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Freeman United Coal Min. Co. v. Illinois Workers' Compensation Com'n

Court of Appeal of Illinois, Fifth District

October 28, 2013

FREEMAN UNITED COAL MINING COMPANY, Appellant,
v.
The ILLINOIS WORKERS' COMPENSATION COMMISSION et al. (David Sims, Appellee).

Page 383

Julie A. Webb and Kenneth F. Werts, both of Craig & Craig, LLC, of Mt. Vernon, for appellant.

Bruce R. Wissore, of Culley & Wissore, of Harrisburg, for appellee.

Page 384

Justice HUDSON delivered the judgment of the court, with opinion. Presiding Justice Holdridge and Justices Hoffman, Harris, and Stewart concurred in the judgment and opinion. Justice Hoffman specially concurred, with opinion, joined by Presiding Justice Holdridge and Justice Stewart.

OPINION

HUDSON, Justice.

[376 Ill.Dec. 501] ¶ 1 On December 19, 2007, claimant, David Sims, filed an application for adjustment of claim pursuant to the Workers' Occupational Diseases Act (Act) ( 820 ILCS 310/1 to 27 (West 2006)) seeking benefits from respondent, Freeman United Coal Mining Company. In his application, claimant alleged that as a result of inhaling coal-mine dust, he experiences shortness of breath and exercise intolerance. Following a hearing, the arbitrator denied benefits, finding that claimant failed to prove by a preponderance of the evidence that he suffers from an occupational disease which arose out of and in the course of his employment with respondent. The Illinois Workers' Compensation Commission (Commission) reversed, finding that claimant met his burden of proving he has coal workers' pneumoconiosis (CWP) and that the disease is causally connected to his employment as a coal miner. The Commission further determined that claimant established disablement within two years after the date of his last exposure to the hazards of the occupational disease (see 820 ILCS 310/1(f) (West 2006)) and that claimant provided timely notice of the disablement to respondent (see 820 ILCS 310/ 6(c) (West 2006)). The Commission awarded claimant 50 weeks of permanent partial disability (PPD) benefits, representing 10% of the person as a whole (see 820 ILCS 305/8(d)(2) (West 2006); 820 ILCS 310/7 (West 2006)). The circuit court of Christian County confirmed the decision of the Commission. On appeal, respondent contends that the Commission's findings are against the manifest weight of the evidence. In particular, respondent challenges the findings that claimant has an occupational disease, that he proved disablement within the statutory time frame, and that claimant is permanently partially disabled to the extent of 10% of the person as a whole. We affirm.

¶ 2 I. BACKGROUND

¶ 3 The following factual recitation is taken from the evidence presented at the arbitration hearing held on February 8, 2011. Claimant worked as an underground coal miner for approximately 31 years, beginning in 1977. During his career as a coal miner, claimant held a variety of positions, including those of laborer, roof bolter, miner operator, shuttle-car operator, and parts runner. In these positions, claimant was regularly exposed to various substances, including coal and rock dust, diesel fumes, and glue fumes. In the late 1990s, claimant noticed a change in his breathing while working in the coal mines, especially with heavy lifting and while walking long distances.

¶ 4 Claimant last worked for respondent on August 30, 2007, when he was laid off after the mine in which he worked was closed. At that time, claimant was 52 years old. Claimant testified that but for the mine closing, he would have reported to work for his next shift. Claimant retained his panel rights after being laid off, but was never recalled. At the end of 2007, claimant withdrew from the panel and began to draw a regular retirement pension.

¶ 5 At the time of the arbitration hearing, claimant continued to experience breathing problems. Claimant stated that he notices a change in his breathing after walking only about one block and that he has to stop after walking only three blocks. [376 Ill.Dec. 502]

Page 385

Claimant also stated that he can climb only about two flights of stairs before he notices changes in his breathing. Claimant testified that he smoked " occasionally" until 1996 or 1997, at which time he began to smoke half a pack of cigarettes per day. Since retiring from coal mining, claimant has worked at a small-engine repair shop he owns and as a part-time truck driver. Claimant testified that he has never held a job that did not involve manual labor and that he does not know how to type or use a computer.

