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03/18/97 FREEMAN UNITED COAL MINING COMPANY v.

March 18, 1997

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



Appeal from the Circuit Court of Williamson and Franklin County. Honorable Paul S. Murphy and Larry O. Baker, Judges Presiding.

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

The opinion of the court was delivered by: Rakowski

JUSTICE RAKOWSKI delivered the opinion of the court:

Joe Griffith (claimant) filed an application for adjustment of claim pursuant to the Workers' Occupational Diseases Act (the Act) (820 ILCS 310/1 et seq. (West 1994)) for injuries allegedly sustained to his lungs arising out of and in the course of his employment as a coal miner. The arbitrator awarded benefits. The Industrial Commission (Commission) reversed, finding that claimant's condition of ill-being was solely related to his history of smoking. The circuit court reversed. For the reasons that follow, we conclude the Commission's decision is not against the manifest weight of the evidence. Therefore, we reverse the judgment of the circuit court and reinstate the Commission's decision.

FACTS

Claimant had worked 25 years in the coal mine industry, where he was continually exposed to coal dust. In 1976, claimant began working for Freeman United Coal Mining Company (employer) as a roof bolter, a laborer, and a mine repairman, where he was also exposed to coal dust. Claimant was laid off work in December 1982 when the coal mine closed, although he remained on the panel because he was willing to continue work. After his birthday in December 1982, claimant decided to take retirement and has not looked for worked since then. At the time of arbitration (1991), claimant was 64 years old and unemployed.

Claimant first noticed breathing problems in 1970 or 1971, while working in the mines as a belt shoveler. Since then, his breathing problems have worsened. At arbitration, claimant testified that he experiences shortness of breath when mowing his lawn or climbing stairs, and he can no longer hunt or garden. He can only walk about one block before becoming short of breath and he must take medication three times daily. Claimant smoked one-half of a pack of cigarettes per day for about 50 years. He stopped smoking in August 1990 after he had a heart attack.

In December 1984, claimant was examined by Dr. Saeed Khan, who is board certified in internal medicine. Claimant told Dr. Khan that he could not walk more than one block or climb stairs without getting short of breath. Claimant said his shortness of breath worsened over time and he experiences an excessive cough. Claimant also told Dr. Kahn that he retired from the coal mines because of breathing problems. An initial physical examination showed pulmonary hypertension, dry crepitations, and bilateral rhonchi (rattling sound). Dr. Kahn's initial diagnosis was chronic pulmonary disease, emphysema, and coal workers' pneumoconiosis.

Thereafter, Dr. Kahn reviewed a chest X ray taken on April 30, 1985, which showed moderate hyperinflation and multiple small parenchymal calcifications suggesting granulomatous disease, which is consistent with emphysema and coal workers' pneumoconiosis. The initial pulmonary function study and blood gas tests performed by Dr. Kahn were abnormal and showed obstructive pulmonary disease, which is also consistent with emphysema and coal workers' pneumoconiosis. Dr. Kahn performed another pulmonary function study on June 17, 1985, and found the results were fairly good.

Dr. Kahn found that claimant has emphysema, chronic bronchitis, and coal workers' pneumoconiosis. In his opinion, the pneumoconiosis was caused by claimant's exposure to coal dust for 25 years, while his emphysema and chronic bronchitis were caused by both his smoking and coal dust exposure. Dr. Khan admitted, however, that claimant's history of smoking could account for all of his symptoms.

On June 24, 1988, claimant was examined by Dr. William Houser, who is board certified in internal medicine and pulmonary disease. Dr. Houser noted that claimant had occasional coughing episodes and would get short of breath when walking and climbing stairs. He opined that claimant has pneumoconiosis, which was caused by coal mining, and chronic obstructive pulmonary disease, which was caused by both smoking and exposure to dust. Dr. Houser stated that claimant cannot have further exposure to coal dust without endangering his health, but that claimant is capable of performing all but the most physically demanding jobs.

On June 17, 1985, claimant was examined by Dr. Darryl Sugar, who is board certified in both internal medicine and nephrology (kidney disease). Dr. Sugar noted a mild decrease in breath sounds bilaterally with scattered wheeze, but the examination was otherwise unremarkable. A chest X ray revealed multiple bilateral parenchymal calcifications and evidence of old histoplasmosis, but no evidence of pneumoconiosis. Also, pulmonary function and arterial blood gas studies were within normal range. Dr. Sugar concluded that claimant has chronic bronchitis secondary to smoking, but he does not have pneumoconiosis. He opined that if claimant stopped smoking his symptoms would improve and enable him to return to work at the coal mines.

On July 26, 1988, Dr. Tuteur examined claimant, took a chest X ray, and conducted pulmonary function testing. Dr. Tuteur is board certified in internal medicine and pulmonary medicine. He viewed the X ray as normal, except for some calcifications that are consistent with healed infections like histoplasmosis. The results of the pulmonary function test and arterial blood gas analysis were normal, and claimant's lung volumes showed no restrictive defect. Dr. Tuteur concluded that claimant does not have clinically significant, physiologically significant, or radiographically significant coal workers' pneumoconiosis, and that any pulmonary impairment was caused by smoking. At best, he stated it is "remotely possible" that claimant could have microscopic evidence of pneumoconiosis, and in that event, he recommended that claimant not be further exposed to coal mine dust.

Based on this evidence, the arbitrator found claimant suffered from pneumoconiosis that was causally related to and arose out of and in the course of his coal mining employment. The arbitrator awarded claimant permanent partial disability benefits to the extent of 3% loss of use of the person as a whole. The Commission reversed. The Commission expressly assigned greater weight to the opinions of Dr. Tuteur and Dr. Sugar than to the opinion of Dr. Kahn and found ...


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