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Freeman United Coal Mining Company v. Industrial Commission

November 16, 2000

FREEMAN UNITED COAL MINING COMPANY, APPELLANT,
v.
THE INDUSTRIAL COMMISSION, ET AL., (MARY NAYLOR, WIDOW OF BOB NAYLOR, DECEASED, APPELLEE).



APPEAL FROM THE CIRCUIT COURT OF FRANKLIN COUNTY No. 99 MR 0007 HONORABLE E. KYLE VANTREASE, JUDGE PRESIDING.

The opinion of the court was delivered by: Justice Hoffman

The claimant, Mary Naylor, the surviving spouse of Bob Naylor (decedent), filed an application for adjustment of claim pursuant to the Workers' Occupational Diseases Act (Act) (820 ILCS 310/1 et seq. (West 1998)), seeking benefits from Freeman United Coal Mining Company (Freeman). After a hearing, an arbitrator awarded the claimant benefits under section 7 of the Act (820 ILCS 310/7 (West 1998)) and ordered Freeman to pay the claimant $1,750.00 for the decedent's funeral expenses. On review, the Industrial Commission (Commission) affirmed and adopted the arbitrator's decision. Freeman sought judicial review of the Commission's decision in the circuit court. The circuit court confirmed the Commission's decision, and this appeal followed.

The "Request for Hearing" which was executed by the attorneys representing the parties to this claim and which is contained in the record reflects that the only items in dispute at the hearing were the questions of: 1) whether the decedent's death was causally connected to his employment by Freeman, specifically whether the decedent's death was causally related to his exposure to an occupational disease, and 2) the amount of the decedent's average weekly wage as calculated pursuant to the Act. When the parties appeared before the arbitrator on March 25, 1998, he stated that the issues for determination were causation and average weekly wage. At that point in the proceeding, Freeman's attorney stipulated to the claimant's calculation of the decedent's average weekly wage, leaving causation as the only disputed issue. Thereafter, the hearing commenced, and the following evidence was adduced.

The decedent died on March 4, 1985. Prior to his retirement from Freeman's employ on August 13, 1983, the decedent worked as a coal miner for approximately 19½ years. During that time, he was exposed to coal dust. After his retirement from Freeman's employ, the decedent did not work.

The claimant testified that the decedent experienced breathing problems prior to the time that he retired and for a period of four to five years before he died. She testified that he was treated by Dr. Moskoff, who prescribed medication which the decedent took up until his death. According to the claimant, the decedent's breathing problems became progressively worse, requiring increased medication. The claimant admitted that the decedent smoked about a pack of cigarettes each day for most of his adult life but stated that he stopped smoking five to seven years before he died.

Dr. Moskoff, a board certified family practitioner, was the decedent's treating physician. His testimony was taken at an evidence deposition on March 6, 1998, some 19 days before the hearing before the arbitrator. Dr. Moskoff testified that he could not recall when he first treated the decedent, nor could he testify as to the dates upon which he treated the decedent. He explained that his records had been destroyed in a fire. The only records which Dr. Moskoff was able to produce were those he obtained from Herrin Hospital, the latest being for an admission in 1972. Dr. Moskoff testified that, according to the records at his disposal, the first time it was documented that the decedent had pulmonary problems was during his 1972 hospitalization. Thereafter, according to Dr. Moskoff's recollection, the decedent complained of shortness of breath, especially with exertion. Dr. Moskoff stated that he treated the decedent for both heart problems and pulmonary disease. On direct examination, the claimant's attorney asked Dr. Moskoff if, based upon his recollection, the decedent had coal workers' pneumoconiosis (CWP). At that point in the deposition, Freeman's attorney interposed an objection pursuant to section 12(a) of the Act (820 ILCS 310/12(a) (West 1998)) and stated that he had a continuing objection to Dr. Moskoff's testimony. Over that objection, Dr. Moskoff testified that the decedent "apparently" suffered from CWP caused by exposure to coal dust in combination with cigarettes. Dr. Moskoff stated that the decedent's pulmonary condition aggravated his heart problems. Dr. Moskoff was of the opinion that the decedent's CWP, chronic bronchitis, and chronic obstructive pulmonary disease (COPD) were contributing factors in his death.

At the request of the claimant's attorney, Dr. Saeed Kahn reviewed the decedent's medical records, including pathology reports, and the deposition of Dr. William Getty, who examined the decedent on April 27, 1984. Dr. Kahn is board certified in internal medicine and served as the director of the cardiopulmonary laboratory at Franklin Hospital in Benton, Illinois. Dr. Kahn testified that the decedent suffered from chronic bronchitis, emphysema, and CWP. Dr. Kahn was of the opinion that the decedent's chronic bronchitis and emphysema were caused by smoking and coal mining. He stated that the decedent's emphysema and CWP aggravated his heart condition and contributed to his death. He could not say, however, that the decedent would have survived his heart attack on March 4, 1985, if he had normal lungs.

