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Freeman United Coal Mining Company v. The Industrial Commission

November 03, 1999

FREEMAN UNITED COAL MINING COMPANY, APPELLANT,
V.
THE INDUSTRIAL COMMISSION ET AL. (HELEN MALLABURN, WIDOW OF LESLIE MALLABURN, DECEASED, APPELLEE



Appeal from the Circuit Court of Williamson County. No. 98-MR-34

Rakowski, Colwell, Holdridge, and Rarick, JJ., concur.

The opinion of the court was delivered by: Presiding Justice McCULLOUGH

INDUSTRIAL COMMISSION DIVISION

Honorable William H. Wilson, Judge, presiding.

Respondent employer Freeman United Coal Mining Company appeals from an order of the circuit court of Williamson County confirming a decision of the Illinois Industrial Commission (Commission). The Commission affirmed and adopted the decision of the arbitrator. The arbitrator awarded claimant Helen Mallaburn, widow of Leslie Mallaburn, deceased, $231.84 per week beginning July 29, 1990, the date of her husband's death, and continuing. 820 ILCS 305/7(a), 310/7 (West 1996).

The issues are whether (1) the Commission improperly admitted into evidence decedent's death certificate, the pathology report of Dr. Miles Jones, and the testimony of Dr. Mina Gabrawy; (2) as a matter of law, this claim is barred by section 1(f) of the Workers' Occupational Diseases Act (Act) (820 ILCS 310/1(f) (West 1996)); and (3) the Commission's finding that the death was causally related to an exposure to an occupational disease was against the manifest weight of the evidence. We affirm. Only those facts necessary to an understanding of this court's Disposition will be discussed.

On July 29, 1990, the employee's date of death, an autopsy was performed at claimant's request, without notice to respondent employer. Over respondent employer's objection, the Commission admitted into evidence decedent's death certificate, the pathology report of Dr. Miles Jones, and the testimony of Dr. Mina Gabrawy.

Section 12(b) of the Act states:

"Whenever, after the death of an employee, any party in interest files an application for adjustment of claim under this Act, and it appears that an autopsy may disclose material evidence as to whether or not such death was due to the inhalation of silica or asbestos dust, the commission, upon petition of either party, may order an autopsy at the expense of the party requesting same, and if such autopsy is so ordered, the commission shall designate a competent pathologist to perform the same, and shall give the parties in interest such reasonable notice of the time and place thereof as will afford a reasonable opportunity to witness such autopsy in person or by a representative. It shall be the duty of such pathologist to perform such autopsy as, in his best judgment, is required to ascertain the cause of death. Such pathologist shall make a complete written report of all his findings to the commission (including laboratory results described as such, if any). The said report of the pathologist shall contain his findings on post-mortem examination and said report shall not contain any Conclusion of the said pathologist based upon the findings so reported. Said report shall be placed on file with the commission, and shall be a public record. Said report, or a certified copy thereof, may be introduced by either party on any hearing as evidence of the findings therein stated, but shall not be conclusive evidence of such findings, and either party may rebut any part thereof. Where an autopsy has been performed at any time with the express or implied consent of any interested party, and without some opposing party, if known or reasonably ascertainable, having reasonable notice of and reasonable opportunity of witnessing the same, all evidence obtained by such autopsy shall be barred upon objection at any hearing. This paragraph shall not apply to autopsies by a coroner's physician in the discharge of his official duties." 820 ILCS 310/12(b) (West 1996).

In King v. Industrial Comm'n, 301 Ill. App. 3d 958, 962, 704 N.E.2d 715, 718 (1998), appeal allowed, 184 Ill. 2d 558, 714 N.E.2d 527 (1999), this court stated with regard to the Workers' Compensation Act (820 ILCS 305/1 et seq. (West 1996)) as follows:

"Statutory construction is a question of law. Branson v. Department of Revenue, 168 Ill. 2d 247, 254, 659 N.E.2d 961, 965 (1995). In cases involving the interpretation of a statute by an agency charged with administering it, the agency's interpretation is afforded considerable deference, but it is not binding on the court and will be rejected if erroneous. Denton v. Civil Service Comm'n, 176 Ill. 2d 144, 148, 679 N.E.2d 1234, 1236 (1997). This court considers the question de novo. Branson, 168 Ill. 2d at 254, 659 N.E.2d at 965. 'The primary goal of statutory interpretation is to ascertain and give effect to the intent of the legislature, which is best evidenced by the clear and unambiguous language of the statute. Kraft, Inc. v. Edgar, 138 Ill. 2d 178, 189, 561 N.E.2d 656, 661 (1990). All portions of the Act must be read as a whole and in such a manner as to give them the practical and liberal interpretation intended by the legislature. Vaught v. Industrial Comm'n, 52 Ill. 2d 158, 165, 287 N.E.2d 701, 705 (1972). The purpose of the Act is to provide employees with a prompt, sure remedy for their injuries and to require that the cost of industrial accidents be borne by the industry rather than by its individual members. Lester v. Industrial Comm'n, 256 Ill. App. 3d 520, 523, 628 N.E.2d 191, 193 (1993).' Modern Drop Forge Corp. v. Industrial Comm'n, 284 Ill. App. 3d 259, 264, 671 N.E.2d 753, 756 (1996)."

The first paragraph of section 12(b) of the Act relates to when the Commission may order an autopsy, i.e., "it appears that an autopsy may disclose material evidence as to whether or not such death was due to the inhalation of silica or asbestos dust" and one party petitioned for an autopsy. 820 ILCS 310/12(b) (West 1996). Paragraph two of section 12(b) states "such pathologist" is required to ascertain the cause of death and make a complete report. 820 ILCS 310/12(b) (West 1996). "Such pathologist" refers to the pathologist appointed by the Commission in paragraph one of section 12(b). 820 ILCS 310/12(b) (West 1996). The second sentence of paragraph two of section 12(b) refers to "the said report of the pathologist," and paragraph three of section 12(b) also refers to "said report" in both of its sentences. 820 ILCS 310/12(b) (West 1996). Therefore, the first three paragraphs of section 12(b) clearly apply to the same subject and limit the autopsy to the situation where the Commission has appointed the pathologist to determine the cause of death. Paragraph four, however, does not refer to the autopsy by "such pathologist" or the admissibility of "said report." Obviously, if an autopsy is ordered by the Commission upon petition by one of the parties, then the circumstances arising in paragraph four of section 12(b) would never occur. Therefore, by its language, logic, and common sense, paragraph four relates to a somewhat different subject than the first three paragraphs of section 12(b).

Paragraph four of section 12(b) expressly applies to autopsies "performed at any time with the express or implied consent of any interested party." (Emphasis added.) 820 ILCS 310/12(b) (West 1996). This language distinguishes these types of autopsies from the Commission-ordered autopsies. We agree with the interpretation of the Commission that the "autopsy" referred to in paragraph four refers to autopsies for determining whether death was due to inhalation of silica or asbestos dust. 820 ILCS 310/12(b) (West 1996). If the legislature intended a different result, it could have set paragraph four off as a separate subsection, thereby evidencing a complete change in subject matter.

Respondent argues no referential and qualifying words or phrases in paragraph four to demonstrate a legislative intent to limit its application to silica- and asbestos-dust cases. However, paragraph four is to be construed in light of the Act's purpose, which is the same as the previously quoted purpose of the Workers' Compensation Act. General American Life Insurance Co. v. Industrial Comm'n, 97 Ill. 2d 359, 370, 454 ...


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