Sangamon Sun

The denial of a "popcorn-flavoring lung disease" claim brought by a former Archer Daniels Midland Co. (ADM) employee has been affirmed by the Illinois Fourth District Appellate Court’s Workers’ Compensation Commission Division.

In Michael K. Durbin v. the Illinois Workers’ Compensation Commission (IWCC) et al., issued July 17, the majority ruling said a claim such as this one isn’t actually a workers' comp claim. This is an occupational-disease claim in which the worker must demonstrate exposure to an arguably harmful chemical or other substance due to work.

Durbin initially filed an application for a claim adjustment in October 2004, seeking benefits from his employer, ADM, the Chicago-based global food-processing and commodities-trading corporation.

Durbin said he suffered injuries in July 2003 to his lungs, specifically chronic obstructive pulmonary disease (COPD), due to exposure to irritants. Durbin retired in 2003 at age 48, having worked at an ADM factory for 30 years.

Specifically, Durbin claimed to have a disease that’s been called “popcorn worker's lung” because it was first seen in former workers of a microwave popcorn factory in Missouri. The National Institute for Occupational Safety and Health (NIOSH) refers to the disease more generally as “flavorings-related lung disease.” People who work with flavorings that include diacetyl are at risk for the disease, including those who work in popcorn factories, restaurants, other snack-food factories, bakeries, candy factories, margarine and cooking-spread factories, and coffee-processing facilities, NIOSH said.

Following a 2013 hearing on Durbin’s claim, an arbitrator found that Durbin failed to prove an occupational disease caused by workplace exposure and denied him benefits, a decision reviewed and upheld in 2014 by the IWCC. On judicial review, the Circuit Court of Macon County then also upheld the IWCC’s decision in 2015.

But Durbin persisted, and in this subsequent appeal to the appellate court’s workers’ comp division, he argued that the IWCC erred in its decision because the commission barred his physician’s causation opinion, and he said the IWCC’s finding that he failed to prove his case was wrong.

While the Fourth District Appellate Court’s workers’ comp division agreed that Durbin’s expert medical opinion from his doctor was withheld from the record, the court also said in its decision that the doctor’s opinion was “not based on a scientific methodology or principle that has gained general acceptance in the relevant scientific community.”

Therefore, the court ruled that Durbin’s doctor’s opinion was inadmissible under both Frye v. United States and Illinois Rule 702, both of which aim to exclude new or novel scientific evidence that undeservedly creates a perception of certainty that isn’t warranted.

“In short, (the doctor’s) causation opinion was based on a speculative theory and lacked support in the relevant scientific literature,” the new decision said.

The appellate court’s division also agreed with the IWCC’s ruling that found Durbin failed to establish the compensatory weight of obstructive lung disease because he did not adequately or scientifically link his condition to the workplace exposure to a butter flavoring ingredient that contained the chemical diacetyl.

“Claimant bore the burden of proving he suffered an occupational disease," the ruling said. "The only evidence presented by claimant, however, to support a finding of causation between his exposure to diacetyl and his COPD diagnosis was the medical opinion of his treating physician ... an opinion we find was inadmissible under Frye and Rule 702."

Durbin worked as a pumper-loader operator at an ADM factory and alleged he was exposed to diacetyl for some 20 years of his employment. When used in artificial butter flavoring, the chemical may be hazardous in certain circumstances, NIOSH said.

“Although claimant stated that it ‘took his breath away’ when he opened the buckets of butter flavoring, he acknowledged never having spoken with the employer about the smell,” the ruling said.

And though Durbin said he experienced burning nasal passages due to the buttery odor, he never reported this symptom to his treating physicians.

Additionally, Durbin admitted to being a smoker and that both his parents were smokers. His mother, in fact, had been diagnosed with COPD and had died at the age of 53; his father died from coronary disease at the age of 56. Both of his wives also smoked.

Durbin also testified during the initial arbitration that he had a history of asthma, which he said had worsened after his 2003 retirement from ADM and prohibited him from performing various activities. A doctor in 2011 diagnosed Durbin with severe early-onset COPD.

The IWCC ruled that Durbin was not a credible witness because his previous testimony regarding his exposure to diacetyl weren’t consistent with the evidence, another finding the appellate court’s workers’ comp division agreed with in its decision.

Read the decision in its entirety online at: www.illinoiscourts.gov/Opinions/WorkersComp/2016/4150088WC.pdf.