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Setzekorn v. Industrial Commission

December 2, 2004

DORA ANN SETZEKORN, WIDOW OF HENRY SETZEKORN APPELLANT,
v.
THE INDUSTRIAL COMMISSION ET AL. (JUDY BARR-TOPINKA, STATE TREASURER AND EX-OFFICIO CUSTODIAN OF THE RATE ADJUSTMENT FUND AND FREEMAN UNITED COAL MINING CO., APPELLEES).



Appeal from Circuit Court of Franklin County No. 03MR18. Honorable Kyle E. Vantrease, Judge Presiding.

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

PUBLISHED

Industrial Commission Division

On December 26, 1997, claimant, Dora Ann Setzekorn, the surviving spouse of Henry Setzekorn (decedent), filed an application for adjustment of claim pursuant to the Workers' Occupational Diseases Act (Act) (820 ILCS 310/1 through 27 (West 1996)), seeking benefits from Freeman United Coal Mining Company (Freeman). After a hearing, the arbitrator denied claimant benefits. On review, the Industrial Commission (Commission) affirmed and adopted the arbitrator's decision. Claimant sought judicial review of the Commission's decision in the circuit court of Franklin County which confirmed the Commission's decision.

Claimant appeals, arguing that (1) the Commission erred by (a) "failing to apply res judicata to the issues already determined" in the former case, (b) "failing to take judicial notice of the Federal Register," and (c) "ignoring the statutory evidentiary presumption concerning pneumoconiosis deaths," and (2) the Commission's finding that "[t]he death of *** decedent was not causally connected to his exposure to the hazards of an occupational disease" is against the manifest weight of the evidence. We affirm the circuit court's order confirming the Commission's decision.

Decedent worked as a coal miner for approximately 48 years. He last coal mined on December 26, 1980. In approximately 1985, decedent filed an application for adjustment of claim under the Act asserting that he suffered "an occupational disease arising out of and in the course of his employment." On November 2, 1995, the Commission found decedent disabled and awarded him benefits representing 12.5% loss of a man as a whole.

On November 25, 1992, the arbitrator issued a decision in which he found decedent suffered "simple coal workers' pneumoconiosis [CWP]." The arbitrator noted decedent's testimony that "[h]e stopped smoking in 1958. Prior to said time he smoked 1-1/2 packs of cigarettes a day for 25 years." Dr. Edward Campbell found "no impairment in pulmonary function." Dr. Parviz Sanjabi found pulmonary function "basically within the normal range." Dr. Susan Marshall found "no overall obstruction and the presence of borderline small airways obstruction." Dr. Marshall noted that "[t]hese small airways changes are most likely due to cigarette smoking in the past." Dr. William Houser found "evidence of *** mild obstructive impairment *** caused by working in a dusty environment for 28-1/2 years breathing coal and rock dust and caused by his previous cigarette smoking." The arbitrator found decedent disabled and awarded him benefits representing 12.5% loss of a man as a whole.

On November 23, 1993, the Commission affirmed and adopted the arbitrator's decision. On July 15, 1994, the circuit court of Franklin County "remanded to the *** Commission for further assessment of the damage to [decedent's] earning capacity caused by his occupational disease." On November 2, 1995, the Commission "reaffirm[ed] its prior conclusion" noting decedent retired approximately 15 years earlier and had not sought employment.

In the present case, decedent sought treatment at Pickneyville Community Hospital on April 16, 1995. He complained of "[c]ongestion for approximately [four] weeks." Decedent experienced "worsening dyspnea" and was transferred to Missouri Baptist Medical Center on April 21, 1995. Dr. Rhody Eisenstein noted in a discharge summary that decedent was treated for pneumonia and chronic obstructive pulmonary disease (COPD). In addition, a "chest computed tomography scan" suggested a mass and liver metastases. A "computed tomography scan guided needle biopsy of the left lung mass revealed adenocarcinoma." Decedent was not a "good candidate" for radiation or chemotherapy. He suffered a "far advanced malignancy." He was discharged on May 4, 1995, with arrangements for "home hospice care."

Decedent died on May 28, 1995. A death certificate identified the cause of death as "respiratory arrest due to or as a consequence of metastatic lung cancer."

On December 26, 1997, claimant filed an application for adjustment of claim under the Act asserting "[d]eath caused in whole or in part by inhalation of coal mine dust including but not limited to coal dust, rock dust, fumes [and] vapors."

Dr. William Houser testified on August 28, 2000, that he is a board certified pulmonary specialist. He had examined decedent on June 12, 1990. Dr. Houser reviewed medical records concerning decedent's diagnoses, treatment, and death at the request of claimant. He believed decedent suffered from emphysema, CWP, chronic bronchitis, and COPD. Although decedent smoked approximately "a pack a day for 16 years," Dr. Houser believed decedent's smoking was too remote to have been "a factor." Dr. Houser believed decedent quit smoking in approximately 1950. Dr. Houser opined that the various diagnoses were related to decedent's employment. Although Dr. Houser acknowledged that "[t]he general consensus is that exposure to coal mine dust is not associated with an increased risk of lung cancer," he believed that decedent's "obstructive pulmonary defect was a causative factor in his lung cancer and death."

Dr. Joseph Renn testified on May 10, 2001, that he is a physician board certified in internal medicine and pulmonary disease. Dr. Renn reviewed medical records concerning decedent's diagnoses, treatment, and death at the request of Freeman. Dr. Renn believed decedent's smoking history to be "significant enough to have resulted in a lung cancer and significant enough to have caused him to have the bullous emphysema and the chronic bronchitis."

Dr. Renn referenced multiple studies "done on coal miners and whether or not there is an increase in ...


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