Hicks v. Industrial Commission

621 N.E.2d 293, 251 Ill. App. 3d 320, 190 Ill. Dec. 424, 1993 Ill. App. LEXIS 1556
CourtAppellate Court of Illinois
DecidedOctober 5, 1993
Docket5-92-0178WC
StatusPublished
Cited by9 cases

This text of 621 N.E.2d 293 (Hicks 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
Hicks v. Industrial Commission, 621 N.E.2d 293, 251 Ill. App. 3d 320, 190 Ill. Dec. 424, 1993 Ill. App. LEXIS 1556 (Ill. Ct. App. 1993).

Opinions

PRESIDING JUSTICE McCULLOUGH

delivered the opinion of the court:

Claimant, William Hicks, sought compensation pursuant to the Illinois Workers’ Occupational Diseases Act (Act) (Ill. Rev. Stat. 1989, ch. 48, par. 172.36 et seq.) for impairment of his heart and lungs resulting from the inhalation of coal and rock dust. An arbitration hearing was held on September 12, 1989. Hicks testified that he was 59 years old when he left Zeigler Coal Company on January 31, 1981. He had been a miner since 1941, with the exception of a 3x/2-year tour of duty in the Air Force. While in the Air Force, Hicks obtained his general equivalency diploma (GED). Hicks began experiencing respiratory problems in 1976 or 1977. He experienced. shortness of breath upon exertion and had to stop and rest. Sometime in 1980, Hicks sustained a back and knee injury when he fell from a walkway. He left Zeigler in January 1981 because his back, knee, and breathing problems rendered him unable to perform his duties. Hicks subsequently applied for and received social security disability benefits.

Dr. William Charles Houser testified that on July 18, 1984, he examined a chest X ray of Hicks dated June 7, 1982, which revealed a category 1/2 pneumoconiosis. Houser examined Hicks again on April 26, 1988. A chest X ray taken at that time revealed a category 1/0 pneumoconiosis. Houser attributed the difference in ratings to either variations in the technique of the film or the method in which the X rays were taken. Houser’s examination also revealed that Hicks had a 10- to 12-year history of shortness of breath on exertion or activity and a cough with sputum on a daily basis. Hicks’ pulmonary function studies were normal. Based on his examination, Houser concluded that Hicks was suffering from coal miners’ pneumoconiosis caused by his employment and agreed that further exposure would cause progression of the disease and would be injurious to Hicks’ health.

On January 26, 1986, Hicks was examined by Dr. Parviz Sanjabi. Hicks’ history revealed that he had been suffering from a shortness of breath, which occurred after exertion or walking a block or two and which had been occurring for the past several years and getting progressively worse. Dr. Sanjabi also reviewed one of Hicks’ X rays. Based on the data, Dr. Sanjabi concluded that Hicks was suffering from simple pneumoconiosis caused by exposure to coal dust. Although Hicks’ pulmonary function was normal, Dr. Sanjabi indicated that normal pulmonary function was expected with simple pneumoconiosis. Dr. Sanjabi advised against further exposure to coal dust.

Two of Hicks’ X rays were examined by Dr. T.R. Marshall, a board-certified radiologist and B-reader. Dr. Marshall testified that both disclosed that Hicks was suffering from the middle stages of simple pneumoconiosis.

Hicks’ X rays were reviewed by Dr. Barton Bridges and Dr. Peter Tuteur at Zeigler’s request. Dr. Bridges, a radiologist and B-reader, testified that his review of Hicks’ X rays revealed no evidence of parenchymal abnormalities consistent with pneumoconiosis but did show some pleural changes which could be compatible with pneumoconiosis. Dr. Bridges agreed that he could not rule out pneumoconiosis. Dr. Tuteur, who is board certified in internal and pulmonary medicine, testified that while Hicks’ exposure was sufficient to produce pneumoconiosis in a susceptible host, his X.rays showed no signs of an interstitial process consistent with pneumoconiosis. His pulmonary function study and blood gas tests were both normal. Dr. Tuteur found that Hicks had mild chronic bronchitis which could have been caused by exposure to coal dust.

The arbitrator found that claimant suffered from pneumoconiosis as a result of his coal mining employment and made a finding of total and permanent disability. Zeigler sought review before the Industrial Commission (Commission), arguing for the first time that claimant failed to prove disablement within the time period required by section 1(f) of the Act (Ill. Rev. Stat. 1989, ch. 48, par. 172.36(f)). The Commission rejected Zeigler’s argument but reduced claimant’s award to permanent disablement to the extent of 15% man as a whole. The Commission ruled that because claimant failed to establish the unavailability of work, total disablement was not proved. Both parties then appealed to the circuit court, which ruled that claimant’s claim was barred by section 1(f).

On appeal, Hicks first argues that the circuit court erred in ruling that his claim was barred by section 1(f). Specifically, he contends that Zeigler waived its section 1(f) argument by failing to assert it before the arbitrator. The record discloses that Zeigler raised this argument before the Commission. While noting that compliance with section 1(f) is a statutory condition precedent to recovery, the Commission did not specifically rule on whether Zeigler’s section 1(f) argument was waived for failure to assert it before the arbitrator, instead finding that the petitioner had proved disablement within two years of the date of last exposure. The circuit court found that this conclusion was against the manifest weight of the evidence and that Hicks’ claim was therefore time-barred by section 1(f) but did not specifically address the issue of whether Zeigler’s failure to advance this argument before the arbitrator waived it. A similar argument concerning the failure to raise a section 1(f) argument before the arbitrator was advanced in the recent case of Monterey Coal Co. v. Industrial Comm’n (1992), 241 Ill. App. 3d 386, 609 N.E.2d 339. There, we concluded that because the issue was raised before the Commission, it was properly before this court. Likewise,, in the present case, Zeigler advanced its section 1(f) argument at the hearing on review before the Commission. Accordingly, the issue is properly before this court.

We next address Hicks’ argument that section 1(f) of the Act should not be applied to cases involving coal miners’ pneumoconiosis because section 1(f) conflicts with section 6(c) of the Act (Ill. Rev. Stat. 1989, ch. 48, par. 172.41(c)), thereby frustrating the effect of the presumption set forth in section 1(d) of the Act (Ill. Rev. Stat. 1989, ch. 48, par. 172.36(d)). Section 1(f) of the Act provides:

“(f) No compensation shall be payable for or on account of any occupational disease unless disablement, as herein defined, occurs within two years after the last day of the last exposure to the hazards of the disease, except in cases of occupational disease caused by berylliosis or by the inhalation of silica dust or asbestos dust and, in such cases, within 3 years after the last day of the last exposure to the hazards of such disease and except in the case of occupational disease caused by exposure to radiological materials or equipment, and in such case, within 25 years after the last day of last exposure to the hazards of such disease.” (Ill. Rev. Stat. 1989, ch. 48, par. 172.36(f).)

Section 6(c) of the Act provides in pertinent part:

“Effective July 1, 1973[,] in cases of disability caused by coal miners[’] pneumoconiosis unless application for compensation is filed with the Commission within 5 years after the employee was last exposed where no compensation has been paid, or within 5 years after the last payment of compensation where any has been paid, the right to file such application shall be barred.” (Ill. Rev.

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Hicks v. Industrial Commission
621 N.E.2d 293 (Appellate Court of Illinois, 1993)

Cite This Page — Counsel Stack

Bluebook (online)
621 N.E.2d 293, 251 Ill. App. 3d 320, 190 Ill. Dec. 424, 1993 Ill. App. LEXIS 1556, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hicks-v-industrial-commission-illappct-1993.