Dawson v. Illinois Workers' Compensation Commission

888 N.E.2d 135, 382 Ill. App. 3d 581, 320 Ill. Dec. 918, 2008 Ill. App. LEXIS 699
CourtAppellate Court of Illinois
DecidedApril 15, 2008
Docket5-07-0339WC
StatusPublished
Cited by9 cases

This text of 888 N.E.2d 135 (Dawson v. Illinois Workers' Compensation Commission) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dawson v. Illinois Workers' Compensation Commission, 888 N.E.2d 135, 382 Ill. App. 3d 581, 320 Ill. Dec. 918, 2008 Ill. App. LEXIS 699 (Ill. Ct. App. 2008).

Opinion

PRESIDING JUSTICE McCULLOUGH

delivered the opinion of the court:

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) 1 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 half 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 indicated an income of $14,321.75.

James Hess testified that he was the southern properties manager for employer. He had worked for employer for more than 27 years. Hess testified that if claimant had not limited his recall to the Walton-ville mine, he would have been recalled to the mines south of Springfield, Illinois. If claimant had a “black lung letter,” he would have been moved to a less dusty environment. Hess saw claimant most every day at the Waltonville mine and claimant never complained about breathing problems.

Dr. Parviz Sanjabi examined claimant on February 13, 2001, at the request of his attorneys. Dr. Sanjabi is affiliated with the Carbondale Clinic, Memorial Hospital, and Herrin Hospital. Since 1975, Dr. Sanjabi has worked with the Shawnee Health Development Program, which handles grants to black lung clinics. Dr. Sanjabi is not a radiologist or B-reader.

Dr. Sanjabi noted that claimant experienced a mild degree of breathlessness on exertion; he would get breathless upon carrying 50 pounds for 50 yards, which Dr. Sanjabi did not find “uncommon.” Claimant’s spirometry was normal but he had a borderline variance in his oxygen saturation. Dr. Sanjabi interpreted claimant’s chest X-ray as compatible with CWP. According to Dr. Sanjabi, additional dust exposure would risk claimant’s health. Dr. Sanjabi also stated that claimant’s CWP would have been present when claimant was last exposed to coal mine dust.

On cross-examination, Dr. Sanjabi agreed that he is not board certified in pulmonary medicine or occupational disease, and he is not a radiologist or B-reader. Based on his testing, claimant could perform heavy manual labor. Claimant had normal pulmonary function. Claimant did not have a progressive disease. Dr. Sanjabi agreed that claimant’s dyspnea was not significant.

Radiologist/B-reader Dr. Michael Alexander found small round opacities bilaterally in claimant’s chest X-ray dated October 16, 2000, rating it positive for CWR category 1/0.

Dr. Jeff Selby examined claimant on August 7, 2003, at employer’s request. Dr. Selby is board certified in internal medicine and pulmonology. He has also been a B-reader since 1985. Dr. Selby testified that claimant’s physical exam was normal. Claimant’s chest X-ray was “completely negative for coal worker’s pneumoconiosis or any other significant abnormality.” He found no evidence of any pulmonary function abnormality on pulmonary function testing. Based on his testing, claimant could perform heavy manual labor.

Radiologist/B-reader Dr. Jerome Wiot reviewed the chest X-ray dated October 16, 2000, finding no evidence of CWE

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Bluebook (online)
888 N.E.2d 135, 382 Ill. App. 3d 581, 320 Ill. Dec. 918, 2008 Ill. App. LEXIS 699, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dawson-v-illinois-workers-compensation-commission-illappct-2008.