Barnes v. Barbosa

PRESIDING JUSTICE SULLIVAN,

dissenting:

I disagree with the action of the majority in reversing the judgment appealed from. The director of the Department of Human Rights initially made a determination that there was no substantial evidence of a violation of plaintiff’s human rights. Its ruling was then affirmed by the Illinois Human Rights Commission and on administrative review the circuit court affirmed the decision of the Commission. The majority has found that the Commission’s ruling and the decision of the circuit court were against the manifest weight of the evidence.

It appears to me, however, that the majority’s finding has no basis in the record other than the unsupported statement of plaintiff that he once had carbon monoxide poisoning and as a result was not able to work around buses. Weighed against this statement were the opinions of Doctors Goetz, Shenker and Arieff, each of whom reported that plaintiff was normal and fit for work. The majority in reversing, however, disregards these opinions and relies primarily on the report of Dr. Brueckner which gives little, if any, support to plaintiff. Dr. Brueckner’s report is in a single paragraph, the entirety of which is as follows:

“My psychiatric impression is that Mr. Barnes is suffering from a carbon monoxide phobic reaction which prevents him from working on or around buses.”

The majority fails to realize, however, that Dr. Brueckner’s “impression” could only have been based on a statement given him by plaintiff as Dr. Brueckner conducted no tests or examinations and made no findings of any kind to support his “impression” that plaintiff had a carbon monoxide phobic reaction which prevented him from working on or around buses. Thus, from the record the only possible basis for his “impression” was plaintiff’s statement that he once had carbon monoxide poisoning and as a result he feared working around buses.

It is noted that Dr. Arieff, a neurologist and a psychiatrist, had available at the time of his evaluation of plaintiff the reports of Doctors Goetz, Shenker and Brueckner, and he also obtained a lengthy case history from plaintiff. It is clear from the report of Dr. Arieff that he conducted a thorough examination of plaintiff and then submitted a detailed, three-page report,1 stating in his summary:

“I find no objective evidence of any organic disease of the central or peripheral nervous system, or any evidence of outward anxiety, except by history. As far as I am concerned he could work but I do not feel that he wants to go back to bus driving. He states that in driving a bus, it is policy to keep the buses running in the garage, which would cause problems. I think this is a continuation of his previous problem of anxiety and now he has a reason, blaming it on carbon monoxide poisoning. If he wanted. to, he certainly could go back to work.”

The previous problem of anxiety referred to by Dr. Arieff appears in plaintiff’s case history in which he told Dr. Arieff that he had been injured in Vietnam and subsequently had been an outpatient at the Veterans Administration Hospital from which he was discharged with a 10% disability for anxiety state and a recovered skull fracture. It also appears that plaintiff separately told Doctors Shenker and Arieff that he had been a patient in Mt. Sinai Hospital where he was told that he had carbon monoxide poisoning. He did not say who told him this and there is nothing in the record here which gives any indication that he once had carbon monoxide poisoning. In fact, Dr. Shenker stated that no such diagnosis was made at Mt. Sinai Hospital. Thus, considering the opinions of Doctors Goetz, Shenker and Arieff and the fact that plaintiff presented (a) only his unsupported statement that he had carbon monoxide poisoning and (b) the one paragraph statement of Dr. Brueckner, whose “impression” therein could only have been based on plaintiff’s statement to him, it is clear to me that the decision appealed from was not against the manifest weight of the evidence. I would affirm the judgment.

The majority also stated that Dr. Arieff “extensively” reported the results of his physical examination.