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Workers' Compensation Commission Division William Gross v. Illinois Workers' Compensation Commission et al.

October 6, 2011

WORKERS' COMPENSATION COMMISSION DIVISION WILLIAM GROSS,
APPELLANT,
v.
ILLINOIS WORKERS' COMPENSATION COMMISSION ET AL.
(FREEMAN UNITED COAL MINING COMPANY) APPELLEES.



Appeal from the Circuit Court of Sangamon County. No. 09-MR-901 Honorable Peter C. Cavanagh, Judge, presiding.

The opinion of the court was delivered by: Justice Stewart

JUSTICE STEWART delivered the judgment of the court, with opinion.

Justices Hoffman, Hudson, and Holdridge concurred in the judgment and opinion. Presiding Justice McCullough dissented, with opinion.

OPINION

¶ 1 This is an appeal of the denial of a claim for benefits under the Workers' Occupational Diseases Act (Occupational Diseases Act) (820 ILCS 310/1 et seq. (West 2008)). The arbitrator determined that the claimant, William Gross, was not exposed to an occupational disease that arose out of and in the course of his employment with Freeman United Coal Mining Company (the employer). The Illinois Workers' Compensation Commission (Commission) affirmed and adopted the arbitrator's decision, and the circuit court of Sangamon County confirmed the Commission's decision. The claimant appeals, arguing that the Commission's decision that his condition of chronic obstructive pulmonary disease (COPD) did not arise out of and in the course of his employment is against the manifest weight of the evidence. We reverse.

¶ 2 BACKGROUND

¶ 3 Although the claimant originally asserted potential claims for coal workers' pneumoconiosis (CWP) and histoplasmosis, he has abandoned those claims in this appeal and has limited our review to his claim for COPD. Accordingly, our statement of facts will include only the evidence pertinent to the issue on appeal.

¶ 4 The claimant, who was 64 years old, filed an application for adjustment of claim on December 5, 2005, alleging that he had been injured by the "[i]nhalation of coal mine dust including but not limited to coal dust, rock dust, fumes and vapors for a period in excess of 39 years." He alleged that his lungs and/or heart were affected and that he suffered from shortness of breath and exercise intolerance. He began working in the coal mines in 1965 at the employer's Fidelity Mine. The claimant worked at the Fidelity Mine until late 1991, when he was laid off. He was recalled to the employer's Industry Mine in March 1992. He worked at the Industry Mine until he was laid off on November 7, 2003, when the Industry Mine closed. The claimant retired in February 2004. Both the Fidelity Mine and the Industry Mine were aboveground coal mines. While working for the employer, the claimant worked as a car rider, driller, wheel oiler, ground man, in the "prep plant," and finally, as an electrician for the final 30 years of his career. In his work as an electrician, he worked in all areas of the mine, including "out in the pit" in order to work on the generators and other electrical equipment. He frequently changed the filters in the electrical room due to the heavy dust.

¶ 5 The claimant testified that he first noticed a change in his breathing around 1999 when working at the Industry Mine. He explained that his work required him to climb up to nine flights of stairs while carrying 20 to 25 pounds of tools. He stated that he had to stop and rest at least twice if climbing to the top of the plant. He testified that there was often so much coal dust blowing around in the area where the coal was loaded that he could not see. On February 1, 2004, the claimant officially retired. He testified that he did not want to retire until he was 65, but he retired when he was 62 because he realized that the employer was not going to call him back to work. At the arbitration hearing on September 23, 2008, he thought he could walk a "mile or more" on level ground on one of his good days. On one of his bad days, he would have to force himself to walk that far. He testified that from 1999, when he first noticed his breathing problems, until the arbitration hearing in 2008, his breathing had become "somewhat worse," "not real bad, but worse." By 2008, on his bad days, his breathing bothered him when he did household chores like the laundry or taking out the trash. He did not climb stairs unless he had to, and he rarely played golf. He explained that he used to walk 18 holes of golf, but could no longer walk 9 holes of golf.

¶ 6 The claimant testified that he had non-insulin-dependent diabetes and had had two previous open heart surgeries. His treating physicians had encouraged him to walk, but he did not walk very often. Instead, he occasionally swam in his daughter's pool. He was not taking any breathing medications at the time of the arbitration hearing. He stated that he smoked approximately one pack of cigarettes per day from 1959 until he quit in 1999. He explained that he quit a couple of times during those years, one time for up to two years, but he did not finally quit smoking permanently until 1999. He had never had a job that did not involve manual labor. He testified that he was no longer physically able do any of his former mining jobs. He had not worked for any employer since he retired and had, had not been hospitalized since 2003.

¶ 7 The parties submitted, as joint exhibits, the claimant's medical records from Marshall Browning Hospital, McDonough District Hospital, Prairie Cardiovascular Consultants, Memorial Medical Center, and Limoine Valley Clinic. Additionally, the claimant submitted the deposition and written report of his expert witness, Dr. William C. Houser. The employer submitted the deposition and written report of its expert witness, Dr. Joseph J. Renn III. Although both parties submitted additional expert testimony pertinent to the claim for CWP, and Dr. Houser and Dr. Renn also testified about CWP, we focus only on the testimony on the claim for COPD.

¶ 8 Dr. Houser, a pulmonary specialist and the medical director of the Deaconess Hospital Black Lung Clinic, examined the claimant at his attorney's request. Dr. Houser is board certified in pulmonary diseases. Dr. Houser examined the claimant on January 10, 2006. His evaluation included documenting the claimant's history with an emphasis on his respiratory symptoms. He reviewed the claimant's smoking history, past and current medications, medical history, drug allergies, family history, and his occupational history. He also performed a complete physical examination. He did not review any of the claimant's treatment records and was not aware of the status of the claimant's lung function before his January 10, 2006, examination.

¶ 9 The claimant had been retired for almost two years when Dr. Houser examined him. The claimant told Dr. Houser that he had been short of breath for about a year before meeting with him, but he did not tell Dr. Houser that he had any difficulty performing his last coal mining job. Dr. Houser stated that deconditioning, heart disease, and significant tobacco use can all cause exertional dyspnea or shortness of breath during exercise. He noted that significant tobacco use is also associated with "arteriosclerotic heart disease," another of the claimant's conditions. Although the claimant experienced shortness of breath, Dr. Houser characterized him as "fairly active." Dr. Houser understood that the claimant was retired and that he did not leave work due to any health concerns or on the advice of a physician.

ΒΆ 10 Dr. Houser's physical examination of the claimant's chest produced no abnormal findings. He performed pulmonary function tests for which he believed the claimant provided "good efforts" and for which he obtained "reproducible results." Those tests indicated "mild airway obstruction" with some, although not significant, "improvement with bronchodilator administration." He testified that the inhalation of coal mine dust over a period of 39 ...


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