,weakness, shakiness, and nose and throat soreness exacerbated by certain fumes and odors such asthose of cleaning compounds, perfumes, insecticides, hair spray, nail polish, and gasoline. Dr. Duvalldiagnosed chronic obstructive lung disease which was most likely related to claimant's smoking and exacerbated by her exposure to cleaning solvents while working for employer. Dr. Duvall believedthat claimant's condition likely was permanent. Dr. Duvall felt that the MCS diagnosis was morecontroversial. In some respects, claimant did not qualify for such a diagnosis because one of thecriteria is normal pulmonary test results, which claimant did not have. Claimant's chemical sensitivitylikely was related to her hyperreactive airways disease. Such chemical sensitivity was not an unusualcomplaint for individuals with reactive airway dysfunction syndrome. Dr. Duvall recommended thatclaimant avoid respiratory irritants when possible.

During his deposition, Dr. Inciong testified that, when a person has a reactive airways disease,there are different irritants that can trigger bronchial spasms. Those irritants can be anything in theair such as an infectious agent, pollen, dust, or chemicals. When asked whether a chemical sensitivitycould trigger bronchitis, Dr. Inciong stated, "she does have a sensitivity. *** When I say that, I'mraising the possibility that she's *** sensitive to the chemical. So, yes, it would be a chemicalsensitivity." Also, if a patient was sensitive to one chemical, he or she may potentially becomesensitive to any number of chemicals or other irritants. Dr. Inciong opined that claimant's exposureto chemicals at work was a causative factor in her condition of ill-being. He acknowledged thatclaimant's condition did not fit neatly into any single, simple diagnosis.

A pulmonary function test conducted in June 1999 revealed results consistent with COPD. Dr. Inciong did not see claimant from 1996 until December 1999. He was aware that, during thatperiod, claimant was treating with other physicians for her pulmonary condition. In December 1999,claimant complained of cough, wheezing, and shortness of breath that became worse when she lefther home. Dr. Inciong prescribed inhalers and medications and instructed her to avoid environmentsthat were likely to trigger her symptoms.

Respondent offered the evidence deposition of Dr. Marcus Bond, who specialized inoccupational medicine and toxicology. He no longer treated patients and instead did consulting workfor companies in the chemical industry. Dr. Bond never examined claimant but had reviewed hermedical records. His report referenced the MSDS for 13 common chemicals "used by janitors andothers for maintaining a clean and sanitary building environment." Dr. Bond testified that he alsoreviewed the MSDS of four chemicals used in employer's manufacturing process. According to Dr.Bond, the American Medical Association, the American Academy of Allergy and Immunology, theAmerican College of Physicians, and the American College of Occupational and EnvironmentalMedicine do not recognize MCS as an condition that can be verified through established scientificprocedures. Dr. Bond opined that there was no scientific basis for recognizing MCS as an illness.

Employer introduced as deposition exhibits several medical journal articles addressing MCS. Representative of the conclusions that the authors of these articles reached is the following conclusionof the Council on Scientific Affairs of the American Medical Association: "(1) there are no well-controlled studies establishing a clear mechanism or cause for [MCS]; and (2) there are no well-controlled studies providing confirmation of the efficacy of the diagnostic and therapeutic modalitiesrelied on by those who practice clinical ecology." Council on Scientific Affairs, Council Report:Clinical Ecology, 268 J.A.M.A. 3465, 3467 (1992).

Accordingly, Dr. Bond disagreed with Dr. Vetter's diagnosis. He testified that Dr. Vetter wasnot able to explain why she believed claimant suffered from MCS. Also, all of the testing that Dr.Vetter performed on claimant, such as blood and urine tests, yielded normal results.

Dr. Bond toured employer's plant. He did not notice any chemical odors and did not observeany operations that would have allowed styrene or pentane vapors to be present in the plant'satmosphere.

Dr. Bond believed that claimant suffered from mild chronic obstructive lung disease causedby smoking and that her condition improved after she stopped smoking. Dr. Bond also believed thatclaimant could work. He did not believe that any of the chemicals described in the MSDS were acontributing cause of claimant's condition and did not see anything in the materials that he reviewedindicating that anything other than smoking caused claimant's condition. When asked whether anyof the chemicals used in the manufacture of polysterene pellets could cause reactive airways disease,Dr. Bond replied, "you'd have to figure in a dose because, obviously, most people don't get reactiveairways disease *** who work with monomers or pentane or polysterene and so on."

In 1999, claimant began receiving Social Security Disability benefits. At the time of thehearing, claimant had been using oxygen for about six years. Being near cologne or cleaning agentswas difficult for claimant. She generally stayed at home and avoided any cleaners or hygienicproducts that were scented. Neighboring farmers notified claimant when they planned to spraypesticide, and claimant stayed with her daughter while the crops were being sprayed.

In 1998, claimant started her own business, Valley Massage and Reflexology, which she ranout of her home. She used only unscented oils and instructed her clients not to wear any perfume orother chemicals. Claimant earned $1,331 in 1999, $1,327 in 2000, and $1,154 in 2001.

An arbitrator awarded claimant $13,309 in medical expenses and found that she waspermanently and totally disabled. The arbitrator found that claimant's exposure to chemicals duringthe course of her employment with employer was a cause of her present condition of ill-being. Thearbitrator ruled that Dr. Vetter was qualified to testify as an expert about causation.

The Commission found that claimant was temporarily totally disabled from March 15, 1994,through May 8, 1994, or 12³/₇ weeks, and awarded claimant $1,010.57 in medical expenses. TheCommission ruled that, because MCS is not sufficiently established to have gained general acceptancein the medical community, Dr. Vetter's testimony about claimant's MCS diagnosis and causationshould not have been admitted. According to the Commission, claimant's condition was bestdescribed by Dr. Inciong and others as obstructive lung disease with a reactive component. Claimant's condition before February 22, 1994, was a "smoking/viral" related condition and wasunrelated to her work environment. Claimant's February 22, 1994, exposure did not result in anyserious or permanent disablement. Claimant returned to unrestricted work on May 9, 1994, and, onJune 23, 1994, Dr. Inciong noted that claimant's asthmatic bronchitis was fully resolved. Claimant'ssubsequent persisting problems represented her preexisting, baseline smoking/viral condition.

The Commission found further that, even if claimant's current condition of ill-being wascausally related to her work environment, there was no basis for awarding permanent total disabilitybenefits. According to the Commission, no physician opined that claimant was permanently andtotally disabled, and there was no basis to conclude that claimant was obviously permanently andtotally disabled. Although there was evidence that claimant could not return to her job withemployer, the evidence did not establish that she could not work anywhere else. There was noevidence of a job search or expert vocational testimony to establish that claimant fell in the "odd-lot"category.

The trial court confirmed the Commission's decision. Claimant timely appealed.

III. DISCUSSION

A. Admissibility of Expert Testimony on MCS

Claimant argues that the Commission improperly excluded Dr. Vetter's testimony about MCS. Except when the Act provides otherwise, the Illinois rules of evidence govern proceedings before anarbitrator or the Commission. 50 Ill. Adm. Code