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Industrial Commission Division Peabody Coal Co. v. Industrial Commission

June 16, 2004

INDUSTRIAL COMMISSION DIVISION PEABODY COAL COMPANY, APPELLANT,
v.
THE INDUSTRIAL COMMISSION ET AL. (FRANCIS MISKLE AND JUDY BARR TOPINKA, STATE TREASURER AND EX-OFFICIO CUSTODIAN OF THE RATE ADJUSTMENT FUND, APPELLEES).



Appeal from the Circuit Court of Randolph County. No. 03-MR-2. Honorable Jerry D. Flynn, Judge, presiding.

The opinion of the court was delivered by: Justice Goldenhersh

UNPUBLISHED

On December 8, 1997, the claimant, Francis Miskle, filed an application for adjustment of claim pursuant to the Workers' Occupational Diseases Act (Act) (820 ILCS 310/1 et seq. (West 1996)). The claimant alleged he was disabled as the result of an occupational disease that arose out of his employment with Peabody Coal Company (the employer). Following a hearing, the arbitrator found that the claimant suffered from work-related, chronic obstructive pulmonary disease and chronic bronchitis, which were either caused in part or aggravated by his exposure to coal mine dust while working for the employer. The arbitrator awarded the claimant 15% permanent partial disability of the body as a whole (820 ILCS 310/7(d) (West 1996); 820 ILCS 305/8(d) (West 1996)). Each party filed a petition for the review of the arbitrator's decision. The Illinois Industrial Commission (Commission) modified the decision of the arbitrator by finding the claimant permanently disabled to the extent of 25% of the body as a whole. The employer appealed. The circuit court confirmed the Commission's decision. The employer raises three issues on appeal: (1) whether the Commission's decision is against the manifest weight of the evidence, (2) whether the claimant proved he was disabled within two years of the date of his last exposure, as defined in sections 1(e) and 1(f) of the Act (820 ILCS 310/1(e), 1(f) (West 1996)), and (3) whether the claimant is entitled to an award of 25% loss of the use of the body as a whole. We affirm.

FACTS

After working for 22 years for the employer, the claimant retired on July 29, 1997, his sixty-third birthday. At the arbitration hearing, the claimant was 66 years old. The claimant explained that he did not want to retire. He described why he decided to retire: "[M]y health was getting bad and I got old enough to draw Social Security[,] and I got scared of my job, afraid I'd get hurt. *** I couldn't breathe[,] and I couldn't get enough air through a respirator." The claimant was going to try to work for another year and a half until a new contract was signed, because that would have increased his pension, but he decided not to wait for the new contract due to his health and safety concerns. The claimant said that about three weeks before he retired, he got knocked down by a rock and that this, too, made him think it might be time to retire. He later reiterated that his main concern was his inability to breathe and wear a dust mask.

The claimant testified that he underwent two angioplasties, the most recent one having been performed in 1993. He denied that his heart condition had any effect on his decision to retire, stating he actually felt better after those procedures had been performed. The claimant underwent treatment for colon cancer in 1990, but he has since recovered.

The claimant has not sought other employment since his retirement because he does not believe he is healthy enough to hold a job. The claimant has a sixth grade education. He left school to help on the family farm after his father was injured. The claimant worked for a variety of employers before starting his job with the employer. The claimant testified that he was exposed daily to rock, sand, and coal dust during the 22 years he spent working for the employer.

The claimant first noticed breathing problems in 1990. He testified that his breathing problems got progressively worse and affected his daily activities. For example, the claimant used to swim and walk, but he no longer participates in those activities. He can only walk about 60 to 100 yards at a time and climb one set of stairs. The claimant stated that he still maintains a garden but that he has to do a little bit each day rather than all the work at once. The claimant started smoking when he was 20 years old and smoked a pack a day until late winter 1996 or early 1997. He now only smokes "once in a great while."

On cross-examination, the claimant admitted he has not seen a doctor specifically to treat his breathing problems. He did, however, testify that he had a daily cough with sputum production for several years before he retired. The claimant explained that even though he started having breathing problems in 1990, he was diagnosed with colon cancer around the same time and, therefore, was more concerned about the cancer than his breathing problems. The claimant testified that he mentioned his breathing problems to his primary care physician, Dr. Coulter. The claimant took a normal retirement and did not apply for disability.

On October 13, 1997, the claimant was examined by Dr. William Houser, a pulmonary specialist, upon a referral by the claimant's attorney. Dr. Houser is the medical director at the Black Lung Clinic at Deaconess Hospital in Evansville, Indiana. Dr. Houser has performed between 2,000 and 3,000 black lung examinations on referrals from the United States Department of Labor or other physicians. Dr. Houser noted that the claimant had a seven-to eight-year history of respiratory symptoms, including a daily cough with sputum production, exertional dyspnea, and shortness of breath while walking or climbing stairs. Pulmonary function tests showed a mild airway obstruction and a mild reduction in the MVV (maximum voluntary ventilation). Dr. Houser categorized the claimant's chest X ray as 0/1, which means that while there were some abnormalities consistent with coal workers' pneumoconiosis, there were not enough opacities to give a positive reading.

Dr. Houser opined that the claimant suffers from chronic obstructive pulmonary disease and chronic bronchitis secondary to smoking and coal and rock dust exposure. Dr. Houser explained that coal miners can develop chronic obstructive pulmonary disease or chronic bronchitis from mining alone and that most smokers do not get either of the diseases. For example, the reported incidence of chronic obstructive pulmonary disease in smokers is in the 15% to 18% range, while the highest incidence of chronic bronchitis in smokers is 30%. According to Dr. Houser, coal mining is a well-documented cause of chronic bronchitis. Dr. Houser concluded that the claimant suffers from a permanent impairment of function due to his airway obstruction, which makes him unable to perform heavy manual labor and leaves him disabled from mining, because any additional dust exposure would aggravate the claimant's condition.

On February 22, 2000, Dr. Tuteur, a pulmonologist, examined the claimant at the employer's request. Pulmonary function studies showed a mild obstructive ventilatory defect that improved following the administration of an aerosolized bronchodilator. He noted a mild increase in residual volume suggesting air trapping. He saw no abnormality on the chest X ray or CT scan. Dr. Tuteur concluded that the claimant did not suffer from coal workers' pneumoconiosis or any other disease induced by coal mine dust. He opined that the claimant suffered from mild chronic obstructive pulmonary disease caused by smoking a pack of cigarettes per day for 42 years.

Dr. Tuteur explained that the claimant's condition is rarely caused by chronic inhalation of coal mine dust. He specifically stated, "The frequency with which cigarette smoke does this, compared to coal mine dust producing the same phenomenon, is 15 to 50 times greater." On cross-examination, Dr. Tuteur agreed that coal mine dust can produce airflow obstruction, and he agreed that coal mine dust cannot be completely ruled out as a contributing cause. Dr. Tuteur agreed that the best advice for someone with chronic obstructive pulmonary disease is to stay away from agents which can cause or aggravate the disease.

The claimant's medical records from his primary care physician, Dr. Coulter, were introduced into evidence by the employer. The records cover the claimant's treatment from December 1987 through 1997. During that time, the claimant made complaints of productive coughs and chest congestion and was treated for bronchitis. For example, an entry from Sparta Community Hospital dated October 29, 1990, states, "[The claimant] has a morning cough productive of some black sputum from the coal mine." A January 28, 1991, discharge summary after the claimant's surgery for colon cancer reported that pulmonary function testing showed a mild obstructive ...


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