December 11, 2001

NO. 4-00-0876WC

IN THE APPELLATE COURT OF ILLINOIS

FOURTH DISTRICT

Industrial Commission Division

On March 25, 1997, claimant, Terry Hamilton, filed anamended application for adjustment of claim in case No.96-WC-03534, and an application for adjustment of claim, case No.97-WC-15903, each pursuant to the Workers' Occupational DiseasesAct (Act) (820 ILCS 310/1 through 27 (West 1996)). Claimantalleged that he had contracted an occupational disease, hearingloss, arising out of and in the course of his employment withemployer, Silgan Container Corporation, in case No. 96-WC-03534;and arising out of and in the course of his employment withemployer, American National Can Company (ANCC), in case No.97-WC-15903. The arbitrator found that claimant sustainedaccidental injuries, permanent partial hearing loss, which aroseout of and in the course of employment with each employer andallocated the hearing loss between the two employers. On October7, 1998, employer ANCC filed a petition for review of the decision of the arbitrator. The Industrial Commission (Commission)reversed the arbitrator's decision, with one commissioner dissenting. The Commission found that employer ANCC was not claimant's last employer as required under section 1(d) of the Act(820 ILCS 310/1(d) (West 1996)) and "[claimant] is not entitledto benefits." On administrative review, the circuit court ofVermilion County confirmed the Commission's decision. The issuebefore this court is whether the Commission's finding thatemployer ANCC was not claimant's last employer as required undersection 1(d) of the Act and, therefore, claimant is not entitledto benefits, was contrary to law. We affirm.

Claimant began employment with ANCC, a manufacturer oftin cans, in 1970. On August 1, 1995, Silgan Container Corporation bought ANCC. Claimant continued in his employment, now withSilgan Container Corporation. On January 23, 1996, claimantfiled an application for adjustment of claim and identifiedAmerican Can Company/Silgan Container Corporation as employer,case No. 96-WC-03534. On March 25, 1997, claimant filed anamended application for adjustment of claim in No. 96-WC-03534naming Silgan Container Corporation as employer. On March 25,1997, claimant also filed an application for adjustment of claimand identified ANCC as employer, case No. 97-WC-15903. Claimantlater motioned the Commission to consolidate the cases, statingthat "these claims involve hearing loss sustained during periodswhen two different employers owned the plant where [claimant]worked." The arbitrator entered an order on August 13, 1997,allowing the motion.

After a hearing on May 12, 1998, the arbitrator entered a decision in each case finding that claimant "was exposed toexcessive noise levels which resulted in hearing loss" with thedate of last exposure being July 31, 1995, as to employer ANCC,and January 8, 1996, as to employer Silgan Container Corporation. The arbitrator apportioned compensation accordingly, ANCC to payto claimant the sum of $410.43 per week for a period of 60.7weeks and Silgan Container Corporation to pay to claimant the sumof $410.43 per week for a period of 21.2 weeks. On October 7,1998, employer ANCC filed a petition for review of the decisionof the arbitrator. Neither Silgan Container Corporation norclaimant sought review of the decision of the arbitrator. TheCommission found that employer ANCC was not claimant's lastemployer as required under section 1(d) of the Act (820 ILCS310/1(d) (West 1996)) and "[claimant] is not entitled to benefits."

The issue before this court is whether the decision ofthe Commission was contrary to law. Before a reviewing court mayoverturn a decision of the Commission, it must find that theaward was contrary to law or that the Commission's factualdeterminations were against the manifest weight of the evidence. Freeman United Coal Mining Co. v. Industrial Comm'n, 188 Ill. 2d243, 245, 720 N.E.2d 1063, 1065 (1999).

Claimant argues that section 1(d) of the Act does notforeclose an award for hearing loss against ANCC, "a prioremployer." Section 1(d) of the Act provides:

"The employer liable for the compensation in this Act provided shall be the employer in whose employment the employee waslast exposed to the hazard of the occupational disease claimed upon regardless of thelength of time of such last exposure ***. ***

The insurance carrier liable shall bethe carrier whose policy was in effect covering the employer liable on the last day ofthe exposure rendering such employer liablein accordance with the provisions of thisAct." 820 ILCS 310/1(d) (West 1996).

In the present case, Silgan Container Corporation was"the employer in whose employment the employee was last exposedto the hazard of the occupational disease claimed" within themeaning of the Act. 820 ILCS 310/1(d) (West 1996).

In Thermos Co. v. Industrial Comm'n, 83 Ill. 2d 54, 413N.E.2d 1246 (1980), cited by claimant, it was necessary todetermine "the date of the last exposure which caused the claimant's incapacity." Thermos Co., 83 Ill. 2d at 58, 413 N.E.2d at1248. There was no issue as to last employer and such a determination was not necessary in order to impose liability on theemployer. It pertained to the wholly separate issues of (1) whencompensation should commence, and (2) which of the employer'smultiple insurance carriers were required to pay that compensation. Those matters are not in dispute here.

In Fleming v. Industrial Comm'n, 95 Ill. 2d 329, 333,447 N.E.2d 819, 821 (1983), also cited by claimant, the supremecourt held that an award to a claimant for his hearing loss wasnot precluded merely because claimant continued to be exposed tothe disabling cause. Here, the award to claimant has beenprecluded because employer ANCC is not the employer in whoseemployment the claimant was last exposed to the hazard of theoccupational disease claimed. See also John Deere Plow & PlanterWorks of Deere & Co. v. Industrial Comm'n, 168 Ill. App. 3d 1096,523 N.E.2d 386 (1988) (claimant filed an application for adjustment of claim under the Act alleging that his hearing loss aroseout of and during course of his employment as a welder and namedrespondent as employer; claimant had performed welding forengineering and construction firms but did not name them as anemployer in an application for adjustment of claim under theAct); Dresser Industries v. Industrial Comm'n, 237 Ill. App. 3d150, 604 N.E.2d 365 (1992) (claimant testified that he had beenemployed as a welder by the respondent since November 1, 1982,when the respondent took over the plant from InternationalHarvester; prior to the takeover of the plant by respondent,claimant had worked for International Harvester since 1970;claimant's only application for adjustment of claim under the Actalleged that his hearing loss arose out of and during course ofhis employment with respondent, Dresser Industries).

Moreover, the Illinois Administrative Code (Code) (50Ill. Adm. Code