¶ 6 Dr. Robert Cohen examined claimant on April 8, 2008. Dr. Cohen is a senior attending physician at Stroger Hospital of Cook County, the medical director of the hospital's pulmonary physiology and rehabilitation section, the medical director of the hospital's black lung clinic, and the medical director of the National Coalition of the Black Lung and Respiratory Disease Clinic. Dr. Cohen has been a B-reader since 1998. Dr. Cohen testified that claimant presented with complaints of dyspnea on exertion which interfered with activities such as lawn mowing, leaf raking, shoveling, and carrying timber. Claimant described these symptoms as being present for five years prior to the date he saw Dr. Cohen. Claimant also related that he was only able to walk about five blocks before becoming short of breath. In addition, claimant reported a cough with sputum production nearly every day for the last 10 years. According to the history given to Dr. Cohen, claimant started smoking at age 39 and had a 10-pack-year history of smoking. Claimant denied taking any breathing medication.

¶ 7 Upon physical examination, Dr. Cohen noted a few inspiratory rhonchi that were heard over the right lower lobe which did not clear upon coughing. Dr. Cohen attributed the inspiratory rhonchi to scarring of the lungs. Dr. Cohen administered resting and exercise pulmonary function testing. The resting pulmonary function testing was normal with the exception of a mild diffusion impairment. The resting arterial gases were normal. Dr. Cohen testified that the cardiopulmonary exercise test was a maximal test as indicated by the fact that claimant had some acidosis at peak exercise. The work capacity was " low normal" at 84% of claimant's reference value adjusted for body weight. Claimant had a high breathing reserve with a normal breathing frequency, and the indices of gas were normal. Claimant did not have a ventilatory limit to exercise. Dr. Cohen read a quality two chest X ray dated March 28, 2008, as positive for pneumoconiosis, category 1/0, with q/r-shaped opacities in all lung zones. Dr. Cohen made an identical interpretation on a chest X ray dated October 3, 2007.

¶ 8 Dr. Cohen testified that based on his evaluation of claimant, and within a reasonable degree of medical certainty, claimant has CWP which was caused by his 31 years of exposure to coal-mine dust. Dr. Cohen also diagnosed chronic bronchitis caused by claimant's exposure to coal-mine dust and his tobacco use. Dr. Cohen opined that, based on the diagnosis of CWP, claimant could not have any further exposure to coal-mine dust without endangering his health. Further, Dr. Cohen advised claimant not to work in any job where he will be exposed to pulmonary toxins, such as coal-mine dust or any other smoke, dust, or fumes.

¶ 9 On cross-examination, Dr. Cohen testified that he examined claimant on one occasion and that he did not review any of claimant's treatment records. Dr. Cohen admitted that claimant did not present to him with a past history of black lung and that claimant never represented that he left coal mining due to breathing problems or upon the advice of a physician. Dr. [376 Ill.Dec. 503]

Page 386

Cohen also stated that he would not have diagnosed claimant with black lung absent the positive reading of his films. Dr. Cohen acknowledged that exertional dyspnea can be due to many causes, including deconditioning and cardiac pulmonary anxiety. He further acknowledged that smoking can be associated with cough, sputum, and shortness of breath. He also noted that smoking is associated with a reduction in diffusing capacity when it causes lung disease. Dr. Cohen could not say that the results from testing on claimant were reduced from what they were 30 years prior.

¶ 10 Dr. Henry Smith, a board-certified radiologist and certified B-reader, interpreted a chest X ray of August 17, 2006, as positive for pneumoconiosis, category 1/0, with p/s opacities in the mid- to lower-lung zones. Dr. Smith interpreted the chest X ray of October 3, 2007, ...


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