dissenting:
The circuit court in reviewing an Industrial Commission decision must consider the case solely on the record made before the Industrial Commission. Items outside the record are not properly before the court. (Chambers v. Industrial Com. (1985), 139 Ill. App. 3d 550, 552, 487 N.E.2d 1142, 1144). The letter referred to by the majority which alleged an ex parte communication between attorney Stevenson and commissioner Miller was not admitted into evidence before the Industrial Commission and the substance of the letter should not be reviewed at this time. It is not a part of the record in this case.
The petitioners argue a constitutional right to present the issue of the ex parte communication. The issue was not raised in the trial court. The petitioners did not seek to admit the letter into evidence as an exhibit but rather attached the letter to its circuit court brief. Briefs are not evidence, and this court should not consider the substance of the letter.
A review of the proceedings before the Industrial Commission discloses no impropriety on the part of Commissioner Miller which is demonstrative of actual prejudice against the petitioners. The letter does not affect the outcome of this case. It does indicate that the Commission’s action did not follow any ex parte understanding of attorney Stevenson. The letter was ill advised. However, any record with respect to the content of the ex parte communication was not presented to the trial court. If the employees’ due process rights were violated, they were obliged to present the matter to the trial court. The letter shows no favored treatment given to the employer and no prejudice to the rights of the employees. This court should not consider an issue not presented to the trial court.
I agree with the majority that the Industrial Commission did not err in admitting the paint bucket label into evidence and that the Industrial Commission did err in taking “judicial notice” of the chemical composition of the paint. However, with respect to taking judicial notice, this was at the most harmless error on the part of the Industrial Commission. The Industrial Commission’s decision and reduction of the petitioner’s temporary total disability awards were not contrary to the manifest weight of the evidence. Dr. Brooks, the only expert testifying that the petitioners were totally disabled after January 4, 1982, based his opinion upon a newly discovered occupational disease (RADS) which had not yet received general acceptance in the community of pulmonary specialists. Because of the speculative nature of RADS and Dr. Brooks’ testimony that the petitioners had been treated by a Dr. Samet, a claim which Dr. Samet denied, we certainly cannot say that the Industrial Commission’s decision to accept the medical evidence admitted by the respondents was incorrect. Dr. Paul and Dr. Cugell testified on behalf of the respondent and examined the petitioners on behalf of respondent. Dr. Paul testified that an asthmatic would usually recover from exposure such as Bitner encountered within a couple of weeks and believed that Bitner was currently suffering from a chronic condition which was not caused by the paint spray. Dr. Paul offered a similar opinion as to Cotter’s condition. Dr. Cugell testified that his physical examination of Bitner on June 17, 1983, showed no abnormalities. After reviewing Bitner's medical history and X rays, Dr. Cugell formed the opinion that Bitner was suffering from chronic obstructive pulmonary disease and that this condition was developing prior to the exposure and is the type of condition which takes many years to manifest itself. With respect to Gotter, Dr. Cugell believed he was suffering from a chronic obstructive pulmonary disease of the asthmatic variety and that Cotter’s condition was less severe than Bitner’s. Additionally, neither Dr. Cugell nor Dr. Paul recognized Reactive Airways Disease Syndrome (RADS) as a distinct occupational disease. Bitner testified that he was treated by a Dr. Killgore and a Dr. John Nathan Savaans at the University of New Mexico Hospital. Dr. Brooks testified that he had referred the petitioners to Dr. Jonathon Samet at the University of New Mexico Hospital. A letter dated June 14, 1983, from Dr. Samet of the University Hospital states that neither he nor the hospital has any record of examining either petitioner.
From the record in this case, it appears that the Industrial Commission’s decision with respect to these petitioners was certainly not against the manifest weight of the evidence.
The circuit court should be affirmed.