Forsythe v. Industrial Commission

636 N.E.2d 56, 263 Ill. App. 3d 463, 200 Ill. Dec. 865, 1994 Ill. App. LEXIS 933
CourtAppellate Court of Illinois
DecidedJune 16, 1994
Docket5-93-0135 WC
StatusPublished
Cited by5 cases

This text of 636 N.E.2d 56 (Forsythe v. Industrial 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
Forsythe v. Industrial Commission, 636 N.E.2d 56, 263 Ill. App. 3d 463, 200 Ill. Dec. 865, 1994 Ill. App. LEXIS 933 (Ill. Ct. App. 1994).

Opinion

JUSTICE SLATER

delivered the opinion of the court:

Claimant, Robert Forsythe, filed an application for adjustment of claim pursuant to the Workers’ Occupational Diseases Act (the Act) (Ill. Rev. Stat. 1981, ch. 48, par. 172.36 et seq.) on September 27, 1982. The arbitrator found that claimant was permanently partially disabled to the extent of 171/2% as a result of pneumoconiosis. Both claimant and his employer, Freeman United Coal Mining Company, filed petitions for review. The Industrial Commission (the Commission) reversed the decision of the arbitrator, finding that claimant failed to prove that he sustained disablement due to an occupational disease within the statutory two-year period under section 1(f) of the Act (Ill. Rev. Stat. 1981, ch. 48, par. 172.36(f)). Claimant appealed the decision of the Commission to the circuit court as case number 90— MR — 31. Judge John Lundmark reversed the Commission and found, inter alia, that the Commission’s finding that claimant had failed to prove that disablement occurred within two years of the date of last exposure to the hazards of an occupational disease was against the manifest weight of the evidence. The court also found that a claim based on coal workers’ pneumoconiosis was not barred by section 1(f) but was instead subject to the five-year limitations provision contained in section 6(c) of the Act (Ill. Rev. Stat. 1981, ch. 48, par. 172.41(c)). The court remanded the cause to the Commission to determine the amount of disability, if any, attributable to pneumoconiosis. On remand, the Commission found that claimant had sustained permanent partial disability to the extent of 25% as a result of pneumoconiosis. Both claimant and the employer appealed the Commission’s decision to the circuit court as case number 92— MR — 19. Judge Robert Hill reversed the Commission’s decision and found that claimant had failed to prove any disability due to an occupational disease. The employer now appeals from the order which Judge Lundmark rendered in case number 90 — MR—31 which reversed the Commission’s initial decision. Claimant appeals from the order of Judge Hill in case number 92 — MR—19 which reversed' the Commission’s decision after remandment. These appeals were consolidated by this court. The issues presented by the employer on appeal are: (1) whether the circuit court erred in reversing the Commission’s finding that section 1(f) of the Act applied to a claim based on pneumoconiosis; and (2) whether the court’s reversal of the Commission’s determination that the claimant failed to prove disablement within two years pursuant to section 1(f) of the Act was erroneous. The issues presented by the claimant on appeal are: (1) whether the circuit court erred in reversing the Commission’s decision after remandment which had awarded the claimant permanent partial disability to the extent of 25%; and (2) whether the circuit court’s order was contrary to the doctrine of "law of the case.”

Claimant was born on November 10, 1909. Claimant was 78 years old at the time of arbitration, and he was 68 on November 12, 1977, his last day of work. Claimant began working as a coal miner in 1947 at Freeman’s No. 3 mine where he worked as a laborer, truck driver, and road builder. During this time he was exposed to rock dust. In 1951 he was transferred to a job where he ran a tripper belt filling silos with coal. The coal would fall off a tripper onto a track and into the silos making an updraft of dust. Claimant was also required to sweep and clean up the floors. In addition, he had to unplug the feeders at the bottom of the silo by using a crow bar and hammer to free the jam. This was very dusty work, and while he tried to wear a respirator, the device made it difficult to breathe. In 1957 claimant became a portal attendant in charge of a console board which operated a number of pieces of equipment. A slope belt brought the coal out from the bottom of the mine onto an apron feeder and then to a shaker and a tiler feeder where the coal was screened. This process created quite a bit of dust.

