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04/04/97 KENNETH W. COCHRUM v. OLD BEN COAL COMPANY

April 4, 1997

KENNETH W. COCHRUM, PLAINTIFF-APPELLANT,
v.
OLD BEN COAL COMPANY, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Franklin County. No. 93-L-50. Honorable E. Kyle Vantrease, Jduge, presiding.

Rule 23 Order Redesignated Opinion and Ordered Published April 4, 1997.

Honorable Gordon E. Maag, J., Honorable Philip J. Rarick, J., and Honorable Richard P. Goldenhersh, J., Concur. Justice Maag delivered the opinion of the court.

The opinion of the court was delivered by: Gordon

ORDER

This matter coming before the Court on the Motion of Old Ben Coal Company, Defendant-Appellee, to publish Rule 23 Order as an opinion and the Court being further fully advised on the premises.

It is hereby ordered that Old Ben Coal Company's Motion to Publish Rule 23 Order as an opinion is

ALLOWED:

PER CURIAM

The Honorable Justice MAAG delivered the opinion of the court:

The plaintiff, Kenneth W. Cochrum, filed this action against the defendant, Old Ben Coal Company, his employer, seeking damages for defendant's refusal to recall him in a suitable capacity and its alleged threat to discharge him due to plaintiff's exercise of his rights under the Workers' Compensation Act (the Act) (820 ILCS 305/1 et seq. (West 1992)). The trial court directed a verdict in favor of defendant at the close of plaintiff's case. Plaintiff filed a timely notice of appeal.

We note from the outset that plaintiff's attorney conceded in oral argument that he was only seeking compensatory damages for approximately one week. More specifically, plaintiff agreed that he was seeking compensatory damages from April 29, 1993, the date that plaintiff attempted to return to work as a roof bolter within Dr. James Wilkinson's restrictions, and May 10, 1993, the date that the United Mine Workers went on strike. Plaintiff also sought punitive damages.

The relevant facts are as follows. The plaintiff was employed as a union coal miner by the defendant from July of 1978 until he was laid off in December of 1993. Plaintiff worked underground at Mine 25 as a roof bolter. A roof bolter drills the overhead roof of the coal mine and installs permanent roof supports after a mining machine makes a cut and removes the coal from the opening. More specifically, the roof bolter places the roof bolting machine into the center of a place that has been mined out. The roof bolter must "pry" any rock or coal that might be loose with a pry bar to ensure that the roof is solid. The pry bar is solid steel and ranges in length between four to eight feet, and the heavier ones weigh about 13 to 15 pounds. A hydraulic machine is used to drill, in a specific pattern, holes in the roof of the coal mine. The roof bolter on the left places two bolts on the left, and the roof bolter on the right places two bolts on the right. The roof bolts measure from five feet up to eight feet. After drilling the hole, the roof bolter inserts a tube of glue or epoxy resin into the hole. The bolt is then inserted into the hole until the glue sets up, and pressure is maintained against the top for a few seconds. The roof bolting machine contains a material tray. When the material tray is empty, the materials are then sent back up by a scoop, and the roof bolter removes the materials from the scoop and places them on the roof bolter. The bolts generally come in bundles of five, and the roof bolters carry the bundles from the scoop to the material tray. If a roof bolter is installing eight-foot bolts and they are in a position where the ceiling is lower than eight feet, the bolt must be bent so it can be placed into the hole. The roof bolter then straightens the bolt up when the top of the bolt is placed into the hole. Additionally, a roof bolters' ancillary responsibilities include lifting materials, loading the machine, moving water lines, keeping dust down, and in general, maintaining the section.

On December 21, 1991, plaintiff injured his shoulder while he was reloading supplies on the roof bolting machine. Plaintiff was initially treated by Dr. Richard Fox and Dr. Richard Morgan. Dr. Morgan referred plaintiff to Dr. Wilkinson. Dr. Wilkinson had previously treated plaintiff's shoulder in 1988 when a large rock fell and hit his shoulder. The defendant requested that plaintiff be examined by Dr. Richard Lehman also. On March 18, 1992, Dr. Lehman examined plaintiff's shoulder and determined that he would be able to return to work on March 23, 1992, with no restrictions. At that time, plaintiff was still under Dr. Wilkinson's care. Dr. Wilkinson had not given the plaintiff a release to return to work. Plaintiff received a letter from Old Republic Insurance Company, dated March 19, 1992, advising him that his temporary total disability benefits would be terminated on March 23, 1992. On that date, plaintiff started receiving sickness and accident benefits. Plaintiff then had arthroscopic surgery in late April 1992. On May 28, 1992, Dr. Wilkinson released the plaintiff to return to work without any restrictions.

Plaintiff testified that when he returned to work on May 28, 1992, his shoulder was "extremely weak" and "tight". When the plaintiff returned to work, he told the assistant mine manager, Marvin Webb, that he was under "financial duress" and that was the reason that he had returned to work. He claimed that he also told Mr. Webb that his shoulder was "extremely sore" and "weak". On June 1, 1992, Mr. Webb instructed the plaintiff to pick up some steel water line. Plaintiff protested, stating that his shoulder was weak and sore. Mr. Webb told the plaintiff that if he could ...


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