Document yKbJ1w60eV2YaopMrKLkY1M4

BAtTM IlTFFOMl' At t o r n e y s a t La w Ric h a r d W. Ba u m Sa mu e l J. Ru f f o l o December 30th, 1982 RECEIVED JAN 10 1933 Corp., RiskMgmt. Su it e 2225 On e No r t h La Sa l l e St r e e t Ch ic a g o , Il l in o is 60602 (312) 726 - 1995 Mr, Steve Borgstrom Raymond Sheakley & Associates 18 W 100 22nd Street Suite #124 Oak Brook Terrace, Illinois 60181 REDACTED RE: Sherwin Williams Co. I. C . # : 82 0D 000463 D/A: 3-23-81 Our File #:8211-00003IL Dear Steve: I acknowledge receipt of this file and note that the claimant, ' is represented by Attorney Harriette Lakernick located at One North LaSalle Street, Suite #2065, Chicago, Illinois at phone 726-5696. I immediately note that the Application for Adjustment of Claim has a date of accident or last exposure of 4-23-82 but it is clear from the contents of our file that the true exposure was March 23, 1981. Also, since the petitioner has passed away, according to the death certificate on April 23, 1982, I would expect an amended application, naming Louise as the widow and next of friend of Joe T. Smith. There are apparently no minor dependents involved in this case. The claimant's average wage was $404.18 and his P.D. and T.T.D. rate $269.18. As you know from our phone conversations prior to my receipt of this file I have not given this claim serious consideration. After reading the file contents, however, I would give it more serious consideration because I now see that there was a specific incident which occurred on March 23, 1981 which led to treatment and hospitalization when there was a sulfur dioxide leak at the factory which lead to treatment and hospitalization of Mr. addition, he apparently had long term exposure to sulfur dioxide since he worked for Sherwin Williams for 30 years. N40062 0007-SWP-005805476 Mr. Steve Bergstrom December 30th, 1982 Page 2. JAN 10 1933 Corp., Risk Mgmt. RE: ~ ' -v- Sherwin Williams Co, Re d a c t e d Additionally, as you know, until 1975, the Occupational Disease Act required that the exposure to a toxic chemical such as sulfur dioxide chemical was required to be the cause of the resultant disability or death of the claimant. Since 1975, however, it is clear that an exposure to a toxic chemical such as this need only be shown to aggravate, accelerate or exacerabate a pre-existant condition in order to be held compensable. This could in fact be the situation in this case. It is clear from what records we have on this case to date and also from the records you will obtain that Mr. jdid not enjoy good health and in fact, as you have listed his conditions, he had heart palpitations, ventricular tachycardia, pyuria and hematuria, L-131 elevation of hyper thyroid state, L-131 elevation of the thyroid gland, decreased hemoglobin, decreased hematocrit, guaiac positive stools, pneumonitis, possible chemical pneumonitis, upper respiratory infection, acute bronchitis, and graves disease. Our principal focus andprobably the claimant's attorney will of course be the lung, respiratory conditions including pneumonitis and bronchitis and the severe chronic obstructive lung disease from which he suffered. It is clear that this condition was diagnoised on April 16th, 1981 by Dr. C. R, Weiss at Northwestern University as severe chronic obstructive pulmonary disease with asthmatic com ponent and it is further clear that Dr. Weiss indicated that Mr, Smith should not work in or around any irritants as these could exacerbate his condition. On March 23, 1981 M inhaled SO2 fumes, became dizzy, nauseaous and short of breath and was taken to Hennan Clinic where x-rays were negative. This incident occurred while filling a tank with sulfuric acid and when he went to check a valve, discovered an SO2 leak. He was also admitted to St. Francis Hospital for the inhaled sulfur dioxide to be washed. He then apparently took a medical leave of absence effective April 13, 1981 and was entitled to his pension on December 31, 1981 for being with the company for 30 years. He then died April 23, 1982 cnr)7-SWP-05805477 Mr. Steve Borgstrom December 30, 1982 Page 3. ED JAN 10 19: RE: Sherwin Williams REDACTED and the death certificate indicates the cause of death was arterio -sclerotic cardiovascular disease. The doctor rendering that opinion was Dr. Eupil Choi at Jackson Park Hospital in Chicago. I believe the basis of our defense would form two non-job related causes; 1. The fact that Mr smoked for 40 pack years; 2. The fact that Mr. suffered from graves disease which from my limited research is a hyper thyroid condition. It is clear from the medical literature I have consulted that graves disease could have caused some of the problems from which Mr suffered, namely the heart palpitations to the ventri cular tachycardia and the pyruria and hematuria. Therefore, if we could establish that his death resulted from graves disease and smoking, we would knock out the possibility of a $250,000.00 death benefit to the widow. However, this still leaves the lung problem in some respects and could lead to an award for a percentage man as a whole under section 8(e) 19. Therefore, at present I would recommend a* reserve of 1/10 of the death benefit or $25,000.00. By way of investigation I would make the following additional recommendations. 1. There is indication in your investigation that there were two types of respirators used, one for emergencies and one on a regular basis. Please obtain all the information you can about the respira tor, commonly worn by Mr. Smith and also take state ments from co-workers to indicate if he regularly wore the respirator. 2. Please obtain information about the emergency respirator used when there was a found leak. 3. Were annual x-rays taken of 1 annual check-ups given as recommended by NIOSH? 0007-SWP-005805478 CONFIDENTIAL Mr. Steve Borgstrom December 30, 1982 Page 4. RE: -v- Sherwin Williams REDACTED 4. Were the levels of exposure recorded when there was a leak or emergency and if so, how many leaks or emergencies occurred during the 30 years that Mr. Smith worked with SO2. 5. Was there ventilation in the SO2 area and if so what type of ventilation was provided. 6. Please send me medical authorization forms as 1 believe that will be the only way you will obtain VA records as they will probably not respond to your subpoena since they never do to mine. If you need medical authoriztion forms, please advise me and I will provide Attorney Harriet Lakernick with authorization forms for our use. 7. Were there any other emergency leaks which resulted in treatment or hospitalization for Mr. in years prior to the March 23, 1981 incident. 8. Once we have gathered all the necessary medical records, we will work together to formulate a letter to Dr. Van Ordstrand to determine in his opinion, whether or not the death resulted from graves disease or in the alternative, from the chemical exposure to the S02* In the alternative, we will ask Dr. Van Ordstrand whether or not the chronic obstructive pulminary disease could have been caused or aggravated by exposure to the sulfur dioxide fumes and if so, would this have lead to a permanent partial disability man-as-a-whole for ?hile he was living. Section 8(e)19 is a little used but dangerous provision in the Illinois Workmen's Compensation Act which could otherwise be called a survivial statute. This means if an individual suffers a permanent partial disability prior to his death and that permanent partial disability can be proven, then the widow is entitled to collect under that section for a percentage manas-a-whole or a specific loss. I am certain we will be doing considerably more work on this file but I believe my opening letter covers the major details. 0007-SWP-005805479 CONFIDENTIAL Mr. Steve Borgstrom December 30th, 1982 Page 5. REDACTED RE: h -v- Sherwin Williams Co. If you have any questions about my opening memo, please do not hesitate to call or write. Very truly yours, BAUM & RUFFOLO RWB/ppm Richard W. Baum cCU-'-v'i- P.S Steve, I am quite certain A ttorney Lakernick will use Dr. Edwin Levine, a very pr ominent plaintiff s internist and lung specialist who fr equently causally relates these conditions to exposure to t oxic chemicals at work. C007-SWP-005805480 CONFIDENTIAL