Beginning in 1972 or 1973, claimant experienced shortness of breath when exerting himself or climbing stairs while at work. On November 12, 1977, claimant had a heart attack while at work. Before the heart attack, claimant had never experienced chest pains, and his only problem was shortness of breath. Claimant has not worked since his heart attack. In 1978 or 1979, claimant was hospitalized for shortness of breath and dizziness. He was again hospitalized in 1983 with an aneurysm in his abdomen. Presently, claimant does not engage in physical activity and can only walk about one block before becoming short of breath.

Claimant smoked one-half of a pack of cigarettes a day for about 30 years. He quit after he had the heart attack. Claimant’s personal physician is Dr. Khan, whom he began seeing following the heart attack.

Thomas J. Smith worked at Freeman’s No. 3 mine for approximately 35 years. For three years Smith worked in a position where he was able to observe claimant in his job as portal attendant. According to Smith, the jobsite was dusty due to the coal being poured over the shakers. Smith observed claimant become short of breath while going up and down stairs.

Dr. Saeed Khan testified on behalf of claimant. Dr. Khan is board certified in internal medicine, and his practice consists of internal medicine, cardiology, and pulmonary disease. Dr. Khan began seeing the claimant after his heart attack in November of 1977. He sees claimant every two to three months. Dr. Khan noted that claimant has bilateral dry crepitations and wheezing in his lungs. An X ray taken in March of 1986 revealed bilateral pulmonary fibrosis, which Dr. Kahn described as scarring due to occupational disease. Arterial blood gas studies showed diminished levels of P02 and PC02, which is consistent with black lung disease and chronic bronchitis. Claimant’s bronchitis was likely due to smoking. Pulmonary function studies done in March of 1986 were abnormal and could be consistent with pneumoconiosis. Claimant told Dr. Kahn that he had been experiencing slight shortness of breath and a productive cough for several years prior to 1977.

In Dr. Kahn’s opinion, claimant has pneumoconiosis, heart disease, and cor pulmonale, which is congestive heart failure secondary to pneumoconiosis, making him totally disabled. Claimant was initially unable to return to work due to his heart attack, although he later experienced increased shortness of breath. By 1981, claimant had developed symptoms of congestive heart failure and cor pulmonale. Claimant’s symptoms of cor pulmonale were swelling of the feet, increased shortness of breath, rapid heart rate, and increased cough. Although breathlessness on exertion can develop after a heart attack, Dr. Kahn stated that this occurs if the patient goes into heart failure after the heart attack, which was not the case with claimant.

Due to claimant’s age, heart condition and lung disease, Dr. Khan concluded that it was unlikely that claimant could be employed. In Dr. Khan’s opinion, 50% of claimant’s impairment was due to heart disease and 50% was due to pneumoconiosis. Coal workers’ pneumoconiosis is a contributing factor in both claimant’s lung disease and his cor pulmonale. Continued exposure to coal dust would aggravate these conditions.

Dr. James Vest is a pulmonary physician who is board certified in both pulmonary and internal medicine. Dr. Vest examined claimant on April 19, 1984.

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Related

Docksteiner v. Industrial Commission
806 N.E.2d 230 (Appellate Court of Illinois, 2004)
Freeman United Coal Mining Co. v. Industrial Commission
677 N.E.2d 1005 (Appellate Court of Illinois, 1997)
SEDOL Teachers Union v. Illinois Educational Labor Relations Board
658 N.E.2d 1364 (Appellate Court of Illinois, 1995)

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Bluebook (online)
636 N.E.2d 56, 263 Ill. App. 3d 463, 200 Ill. Dec. 865, 1994 Ill. App. LEXIS 933, Counsel Stack Legal Research, https://law.counselstack.com/opinion/forsythe-v-industrial-commission-illappct-1994.