Freeman United Coal Mining Co. v. Industrial Commission

670 N.E.2d 1122, 283 Ill. App. 3d 785, 219 Ill. Dec. 234, 1996 Ill. App. LEXIS 622
CourtAppellate Court of Illinois
DecidedAugust 15, 1996
Docket5-95-0392WC
StatusPublished
Cited by15 cases

This text of 670 N.E.2d 1122 (Freeman United Coal Mining Co. 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
Freeman United Coal Mining Co. v. Industrial Commission, 670 N.E.2d 1122, 283 Ill. App. 3d 785, 219 Ill. Dec. 234, 1996 Ill. App. LEXIS 622 (Ill. Ct. App. 1996).

Opinions

JUSTICE RAKOWSKI

delivered the opinion of the court:

On July 22, 1986, claimant, Louis Selmo, filed an application for adjustment of claim pursuant to the "Workers’ Occupational Diseases Act (the Diseases Act) (820 ILCS 310/1 et seq. (West 1994)) for injuries he sustained during his employment with Freeman United Coal Mining Company (employer). The arbitrator awarded claimant 15% permanent partial disability to the person as a whole as a result of coal workers’ pneumoconiosis (CWP). The Industrial Commission (the Commission) affirmed. On administrative review, the circuit court of Williamson County (Judge Murphy) remanded the case back to the Commission for reconsideration. On remand, the Commission increased the award to 20% of the person as a whole. The circuit court of Franklin County (Judge Jordan) confirmed this increase. Employer now appeals. For the following reasons, we reverse the decision of the circuit court of Williamson County.

I. FACTS

Claimant last worked for employer on March 29, 1988, at which time he retired from 34 years of coal mining employment. He was exposed to coal dust on a daily basis throughout these 34 years.

Claimant testified he was 61 years old when he retired and he retired only because of breathing and health problems from the coal dust. He would have continued to work had it not been for his breathing condition, which caused him difficulties while walking his examiner route. He first began experiencing breathing problems in 1974, and they worsened over time. Since his retirement, his problems have remained the same and limit his activities. He can walk one block or climb one flight of stairs before experiencing shortness of breath. The problems interfere with his bird hunting and limit his ability to work in his garden and around his home. After he retired, claimant held an elected position as a public health and safety commissioner in Zeigler for which he received $50 per month.

Dr. Saeed Khan examined claimant on November 4, 1988, at the request of claimant’s counsel. Based upon his examination and testing, Dr. Khan diagnosed claimant as suffering from CWP and pulmonary emphysema. He concluded that claimant suffered from a significant pulmonary impairment caused by CWP and pulmonary emphysema. According to Dr. Khan, "due to his abnormal chest X[ ] ray, abnormal pulmonary function test, and markedly abnormal arterial blood gases, he is not suitable to perform his coal miner[’]s job underground due to further deterioration of his breathing problems” and "further exposure to coal dust will be injurious to his health.”

Dr. Jeffrey Selby examined claimant on June 2, 1989, at the request of employer. Dr. Selby concluded that claimant had X-ray evidence of simple CWP but that he suffered from no impairment due to CWP. Claimant did have significant impairment from marked morbid obesity and some degree of asthma. Dr. Selby found no causation between claimant’s complaints and his employment.

Dr. Darryl Sugar examined claimant on December 19, 1984, at the request of employer. Dr. Sugar concluded that claimant did not suffer from CWP or any pulmonary function disability causally related to exposure to coal dust. Any symptoms claimant experienced were due to his obesity. Dr. Sugar stated that claimant could continue his employment as a coal miner without risk to his pulmonary condition. Dr. Sugar admitted that his opinion was only correct as of the date of his examination, which was four years prior to claimant’s retirement.

II. ANALYSIS

At the outset, we note that the trial court’s remand order does not specify that the Commission’s 15% award is against the manifest weight of the evidence. The order simply states:

"The Court *** finds that the Industrial Commission should reconsider this cause in light of Zeigler Coal Co. v. Industrial Comm’n, 237 Ill. App. 3d 213 (5th Dist. 1992) and Monterey Coal Co. v. Industrial Comm’n, 241 Ill. App. 3d 386 (4th Dist. 1992), and IT IS, THEREFORE, ORDERED, that the Decision of the Industrial Commission is remanded to the Industrial Commission for reconsideration consistent with my Letter Opinion of September 8, 1993, attached hereto.”

The judge’s September 8, 1993, letter states:

"I am persuaded by the briefs in each of the above cases that each should be remanded to the [C]ommission and that the [C]om-mission should reconsider each case in light of the Zeigler and Monterey Cases. If the arbitrator has found and the Commission concurred that disability is caused in part by coal miners[’] pneumoconiosis and if there is medical evidence of record to justify not returning to work, then the amount that earning capacity has been reduced needs to be reviewed in light of the cases cited.”

A. PROPRIETY OF REMAND

According to claimant:

"[The Diseases Act] defines disablement alternatively as either 'an impairment or partial impairment, temporary or permanent in the function of the body or any of the members of the body, or the event of becoming disabled from earning full wages at the work in which the employee was [last] engaged.....’ [Citation.] The case law interpreting the Act also holds that an employee is disabled if his continued work would harm his health. [Citations.] These cases reflect the fact that '... the award of compensation is not for the disability as such, but for the impaired earning capacity which results from th[e] disability.’ E.R. Moore Co. v. Industrial Comm[’n], [71 Ill. 2d 353, 376,] 376 N.E.2d [206,] 210 [(1978)].” (Emphasis in original.)

Claimant states that because the Commission ignored one element of damages — loss of earning capacity — the circuit court had authority to remand.

Although we agree with claimant’s statement that the Diseases Act defines disablement alternatively, as either a functional disability or as a loss of earning capacity (820 ILCS 310/1(e) (West 1994)), we do not agree that this provision defines or provides for compensation.

Two distinct analyses, relevant here, are involved when an employee seeks compensation under the Diseases Act. First, is he or she disabled? Second, how is he or she compensated once disability is proven? As to the first inquiry, section 1(e) of the Diseases Act defines two ways in which an employee may become disabled. He or she may suffer a purely functional disability or suffer an impairment which results in a loss of earning capacity. 820 ILCS 310/1(e) (West 1994). Under this definition, an employee may incur a job-related functional disability yet still perform his or her usual job. Although there is no loss of earning capacity, the employee is disabled pursuant to section 1(e). On the other hand, when an employee suffers a loss of earning capacity, he necessarily suffers from some impairment because he is precluded from performing his job functions. In either event, section 1(e) only deals with how or why an employee is disabled; it does not address compensation.

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Freeman United Coal Mining Co. v. Industrial Commission
670 N.E.2d 1122 (Appellate Court of Illinois, 1996)

Cite This Page — Counsel Stack

Bluebook (online)
670 N.E.2d 1122, 283 Ill. App. 3d 785, 219 Ill. Dec. 234, 1996 Ill. App. LEXIS 622, Counsel Stack Legal Research, https://law.counselstack.com/opinion/freeman-united-coal-mining-co-v-industrial-commission-illappct-1996.