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06/21/94 CONSOLIDATION COAL COMPANY v. INDUSTRIAL

June 21, 1994

CONSOLIDATION COAL COMPANY, APPELLEE AND CROSS-APPELLANT,
v.
THE INDUSTRIAL COMMISSION ET AL. (CHARLES FORBES, APPELLANT AND CROSS-APPELLEE.)



Appeal from the Circuit Court of Jackson County. No. 91-MR-33. Honorable E. Dan Kimmel and William G. Schwartz, Judges Presiding.

Slater, McCULLOUGH, Rakowski, Woodward, Rarick

The opinion of the court was delivered by: Slater

JUSTICE SLATER delivered the opinion of the court:

Claimant Charles R. Forbes filed an application for adjustment of claim pursuant to the Workers' Occupational Diseases Act (the Act) (Ill. Rev. Stat. 1985, ch. 48, par. 172.36 et seq.). Following a hearing on February 16, 1989, the arbitrator found that claimant had developed an occupational disease which arose out of and in the course of his employment. Claimant was awarded benefits for permanent partial disability pursuant to section 8(d)(1) of the Workers' Compensation Act (Ill. Rev. Stat. 1985, ch. 48, par. 138.8(d)(1)), as well as temporary total disability (TTD) benefits from March 31, 1986, through September 28, 1986, a total of 25 6/7 weeks. The Industrial Commission (the Commission) affirmed the arbitrator's decision. On review, the circuit court, the Honorable E. Dan Kimmel presiding, confirmed the Commission's findings that claimant suffered an occupational disease arising out of and in the course of his employment, and it confirmed the award of TTD benefits. The court reversed, however, the Commission's decision that claimant was permanently partially disabled from his usual and customary employment, finding that claimant could have returned to work in some capacity without endangering his health.

On appeal to this court, claimant contends: (1) that the circuit court erred in denying his motion to dismiss based on an improperly executed appeal bond; and (2) that the circuit court erred in reversing the Commission's finding of permanent partial disability. The employer, Consolidation Coal Company, raises the following issues in its cross-appeal: (1) whether the Commission's finding that claimant developed an occupational disease arising out of and in the course of his employment was against the manifest weight of the evidence; (2) whether the award of TTD benefits was against the manifest weight of the evidence; and (3) whether, assuming claimant was incapacitated from his usual and customary line of employment, the amount of the Commission's wage differential award was against the manifest weight of the evidence.

Claimant was born on February 10, 1951, and was 38 years old at the time of arbitration. He had worked at Consolidation Coal Company (the employer) for almost 13 years. Claimant began working at employer's Burning Star Mine Number 2 as a maintenance welder. He also did attendant work and occasionally acted as plant operator. Claimant next worked at employer's Burning Star Mine Number 5 in various positions including welder, tipple attendant, tipple operator, drill helper, dozer operator, and crane operator. His last job duty was scraper operator, which involved the use of excavating equipment in strip mining. Dust conditions in this job assignment were described by claimant as "bad," and on the claimant's last shift, March 30, 1986, operations were shut down due to dust. On that day, claimant became very ill and felt as if he were going to faint. He sat in the cab of the scraper until the end of his shift.

Claimant testified that his health problems began in December of 1985 when what he thought was a common cold became worse, and he began losing weight. His family physician, Dr. Corder, treated him for a cold and bronchitis and prescribed antibiotics. When claimant's condition did not improve, the antibiotic dosage was increased and a stronger antibiotic was used, but claimant did not respond to treatment. The day after he became ill at work, claimant went to Dr. Corder and explained what had happened. Again he was given a stronger antibiotic and was told to come back in three days if there was no improvement. Claimant's situation worsened, and his symptoms of chest pain, cough, and sputum intensified. He also continued to lose weight, dropping from approximately 215 pounds in December of 1985 to approximately 170 pounds by April of 1986. Dr. Corder ordered a chest Xray and tomogram on April 2, 1986. Claimant was then sent to the cancer ward at Barnes Hospital for additional tests, including a bronchoscopy and lung biopsy. These tests revealed that claimant was suffering from blastomycosis, and he was given an antifungal medication called Ketoconazole to shrink the grapefruit-sized tumor in his lung. After spending two weeks at Barnes Hospital, claimant returned home and continued to take the Ketoconazole for another six months.

