dissenting:
In his special concurrence, Justice Rarick recognizes that the rule imposing the burden of compensation for damage done by the hazard of an occupational disease on the last employer to expose the employee to the hazard saves the employee the “the difficult, and often insurmountable, burden” of proving “how much disability is attributable to which employer.” 326 Ill. App. 3d at 606. No doubt, such solicitude for the employee is faithful to the conviction that the Workers’ Occupational Diseases Act is “a humane law of a remedial nature whose fundamental purpose is to provide employees and their dependents prompt, sure and definite compensation, together with a quick and efficient remedy, for injuries or death suffered in the course of employment” (General American Life Insurance Co. v. Industrial Comm’n, 97 Ill. 2d 359, 370, 454 N.E.2d 643 (1983)). Certainly, the “last exposure” rule should continue to protect the employee who is unable to apportion his disability between employers. However, where, as here, the employee has sustained what Justice Rarick describes as the “difficult” and nearly “insurmountable” burden of proving that each period of employment resulted in a discrete amount of permanent partial disability, and yet finds himself without sufficient compensation, not through lack of proof, but simply because he did not timely seek compensation for the full measure of his disability from the last employer to expose him to the hazard, it is clear to me that the good intentions behind the rule have thwarted the humanitarian intentions behind the Act itself. Under the rules of procedure, it is too late for claimant to seek additional compensation from Silgan; he is left with, perhaps, a claim against his attorney.
The Act is to be construed liberally to effectuate its humanitarian purpose. General American, 97 Ill. 2d at 370, 454 N.E.2d at 649. In my view, the majority’s reading of section 1(d) of the Act is neither appropriately liberal nor consistent with supreme court precedent.
The majority’s definition of “last exposed” is difficult to reconcile with how the phrase is applied in Thermos Co. In Thermos Co., the claimant worked on an assembly line in the presence of chemical and plastic fumes. In October 1968, she was diagnosed with acute bronchitis. In March 1969, she was diagnosed with acute pharyngitis with laryngitis. She was diagnosed on January 18, 1971, with pneumonia, acute tracheobronchitis, and acute bronchial asthma. Her doctor removed her from work. By the time that claimant returned to work in January 1972, the employer had switched insurance carriers. Claimant was assigned to a different location in the employer’s plant to avoid exposure to the noxious fumes. In October 1972, she again was exposed to harmful fumes in the employer’s plant. Complaining of coughing and wheezing, she consulted a doctor in November 1972 and was diagnosed with acute bronchial asthma. Claimant took another job but, at the time of the hearing, was still suffering from chest pains and shortness of breath.
Based on the records of the claimant’s treatment, the arbitrator found that claimant was “last exposed to the hazards of an occupational disease” on January 18, 1971, and awarded her compensation for temporary total incapacity from that date forward. Thermos Co., 83 Ill. 2d at 57, 413 N.E.2d at 1247. The arbitrator also found that an occupational disease had caused a permanent partial disability. The issue on appeal was which insurance carrier was insuring the employer when claimant was “last exposed” to the hazards of the noxious fumes. Although recognizing that the claimant was again exposed to the harmful fumes in 1972, the supreme court affirmed the finding of the arbitrator that, for purposes of section 1(d), she was “last exposed” in 1972:
“The record shows that by October of 1972 the claimant’s upper respiratory system had already been impaired to the extent that she had suffered a permanent partial incapacity. Though her condition had improved during the 20 months she was not exposed to the chemical fumes, the claimant did not testify, and the record does not show, that she had fully recovered. Furthermore, the medical records indicate that her earlier exposure had greatly increased her sensitivity to irritating odors and fumes and made her more vulnerable to permanent damage upon reexposure. It was for this reason that she was reassigned to another plant and why she eventually had to change her employment. We consider that the legislative intent under the circumstances here would be to determine not the date on which a claimant was last exposed in a literal and narrow sense only to the hazards of an occupational disease, but to determine the date of the last exposure which caused the claimant’s incapacity.” Thermos Co., 83 Ill. 2d at 57-58, 413 N.E.2d at 1248.
