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09/02/94 CARL EDMUND SHELTON v. INDUSTRIAL

September 2, 1994

CARL EDMUND SHELTON, APPELLANT AND CROSS-APPELLEE,
v.
THE INDUSTRIAL COMMISSION, ET AL. (INLAND STEEL COAL COMPANY, APPELLEE AND CROSS-APPELLANT).



Appeal from the Circuit Court of Franklin County. No. 92-MR-37. Honorable Terry H. Gamber, Judge Presiding.

Woodward, Rakowski, Slater, Rarick, McCULLOUGH

The opinion of the court was delivered by: Woodward

JUSTICE WOODWARD delivered the opinion of the court:

Claimant, Carl Edmund Shelton, appeals from an order of the circuit court of Franklin County affirming a decision of the Illinois Industrial Commission (Commission) awarding him permanent loss of use of the man as a whole to the extent of 17.5%. The employer, Inland Steel Coal Company, cross-appeals seeking dismissal of the claim for benefits on constitutional and statutory grounds.

At the time of the arbitration hearing on October 20, 1991, claimant was 75 years of age. He attended school up to the eleventh grade. Prior to working in the coal mining industry, claimant worked on a farm, was in the Navy, and worked as an auto mechanic. He never worked at a desk job. He worked in the coal mining industry for 29 years as a plant mechanic, making repairs on equipment which required him to do welding. He also had to walk up and down five flights of stairs carrying his tools, which weighed between 10 and 25 pounds. Originally he worked at Inland 1, but the dust conditions were so bad there that in March 1979 he was informed he had black lung severe enough to entitle him to a change to a new location. He transferred to Inland 2, where he remained until he retired on October 31, 1981. According to claimant, he inhaled coal dust every day he worked at the mines.

Claimant further testified that he smoked cigarettes, approximately one pack per day for approximately 40 years. He quit smoking in 1989. According to claimant, for about three to four years prior to his retirement, he experienced shortness of breath when he tried to exert himself, i.e., climbing stairs or carrying loads. His breathing difficulties continued to get worse. He retired in 1981 because he could not keep up with his work. Since his retirement, claimant has suffered two strokes and has been diagnosed with Parkinson's Disease. Since 1981, his breathing difficulties have gradually gotten worse. He can walk only 25 to 30 yards before becoming short of breath.

On cross-examination, claimant testified that he did not take a medical retirement for disability purposes; he made the decision to retire in 1981. His smoking history was closer to 50 years in length. He acknowledged that he had been told he had emphysema but denied that any of his doctors had told him to quit smoking. His ability to move around was also affected by his strokes. He also suffered from high blood pressure.

Admitted into evidence were the evidence depositions of the various medical experts in this case. Their testimony is summarized below.

Dr. William Charles Houser, board certified in internal medicine and pulmonary diseases, testified on behalf of the employer. Dr. Houser obtained a history from and conducted a complete pulmonary evaluation of claimant which included a chest X ray on June 29, 1988. He concluded that claimant was suffering from coal workers' pneumoconiosis (CWP) related to his exposure to coal dust and his work as a welder in his 29 years as a coal miner. Dr. Houser also opined that claimant was suffering from chronic bronchitis, as well as chronic obstructive pulmonary disease due to his coal mining activities and his history of cigarette smoking.

On cross-examination, Dr. Houser testified that claimant's exposure to asbestos could also have adversely affect his lungs. It is impossible to distinguish in claimant which of the factors caused his present condition of ill-being because of the varying susceptibility of individuals.

Dr. Parviz B. Sanjabi, an internist and pulmonologist, testified for the claimant. He took a medical history from and examined claimant on November 4, 1985. After reviewing claimant's chest X ray and the pulmonary function studies, Dr. Sanjabi concluded that claimant suffered from bullous emphysema and CWP, which he suffered from at the time he retired in 1981. According to Dr. Sanjabi, claimant could not have continued working in the mines without endangering his health or life.

On cross-examination, Dr. Sanjabi testified that claimant suffered from chronic bronchitis, as well as bullous emphysema, both of which were obstructive conditions. On redirect examination, the doctor agreed that CWP was a contributing factor to the obstructive condition in his lungs.

Dr. Elliot 0. Partridge, a family practitioner, testified for the claimant. On July 8, 1980, he examined claimant on behalf of the United States Department of Labor in connection with a Federal black lung action claimant had filed. Based on claimant's medical history and his examination, Dr. Partridge diagnosed claimant as suffering from chronic obstructive pulmonary disease (COPD), resulting from his mining employment and his 40-year history of cigarette smoking. After reviewing the recent medical reports and test results, Dr. Partridge opined that claimant was suffering from CWP. He further opined that claimant was totally disabled from being gainfully employed as a coal miner or other comparable work because "pulmonarywise," he was unable to perform adequately. In claimant's case, the CWP resulted from lung damage caused by his welding activities, pneumoconiosis, and his cigarette smoking, as well as the aging process. It was impossible to determine to what degree each factor caused the damage to claimant's lungs. Cigarette smoking does not cause CWP.

On cross-examination, Dr. Partridge testified that claimant should not be exposed to either coal dust or cigarette smoke. Pneumoconiosis was a component part of claimant's condition of COPD in 1980.

Dr. Stephen Kelly, board certified in internal medicine and pulmonary medicine, testified on behalf of the employer. Dr. Kelly testified that obstructive impairments in the lungs typically included COPD, which comprises emphysema, bronchitis, and asthma. Coal dust exposure, if it causes a pneumoconiosis, would produce a restrictive ventilatory pattern. Coal dust can also contribute to a much lesser degree to an obstructive type of pattern. Cigarette smoking produces an obstructive ventilatory pattern; generally, it does not, in and of itself, produce a restrictive type of pattern.

Based upon claimant's medical history and test results and deposition testimony from claimant and Dr. William Getty, Dr. Kelly opined that claimant's pulmonary disability was caused predominately by cigarette smoking, with coal dust a minor contributing cause. However, claimant would be totally disabled solely on the basis of his smoking-induced COPD.

On cross-examination, Dr. Kelly testified that he would recommend to a patient with CWP that the patient cease exposure to coal dust. In his opinion, claimant was totally disabled from gainful employment and that his pulmonary impairment was a causative factor of his disability. On recross-examination, Dr. Kelly testified ...


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