Consolidation Coal Co. v. Industrial Commission

639 N.E.2d 886, 265 Ill. App. 3d 830, 203 Ill. Dec. 327, 1994 Ill. App. LEXIS 964
Appellate Court of Illinois·Decided June 21, 1994·No. No. 5-93-0401WC·Published·Cited by 5 cases

Opinion

JUSTICE SLATER

delivered the opinion of the court:

Claimant Charles R. Forbes filed an application for adjustment of claim pursuant to the Workers’ Occupational Diseases Act (the Act) (Ill. Rev. Stat. 1985, ch. 48, par. 172.36 et seq.). Following a hearing on February 16, 1989, the arbitrator found that claimant had developed an occupational disease which arose out of and in the course of his employment. Claimant was awarded benefits for permanent partial disability pursuant to section 8(d)(1) of the Workers’ Compensation Act (111. Rev. Stat. 1985, ch. 48, par. 138.8(d)(1)), as well as temporary total disability (TTD) benefits from March 31, 1986, through September 28, 1986, a total of 256/? weeks. The Industrial Commission (the Commission) affirmed the arbitrator’s decision. On review, the circuit court, the Honorable E. Dan Kimmel presiding, confirmed the Commission’s findings that claimant suffered an occupational disease arising out of and in the course of his employment, and it confirmed the award of TTD benefits. The court reversed, however, the Commission’s decision that claimant was permanently partially disabled from his usual and customary employment, finding that claimant could have returned to work in some capacity without endangering his health.

On appeal to this court, claimant contends: (1) that the circuit court erred in denying his motion to dismiss based on an improperly executed appeal bond; and (2) that the circuit court erred in reversing the Commission’s finding of permanent partial disability. The employer, Consolidation Coal Company, raises the following issues in its cross-appeal: (1) whether the Commission’s finding that claimant developed an occupational disease arising out of and in the course of his employment was against the manifest weight of the evidence; (2) whether the award of TTD benefits was against the manifest weight of the evidence; and (3) whether, assuming claimant was incapacitated from his usual and customary line of employment, the amount of the Commission’s wage differential award was against the manifest weight of the evidence.

Claimant was born on February 10, 1951, and was 38 years old at the time of arbitration. He had worked at Consolidation Coal Company (the employer) for almost 13 years. Claimant began working at employer’s Burning Star Mine Number 2 as a maintenance welder. He also did attendant work and occasionally acted as plant operator. Claimant next worked at employer’s Burning Star Mine Number 5 in various positions including welder, tipple attendant, tipple operator, drill helper, dozer operator, and crane operator. His last job duty was scraper operator, which involved the use of excavating equipment in strip mining. Dust conditions in this job assignment were described by claimant as "bad,” and on the claimant’s last shift, March 30, 1986, operations were shut down due to dust. On that day, claimant became very ill and felt as if he were going to faint. He sat in the cab of the scraper until the end of his shift.

Claimant testified that his health problems began in December of 1985 when what he thought was a common cold became worse, and he began losing weight. His family physician, Dr. Corder, treated him for a cold and bronchitis and prescribed antibiotics. When claimant’s condition did not improve, the antibiotic dosage was increased and a stronger antibiotic was used, but claimant did not respond to treatment. The day after he became ill at work, claimant went to Dr. Corder and explained what had happened. Again he was given a stronger antibiotic and was told to come back in three days if there was no improvement. Claimant’s situation worsened, and his symptoms of chest pain, cough, and sputum intensified. He also continued to lose weight, dropping from approximately 215 pounds in December of 1985 to approximately 170 pounds by April of 1986. Dr. Corder ordered a chest X ray and tomogram on April 2, 1986. Claimant was then sent to the cancer ward at Barnes Hospital for additional tests, including a bronchoscopy and lung biopsy. These tests revealed that claimant was suffering from blastomycosis, and he was given an antifungal medication called Ketoconazole to shrink the grapefruit-sized tumor in his lung. After spending two weeks at Barnes Hospital, claimant returned home and continued to take the Ketoconazole for another six months.

Claimant notified the employer of his illness in April of 1986, and he received benefits for six months, through September of 1986. On September 29, 1986, claimant voluntarily terminated his employment. At the time of his resignation, claimant had a seniority rank of 63 out of 350. He had been trained in every job capacity except for electrical and dragline work. According to claimant, no matter what job classification he held, there was never a time when he was not exposed to dust at some point in the day. Claimant admitted that he had not applied for a job reclassification or transfer prior to his resignation. He explained that although he could bid for a job reclassification, the terms of his contract required that there be a job vacancy and that the bidder have the highest seniority. Claimant testified that he could not bid for a job reassignment or transfer because he was "frozen” under the contract. Under the contract, an employee had one down bid or one sideways bid for the entire term of the contract; once such a bid is made the employee can only bid up. Claimant had made no bid up because there were no vacancies.

After leaving the employer, claimant worked as a car salesman for six to eight weeks. He also worked at a correctional center in Hillsboro, Illinois, and at Lincolnland Community College as a welding shop instructor. At the time of the arbitration hearing, claimant was employed at Johnson County Community College in Overland Park, Kansas, as a metal fob instructor. He had held this position for one year.

Claimant testified that his chest still bothers him as he has pain in the upper left lobe of his lung. He also complained of a greater susceptibility to chest colds and less endurance. According to claimant, the last cold he had lasted two months.

Kent Eden testified by way of evidence deposition on behalf of the employer. He had been the employer’s supervisor of industrial and employee relations for the past 10 years. In commenting on the dust conditions in positions held by claimant, Eden testified that claimant’s prior position of plant operator was in a "fairly clean environment.” According to Eden, claimant’s prior positions as welder or coal oiler would not expose him to dirt dust. Eden also testified that claimant’s past position of mobile crane operator does not create dust, although the crane does travel over different parts of the mine. Eden further testified that the employer had other positions which did not involve exposure to dirt dust, such as utility man, bath house attendant, plant welder, and silo attendant. According to Eden, claimant had never requested a transfer to a less dusty or dust-free environment.

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Consolidation Coal Co. v. Industrial Commission, 639 N.E.2d 886, 265 Ill. App. 3d 830, 203 Ill. Dec. 327, 1994 Ill. App. LEXIS 964 (Ill. Ct. App. 1994).

639 N.E.2d 886 (Consolidation Coal Co. v. Industrial Commission) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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