Dr. Joe Garcia, examined the decedent's medical records at the request of Freemen. Dr. Garcia is board certified in internal medicine, pulmonary medicine, and critical care medicine, and he directs the occupational lung center at Indiana University. Dr. Garcia testified that the decedent died as the result of cardiovascular disease which was unrelated to coal dust exposure. He stated that, based upon the records he reviewed, he found no evidence of any pulmonary impairment which contributed to the decedent's fatal heart attack. According to Dr. Garcia, the results of the pulmonary function testing Dr. Getty performed on the decedent 11 months prior to the decedent's death were not abnormal. Dr. Garcia testified that the decedent's shortness of breath and cough were due to an insufficient coronary flow. Due to the long latency period for CWP, Dr. Garcia was of the opinion that any abnormal pulmonary function from which the decedent may have suffered in the last year of his life was not due to coal dust exposure. Dr. Garcia admitted, though, that chronic bronchitis, emphysema, and CWP can aggravate an existing heart condition.

Dr. William Getty, a board certified internist, examined the decedent on April 27, 1984, at Freeman's request. At the time of that examination, the decedent complained of difficulty breathing, difficulty which had gradually increased over a period of 10 years. The decedent told Dr. Getty that his breathing problems interfered with his ability to sleep and that he could not work around his home for more that 20 to 30 minutes without resting. Dr. Getty ordered an x-ray of the decedent's chest and testified that both he and his consulting radiologist interpreted the x-ray as consistent with CWP. He testified, though, that the decedent did not suffer from any pulmonary function disability. According to Dr. Getty, the decedent's pulmonary function tests were between normal range and early minimal change and were consistent with COPD or chronic bronchitis. He testified that any pulmonary function disability that the decedent suffered was "probably" not related to CWP. According to Dr. Getty, the decedent suffered from hypertensive cardiovascular disease. Dr. Getty was of the opinion that the decedent's COPD was primarily caused by smoking, but admitted that coal dust was a causative factor.

Dr. James Dove, who is board certified in both internal medicine and cardiovascular disease, also reviewed the decedent's medical records at the request of Freeman. He did not, however, review any pathology slides or x-rays. Dr. Dove testified that the decedent's death was caused by either an acute heart attack or a fatal cardiac arrhythmia caused by coronary disease, not lung disease. On cross-examination, however, Dr. Dove agreed that the decedent's lung condition could have been a causative factor in his death. According to Dr. Dove, the decedent's post-mortem examination revealed significant injury to his heart muscle. Nothing, in Dr. Dove's opinion, suggested that the decedent's cardiac condition was caused by exposure to coal dust. He testified that he found no evidence that the decedent suffered from any pulmonary impairment. He did find evidence of chronic lung disease, which he believed was caused by the decedent's cigarette smoking and his coronary artery disease. According to Dr. Dove, the tests performed on the decedent 11 months prior to his death revealed very minimal obstructive pulmonary disease and good airflow and diffusion capacity.

The record contains two pathology reports. Dr. Mina Gabrawy performed an autopsy upon the decedent on March 5, 1985. In his report, Dr. Gabrawy noted severe coronary atherosclerosis, mild to moderate anthracosilicosis, and possible bronchopneumonia. His report does not, however, discuss the impact that any pulmonary disease might have had upon the decedent's death.

The second pathology report was authored by Dr. Joseph C. Eggleston, Director of Surgical Pathology at John Hopkins Hospital. Dr. Eggleston's report states that the decedent suffered from severe coronary atherosclerosis with up to a 90% narrowing of the vessel lumens. He opined that the decedent's death was related to his coronary disease. Dr. Eggleston found a moderate degree of emphysema, but found no evidence of CWP. According to Dr. Eggleston's report, if the decedent suffered from any pulmonary disability during his lifetime, it would have been attributed to his moderate degree of emphysema.

The arbitrator overruled Freeman's section 12(a) objection to Dr. Moskoff's opinion testimony, finding section 12(a) inapplicable. The arbitrator awarded the claimant benefits under the Act. In doing so, he made several findings which Freeman now asserts are against the manifest weight of the evidence, namely that: 1) the decedent suffered from an occupational disease which arose out of and in the course of his employment by Freeman; 2) the decedent suffered a disabling condition of ill-being which was causally related to his occupational disease; and 3) the decedent's death was causally related to his occupational disease.

Freeman filed a petition seeking a review of the arbitrator's decision by the Commission. In that petition, it claimed that the arbitrator erred in overruling its section 12(a) objection to Dr. Moskoff's testimony and erred in finding that the decedent suffered from: 1) an occupational disease covered by the Act; 2) a disease which arose out of his employment; and 3) a disease which arose in the course of his employment. In the "Statement of Exceptions" it filed with the Commission, Freeman also argued that, although there was evidence that the decedent had CWP, he was not disabled by the disease and it was not a causative factor in his death. ...


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