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Docksteiner v. Industrial Commission

February 20, 2004

ALLAN DOCKSTEINER, APPELLANT,
v.
THE INDUSTRIAL COMMISSION ET AL. (PEABODY COAL COMPANY, APPELLEE).



APPEAL FROM THE CIRCUIT COURT OF GALLATIN COUNTY No. 02 MR 07 HONORABLE DON FOSTER, JUDGE PRESIDING.

The opinion of the court was delivered by: Justice Hoffman

UNPUBLISHED

The claimant, Allan Docksteiner, appeals from an order of the circuit court confirming a decision of the Industrial Commission (Commission) to deny him benefits under the Workers' Occupational Diseases Act (Act) (820 ILCS 310/1 et seq. (West 1996)), which he sought for having allegedly contracted coal workers' pneumoconiosis (CWP) while in the employ of Peabody Coal Company (Peabody). For the reasons which follow, we affirm.

The following factual recitation is taken from the evidence presented at the arbitration hearing.

The claimant worked as a coal miner for approximately 25 years during which time he was exposed to, and breathed, coal mine dust. According to the claimant, he bid for a "top job" in 1971 because he was having trouble breathing. He stated that he was coughing, spitting up, and experienced shortness of breath.

The claimant testified that, while working as a miner, he sought treatment for his breathing problems with his family physician, Dr. Larry Jones, but could not remember precisely when that treatment began. The claimant stated that Dr. Jones prescribed a walking regimen. He admitted, however, that Dr. Jones did not prescribe any medication for his alleged breathing problems. Dr. Jones's records for the period from 1980 through 1996 were introduced into evidence by Peabody. Those records do not reflect any treatment for chronic pulmonary complaints. Rather, as the Commission observed, Dr. Jones's office notes for visits by the claimant from 1981 through 1996 repeatedly contain the notation "Lungs are clear."

The claimant was employed by Peabody at its Eagle No. 2 mine. On July 12, 1993, Peabody closed that mine and the claimant has not worked as a miner since. The claimant testified that he was experiencing difficulty breathing when he last worked as a miner.

At the suggestion of his attorney, the claimant saw Dr. William Houser, a board certified pulmonary specialist. Dr. Houser examined the claimant on only one occasion, January 7, 1997. On that date, Dr. Houser ordered x-rays taken of the claimant's chest. The radiologist who interpreted those x-rays, Dr. Sam Baker, noted small rounded opacities in the mid and lower lung zones consistent with pneumoconiosis. At his evidence deposition, Dr. Houser testified that he diagnosed the claimant as suffering from CWP, category 1/1; mild chronic obstructive pulmonary disease (COPD); hypertension; arteriosclerotic heart disease; status post- myocardial infarction; diabetes mellitus; hypercholesterolemia; and degenerative arthritis. He opined that the claimant suffered occupational exposure to coal dust for approximately 25 years and that the claimant's CWP is related to his employment as a coal miner. Dr. Houser testified that, since the claimant suffers from CWP and COPD, he should avoid any additional exposure to coal and rock dust. According to Dr. Houser, the claimant's CWP would have been present when he left mining.

On March 4, 1997, the claimant filed an application for adjustment of claim under the Act asserting that he suffered "Shortness of Breath & Exercise Intolerance" as a consequence of the "[i]nhallation of coal mine dust including but not limited to coal dust, rock dust, fumes & vapors for a period in excess of 25 years."

At the request of the attorneys representing Peabody, the claimant's chest x-ray taken on January 7, 1997, was reviewed by Dr. Jerome Wiot, a professor of radiology at the University of Cincinnati. In a letter dated January 26, 1998, Dr. Wiot reported that:

"There is no evidence of coal worker's pneumoconiosis. This patient has atherosclerotic change in the thoracic aorta, but the chest is otherwise unremarkable."

Dr. Peter G. Tuteur, a physician board certified in internal medicine and pulmonary disease, examined the claimant on July 14, 1998, at the request of Peabody. On that date, Dr. Tuteur ordered an x-ray of the claimant's chest, a CT scan, and a pulmonary function study. A report of the CT scan written by Dr. Richard Slone states that no interstitial lung disease was seen on the images. A report of the claimant's chest x-ray written by Dr. Harvey Glazer states that minimal linear atelectasis was noted in the left base and that the lungs were otherwise clear. Dr. Tuteur testified that, in addition to the radiologists, he interpreted both the chest x-ray and CT scan. He stated that, based upon his examination of the claimant, his review of the claimant's chest x-ray and CT scan and the results of the pulmonary function study, there was "no physiologically significant or radiographically significant pulmonary process." According to Dr. Tuteur, the claimant "does not have radiographically significant coal workers' pneumoconiosis." In his written report, Dr. Tuteur noted that, although the claimant is "clearly disabled from returning to work in the coal mines, this disability is in no way related in whole or in part to his coal mine dust exposure."

On February 9, 2000, Dr. Michael S. Alexander, a physician board certified in diagnostic radiology and a certified pneumoconiosis B reader, reviewed the claimant's January 7, 1997, chest x-ray. Dr. Alexander issued a report in which he recorded an impression of: CWP, category p/q, 1/1, pi; and bilateral chest wall pleural thickening (mild).

Approximately one year prior to the arbitration hearing, the claimant suffered a stroke. During the hearing, the claimant testified that, in addition to his breathing problems, he suffers ...


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