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Dawson v. Workers' Compensation Commission

April 15, 2008

LARRY DAWSON, APPELLANT,
v.
WORKERS' COMPENSATION COMMISSION ET AL. (ALEXI GIANNOULIAS, 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. 06MR62 Honorable Barry L. Vaughan, Judge, presiding.

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

Motion to publish granted

May 8, 2008.

Workers' Compensation Commission Division

On November 21, 2000, claimant, Larry Dawson, filed an application for adjustment of claim pursuant to the Workers' Occupational Diseases Act (820 ILCS 310/1 through 27 (West 1998)), seeking benefits from employer, Freeman United Coal Mining Company. After a hearing, the arbitrator found claimant suffered coal worker's pneumoconiosis (CWP) caused by his exposure to coal dust and awarded claimant permanent partial disability (PPD) benefits in the sum of $421.59 per week for a period of 50 weeks, representing 10% loss of a man as a whole (820 ILCS 305/8(d)(2) (West 1998)). See 820 ILCS 310/7 (West 1998). The arbitrator denied claimant wage-differential benefits under section 8(d)(1) of the Workers' Compensation Act (820 ILCS 305/8(d)(1) (West 1998)), finding insufficient evidence to establish that claimant was not employable as a coal miner. On review, the Industrial Commission (Commission)*fn1 affirmed and adopted the arbitrator's decision. The circuit court confirmed the Commission's decision, and this appeal followed.

The following factual recitation is taken from the evidence presented at the arbitration hearing on October 4, 2004.

The 60-year-old claimant worked as a coal miner for approximately 26 years, during which time he was exposed to coal dust. Claimant testified that he last coal-mined on March 8, 1997, when employer closed the mine in Waltonville, Illinois, and laid claimant off from work. Claimant sought recall only for the Waltonville mine, identifying multiple positions he would perform, including laborer.

At the arbitration hearing, claimant testified that he limited his recall to the Waltonville mine because "in 26 years, I had breathed all the dust I really wanted to, and [if] I notified another panel, I would have to relocate, and my age and things, I just - I didn't want to do that, didn't want to breathe the dust. I had enough dust." Claimant did not seek medical treatment for breathing problems while employed as a miner.

Later, claimant testified that if he had not been laid off, he would have continued to work for employer. He had not thought about retirement: "I had a good job, you know."

Claimant was not returned to work and when he turned 55 years old (November 25, 1998), claimant retired and was no longer eligible for recall.

Claimant testified that "[a]while after the layoff," he began a course in heating and air conditioning at John A. Logan College. He spent two years there but did not complete the program. It was a government program. He stopped attending after the government stopped paying for his education. Claimant next worked for True Value Hardware, where he stocked shelves and unloaded trucks. His next job was with his current employer, Wal-Mart, where he works in maintenance. Claimant could not remember when he began working for Wal-Mart, "around 2000." No doctor advised claimant that he should retire for medical reasons or seek alternative employment.

Before mining, claimant maintained heavy equipment while in the service. After the service, he worked approximately two years on an assembly line and also assembled radiators for approximately two years. Claimant began working for employer in December 1970. He began as a laborer, became a shuttle car operator, a repairman, and finally a mine examiner. As a mine examiner, claimant walked approximately five miles in four hours on rough terrain, and while carrying equipment weighing approximately 20 pounds. Claimant testified that he began to experience breathing problems when he worked as a shuttle car operator, in approximately 1973 or 1974. His breathing worsened over time and did not improve after he retired. Claimant testified at the arbitration hearing that he was able to walk about one quarter mile, "however far that is," and climb two flights of stairs before experiencing breathlessness.

Claimant smoked for three or four years while in the service, beginning when he was 17 years old. During that time, he smoked approximately a 1/2 pack of cigarettes per day. Claimant testified that his physician had prescribed a Combivent inhaler for breathing approximately one year earlier.

Claimant's W-2 form from 2002 indicated an income of $12,098.46. Claimant's W-2 form from 2003 ...


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