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08/15/96 FREEMAN UNITED COAL MINING COMPANY v.

August 15, 1996

FREEMAN UNITED COAL MINING COMPANY, APPELLANT,
v.
THE INDUSTRIAL COMMISSION ET AL. (LOUIS SELMO, APPELLEE).



Appeal from the Circuit Courts of Williamson County and Franklin County. Williamson Co. No. 92-MR-98, Franklin Co. No. 94-MR-35. Honorable Paul S. Murphy and Alice Jordan, Judges, presiding.

The Honorable Justice Rakowski delivered the opinion of the court: McCULLOUGH, P.j., and Colwell and Holdridge, JJ., concur. Rarick, J., dissenting:

The opinion of the court was delivered by: Rakowski

JUSTICE RAKOWSKI delivered the opinion of the court:

On July 22, 1986, claimant, Louis Selmo, filed an application for adjustment of claim pursuant to the Workers' Occupational Diseases Act (the Diseases Act) (820 ILCS 310/1 et seq. (West 1994)) for injuries he sustained during his employment with Freeman United Coal Mining Company (employer). The arbitrator awarded claimant 15% permanent partial disability to the person as a whole as a result of coal workers' pneumoconiosis (CWP). The Industrial Commission (the Commission) affirmed. On administrative review, the circuit court of Williamson County (Judge Murphy) remanded the case back to the Commission for reconsideration. On remand, the Commission increased the award to 20% of the person as a whole. The circuit court of Franklin County (Judge Jordan) confirmed this increase. Employer now appeals. For the following reasons, we reverse the decision of the circuit court of Williamson County.

I. FACTS

Claimant last worked for employer on March 29, 1988, at which time he retired from 34 years of coal mining employment. He was exposed to coal dust on a daily basis throughout these 34 years.

Claimant testified he was 61 years old when he retired and he retired only because of breathing and health problems from the coal dust. He would have continued to work had it not been for his breathing condition, which caused him difficulties while walking his examiner route. He first began experiencing breathing problems in 1974, and they worsened over time. Since his retirement, his problems have remained the same and limit his activities. He can walk one block or climb one flight of stairs before experiencing shortness of breath. The problems interfere with his bird hunting and limit his ability to work in his garden and around his home. After he retired, claimant held an elected position as a public health and safety commissioner in Zeigler for which he received $50 per month.

Dr. Saeed Khan examined claimant on November 4, 1988, at the request of claimant's counsel. Based upon his examination and testing, Dr. Khan diagnosed claimant as suffering from CWP and pulmonary emphysema. He concluded that claimant suffered from a significant pulmonary impairment caused by CWP and pulmonary emphysema. According to Dr. Khan, "due to his abnormal chest X[] ray, abnormal pulmonary function test, and markedly abnormal arterial blood gases, he is not suitable to perform his coal miner[']s job underground due to further deterioration of his breathing problems" and "further exposure to coal dust will be injurious to his health."

Dr. Jeffrey Selby examined claimant on June 2, 1989, at the request of employer. Dr. Selby concluded that claimant had X-ray evidence of simple CWP but that he suffered from no impairment due to CWP. Claimant did have significant impairment from marked morbid obesity and some degree of asthma. Dr. Selby found no causation between claimant's complaints and his employment.

Dr. Darryl Sugar examined claimant on December 19, 1984, at the request of employer. Dr. Sugar concluded that claimant did not suffer from CWP or any pulmonary function disability causally related to exposure to coal dust. Any symptoms claimant experienced were due to his obesity. Dr. Sugar stated that claimant could continue his employment as a coal miner without risk to his pulmonary condition. Dr. Sugar admitted that his opinion was only correct as of the date of his examination, which was four years prior to claimant's retirement.

II. ANALYSIS

At the outset, we note that the trial court's remand order does not specify that the Commission's 15% award is against the manifest weight of the evidence. The order simply states:

"The Court *** finds that the Industrial Commission should reconsider this cause in light of Zeigler Coal Co. v. Industrial Comm'n, 237 Ill. App. 3d 213, 178 Ill. Dec. 225, 604 N.E.2d 481 (5th Dist. 1992) and Monterey Coal Co. v. Industrial Comm'n, 241 Ill. App. 3d 386, 182 Ill. Dec. 36, 609 N.E.2d 339 (4th Dist. 1992), and

IT IS, THEREFORE, ORDERED, that the Decision of the Industrial Commission is remanded to the Industrial Commission for reconsideration consistent with my Letter Opinion of September 8, 1993, attached hereto."

The judge's September 8, 1993, letter states:

"I am persuaded by the briefs in each of the above cases that each should be remanded to the commission and that the commission should reconsider each case in light of the Zeigler and Monterey Cases. If the arbitrator has found and the Commission concurred that disability is caused in part by coal miners['] pneumoconiosis and if there is medical evidence of record to justify not returning to work, ...


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