In the case at hand, the arbitrator found that, as a consequence of noise exposure at both employers, claimant lost 42.5% of the hearing in his right ear and 39.4% of the hearing in his left ear. However, the arbitrator found that by the time claimant began working for Silgan, he had already suffered permanent and complete loss of 24.3% of the hearing in his right ear and permanent and complete loss of 36.4% of the hearing in his left ear; all due to noise exposure at ANCC. These factual determinations were left standing by the Commission and are not disputed on this appeal. Regardless of the unchallenged fact that, by the time of the exposure at Silgan, claimant had already suffered permanent partial disability, the majority holds that claimant is not entitled to compensation because his exposure to noise continued after his employment with ANCC ceased. This is the very inverse of the approach taken in Thermos Co. There, it was the fact that the claimant had already suffered permanent partial disability as a result of exposure in 1971 and before that compelled the court to hold, despite claimant’s continued exposure to fumes in 1972, that claimant was, for purposes of section 1(d), “last exposed” in 1971. See Thermos Co., 83 Ill. 2d at 57-58, 413 N.E.2d at 1248. The majority applies the “narrow and literal” sense of “last exposed” that the court explicitly rejected in Thermos Co.
The majority suggests that Thermos Co. is distinguishable because there was no issue there “as to last employer and such a determination was not necessary in order to impose liability on the employer.” 326 Ill. App. 3d at 604. I recognize there was only one employer in Thermos Cor, however, it was the definition of “last exposed” not “last employer” that was critical to the court’s holding. Section 1(d) provides that the insurance carrier whose policy was in effect “on the last day of the exposure rendering such employer liable in accordance with the provisions of this Act.” 820 ILCS 310/l(d) (West 1998). As the Thermos Co. court recognized (Thermos Co., 83 Ill. 2d at 57-58, 413 N.E.2d at 1248), this language directs the court to determine on what day the claimant was “last exposed to the hazard of the occupational disease” (820 ILCS 310/l(d) (West 1998)). Therefore, despite the fact that Thermos Co. dealt with only one employer, the court’s construal of “last exposed” is controlling here.
Although the majority does not make the point, I recognize that one might attempt to distinguish this case from Thermos Co. on the basis that there was no finding in Thermos Co., as there was in this case, of additional damage on reexposure. One might argue that, had the court in Thermos Co. found such additional damage to the claimant’s respiratory system, it would have considered the 1972 exposure to have been her “last exposure” just as the majority considered claimant’s exposure while employed with Silban to have been his “last exposure.” This argument fails. Although the Thermos Co. court did not explicitly note any discrete level of additional damage done to the claimant in 1972, its remarks clearly imply that such additional damage occurred. Particularly revealing are the court’s remarks in responding to the argument that, for purposes of section 1(d), claimant’s “last exposure” to the fumes occurred in October 1972 when she again was exposed because, prior to that date, she had been free of symptoms since she returned to work in 1972. In stressing that “by October of 1972 the claimant’s upper respiratory system had already been impaired to the extent that she had suffered a permanent partial incapacity,” the court evidently was contemplating, but also minimizing the importance under section 1(d) of, impairment that had not already occurred by October 1972 — that is, impairment that had occurred during or after that month. (Emphasis added.) Thermos Co., 83 Ill. 2d at 57, 413 N.E.2d at 1248. This reading is consistent with the court’s later observation that the exposure in 1971 and before made the claimant “more vulnerable to permanent damage upon reexposure” (Thermos Co., 83 Ill. 2d at 58, 413 N.E.2d at 1248). Therefore, I conclude that there are no significant factual differences between Thermos Co. and this case.
In maintaining that claimant is entitled to compensation from ANCO, I do not mean to imply that, had claimant timely sought to recover the full amount of compensation from Silgan, the latter could have avoided recovery by observing, correctly, that claimant’s hearing had been impaired before he was employed by Silgan. Construed liberally in favor of the employee, section 1(d) is not such a shield for the employer. Clearly, Thermos Co. places no such bounds on liability. Nowhere in holding that subsequent exposure does not preclude liability under section 1(d) does Thermos Co. indicate that previous exposure precludes liability. There is nothing in the opinion suggesting that the court would not also have affirmed the Commission had it found the second insurance company liable. In affirming, the court would have cited the fact that renewed exposure to hazardous fumes had caused additional permanent harm to the claimant while the employer was covered by the second insurance company.
I would hold that section 1(d), although not permitting double recovery, permits a claimant to recover the full measure of compensation either from the last in a succession of employers over the course of whose employ the claimant suffered permanent damage from exposure to the hazard of an occupational disease (the length of the last exposure and the fact or degree of harm caused having no effect on the liability of the last employer) or from an earlier employer in the succession who the employee can prove caused discrete permanent harm. The latter basis for liability exists here. Accordingly, despite the fact that claimant’s hearing was further impaired while he was employed by Silgan, he was, for purposes of section 1(d), “last exposed” to the hazards of an occupational disease while at ANCC because he there suffered discrete permanent partial disability from noise exposure.