Claimant notified the employer of his illness in April of 1986, and he received benefits for six months, through September of 1986. On September 29, 1986, claimant voluntarily terminated his employment. At the time of his resignation, claimant had a seniority rank of 63 out of 350. He had been trained in every job capacity except for electrical and dragline work. According to claimant, no matter what job classification he held, there was never a time when he was not exposed to dust at some point in the day. Claimant admitted that he had not applied for a job reclassification or transfer prior to his resignation. He explained that although he could bid for a job reclassification, the terms of his contract required that there be a job vacancy and that the bidder have the highest seniority. Claimant testified that he could not bid for a job reassignment or transfer because he was "frozen" under the contract. Under the contract, an employee had one down bid or one sideways bid for the entire term of the contract; once such a bid is made the employee can only bid up. Claimant had made no bid up because there were no vacancies.

After leaving the employer, claimant worked as a car salesman for six to eight weeks. He also worked at a correctional center in Hillsboro, Illinois, and at Lincolnland Community College as a welding shop instructor. At the time of the arbitration hearing, claimant was employed at Johnson County Community College in Overland Park, Kansas, as a metal fab instructor. He had held this position for one year.

Claimant testified that his chest still bothers him as he has pain in the upper left lobe of his lung. He also complained of a greater susceptibility to chest colds and less endurance. According to claimant, the last cold he had lasted two months.

Kent Eden testified by way of evidence deposition on behalf of the employer. He had been the employer's supervisor of industrial and employee relations for the past 10 years. In commenting on the dust conditions in positions held by claimant, Eden testified that claimant's prior position of plant operator was in a "fairly clean environment." According to Eden, claimant's prior positions as welder or coal oiler would not expose him to dirt dust. Eden also testified that claimant's past position of mobile crane operator does not create dust, although the crane does travel over different parts of the mine. Eden further testified that the employer had other positions which did not involve exposure to dirt dust, such as utility man, bath house attendant, plant welder, and silo attendant. According to Eden, claimant had never requested a transfer to a less dusty or dust-free environment.

Eden also testified that, by contract, the company is obligated to make an earnest effort to move an employee to a less dusty location if he requests it. He later acknowledged on cross-examination, however, that this obligation arises from the Federal Coal MineHealth and Safety Act and only applies to coal miners with pneumoconiosis. Eden did not know whether or not the employer would have allowed claimant to transfer for medical reasons. Eden also stated that under the contract an employee may bid into another available position, and during 1986 there were 86 opportunities to bid into different jobs. He did not know, however, how many of the 86 openings involved dust-free work.

When questioned concerning the number of hours claimant worked, Eden testified that he worked overtime, including Saturdays when scheduled. Claimant typically worked six days per week during the summer and fewer days in the winter, so that "on a yearly basis, he would probably work more than 40 hours a week."

The medical evidence presented at the arbitration hearing consisted of the deposition testimony and medical report of Dr. Peter Tuteur and the report of Dr. Robert Bruce. Dr. Tuteur is board certified in both internal and pulmonary medicine. His practice consists primarily of consultation in pulmonary diseases. Dr. Tuteur examined claimant on May 9, 1986, at his request, and he concurred with the diagnosis of a left upper lobe infectious process due to blastomycosis. He explained that blastomycosis is a granulomatous infectious process within the lung caused by fungal organisms called blastomyces, which are regularly found in the soil. In claimant's case, "because of a combination of environmental and host factors, his body did not control the infection with blastomyces and he developed fever, chills, abnormal x-ray and an infection which required ...


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