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03/28/96 JOHN FITTS v. INDUSTRIAL COMMISSION ET AL.

March 28, 1996

JOHN FITTS, APPELLANT,
v.
THE INDUSTRIAL COMMISSION ET AL. (SAHARA COAL COMPANY, INC., APPELLEE).



The Honorable Justice Heiple delivered the opinion of the court:

The opinion of the court was delivered by: Heiple

The Honorable Justice HEIPLE delivered the opinion of the court:

John Fitts (hereinafter claimant) sought workers' compensation benefits, alleging that his respiratory ailments were caused by exposure to coal dust during his employment with respondent Sahara Coal Company (hereinafter employer). The Industrial Commission arbitrator determined that claimant did not suffer from coal worker's pneumoconiosis (black lung), but instead found that claimant's exposure to coal dust temporarily aggravated his smoking-induced emphysema and asthma. As compensation for the temporary aggravation, the arbitrator granted claimant a permanent partial disability award of 22 1/2%. The Industrial Commission adopted and affirmed the decision of the arbitrator and that decision was confirmed on administrative review by the circuit court of Saline County. The Industrial Commission Division of the Appellate Court affirmed the circuit court's decision, with two justices dissenting. No. 5-94-0387WC (unpublished order under Supreme Court Rule 23). We granted claimant's petition for leave to appeal (155 Ill. 2d R. 315). We now reverse and remand.

FACTS

Claimant worked for nearly 20 years as an underground coal miner with employer. During this period, he was exposed to coal dust on a daily basis. From 1946 until 1980, claimant also smoked 1 1/2 packs of cigarettes per day. Claimant first noticed breathing problems in 1978 and his breathing difficulties steadily increased until 1988, when his shortness of breath forced him to stop working at the coal mine.

Before this court, claimant argues that: (1) the arbitrator improperly apportioned for the amount of aggravation; (2) the arbitrator erred when he ruled that claimant was not industrially disabled; and (3) the appellate court improperly acted as an advocate for the employer. As a result of our decision regarding the first issue, we will not need to address issues two or three.

ANALYSIS

Before a reviewing court may overturn a decision of the Industrial Commission, it must find that the award was contrary to law ( Butler Manufacturing Co. v. Industrial Comm'n, 85 Ill. 2d 213, 216, 52 Ill. Dec. 623, 422 N.E.2d 625 (1981)) or that the Commission's factual determinations were against the manifest weight of the evidence ( Paganelis v. Industrial Comm'n, 132 Ill. 2d 468, 486, 139 Ill. Dec. 477, 548 N.E.2d 1033 (1989)).

Claimant argues that he is entitled to a total disability award that was improperly reduced when the Commission apportioned between the disability caused by his exposure to coal mine dust and the disability caused by his years of cigarette smoking.

Waiver

Employer's initial response to claimant's apportionment argument is that claimant waived any claim of apportionment by failing to assert it before the Industrial Commission. Claimant counters that employer's claim of waiver is itself waived because employer responded to his apportionment argument before the circuit court without raising the waiver issue.

In reviewing a decision of the Industrial Commission, a court may only consider the record and arguments that were before the Commission. Gunthrop-Warren Printing Co. v. Industrial Comm'n, 74 Ill. 2d 252, 255, 24 Ill. Dec. 160, 384 N.E.2d 1318 (1979); Freeman United Coal Mining Co. v. Industrial Comm'n, 81 Ill. 2d 335, 345, 43 Ill. Dec. 48, 410 N.E.2d 48 (1980). However, a claim of waiver may itself be waived. McHugh-Brighton v. Industrial Comm'n, 42 Ill. 2d 52, 58, 245 N.E.2d 480 (1969) (a contention that was not raised at any previous stage of the proceedings will not be considered the first time upon review); see People v. Banks, 243 Ill. App. 3d 525, 530, 183 Ill. Dec. 622, 611 N.E.2d 1270 (1993) (when a criminal defendant makes an untimely Batson claim and the State addresses the merits, the State may not assert on appeal that the defendant's Batson claim was waived).

Although claimant failed to assert his apportionment argument before the industrial Commission, on administrative review before the circuit court he argued: "The Commission's decision is premised upon apportioning how much of [claimant's] pulmonary disease was aggravated by his coal dust exposure. *** If coal dust played a causative role in the development of the disease, then apportioning based on only aggravation is error." Employer addressed the merits of the ...


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