FILED November 6, 2019 Carla Bender 2019 IL App (4th) 180626WC-U th 4 District Appellate
Workers’ Compensation Commission Division Order Filed: November 6, 2016
No. 4-18-0626WC
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
KENNETH OSMOE, ) Appeal from the ) Circuit Court of Appellant, ) Sangamon County ) v. ) No. 16 MR 957 ) ) THE ILLINOIS WORKERS’ COMPENSATION ) COMMISSION et al., ) Honorable ) Brian T. Otwell, (Freeman United Coal Mining, Co., Appellee). ) Judge, presiding. ______________________________________________________________________________
JUSTICE HOFFMAN delivered the judgment of the court. Presiding Justice Holdridge and Justices Hudson, Cavanagh, and Barberis concurred in the judgment.
ORDER
¶1 Held: We affirmed the circuit court’s judgment confirming the Workers’ Compensation Commission’s decision finding that the claimant did not sustain an occupational disease arising out of and in the course of his employment and denying the claimant benefits under the Illinois Worker’s Occupational Diseases Act (820 ILCS 310/1 et seq. (West 2008)).
¶2 The claimant, Kenneth Osmoe, appeals from a judgment of the circuit court of Sangamon
County, confirming the decision of the Illinois Workers’ Compensation Commission No. 4-18-0626WC
(Commission) which found that he did not sustain an occupational disease arising out of and in
the course of his employment for Freeman United Coal Mining Company (Freeman) and
denying him benefits under the Illinois Worker’s Occupational Diseases Act (Act) (820 ILCS
310/1 et seq. (West 2008)). For the reasons which follow, we affirm the judgment of the circuit
court.
¶3 The following factual recitation is taken from the evidence adduced at the arbitration
hearing held on May 28, 2015.
¶4 The claimant was 66 years old as of the date of arbitration hearing. He testified that he
had worked in the coal-mining industry for 32 years, spending the first 30 years underground,
where he was exposed to coal dust, silica dust, rock dust, and the fumes of roof bolt glue. He last
worked as a coal miner for Freeman on August 27, 2007, which is the date the Crown II coal
mine closed.
¶5 According to the claimant, he began his coal-mining career in 1969, working for
Monterey Coal Company (Monterey) as a buggy runner. A buggy runner operates a machine that
takes the coal from the face of the mine at the continuous miner to the belt so that it can be
transported out of the mine. After a year working for Monterey, the claimant left the coal-mining
industry and moved to Washington. In 1980, the claimant returned to Illinois and began working
for Freeman. After a year working as a buggy runner for Freeman, the claimant took a job as roof
bolter. He remained a roof bolter for “a couple of years,” until he became a continuous miner
operator. In that role, he operated the continuous miner that cut the coal from the face of the
mine. He described the continuous miner as “pretty nasty at times,” due to the significant amount
of dust.
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¶6 The claimant spent the last three years of his mining career on the surface, where he
performed plant maintenance. As part of his duties on the surface, he cleaned the chutes going
through the silo that would get blocked. According to the claimant, “nothing but dust” came out
when he cleaned the chutes and there was “no way to get away from it.” With regard to the dust
and rock exposure, the claimant testified that the jobs he performed on the surface were “worse”
than being at the face of the mine. Following his career as a coal miner, the claimant worked as a
union laborer for 7 years.
¶7 The claimant testified that, 10 years into his coal mining career, he started to have
difficulty breathing and began to “wheeze” while doing activities. He stated that his breathing
problems got “progressively worse” throughout his employment with Freeman, but, since his
departure, they have remained “the same.” He explained that he now experiences difficulty
breathing when doing activities such as riding bikes and mowing the lawn. The claimant testified
that he has never smoked cigarettes in his life and his only other medical condition is borderline
diabetes. The claimant also testified that, approximately 10 years ago, he won a strong man
competition in Mount Olive, Illinois.
¶8 The claimant presented the evidence deposition of Dr. Manish Mathur, his family
physician. Dr. Mathur testified that, in the course of his practice, he occasionally treated coal
miners and former coal miners. He also has treated patients with lung diseases. Dr. Mathur
testified that he had treated the claimant four times between July 24, 2007, and August 7, 2012,
for various ailments, including shoulder pain, an upper respiratory infection, diarrhea, and a sore
tongue. On February 15, 2013, the claimant visited Dr. Mathur, complaining for the first time of
wheeze and a daily cough. During that visit, the claimant informed Dr. Mathur that he was
undergoing evaluation for “Black Lung,” and asked for a referral to Dr. Glennon Paul, a
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pulmonologist in the Springfield area. Dr. Mathur conducted a physical examination of the
claimant’s chest, which revealed normal breath sounds with no rales, rhonchi, wheezes, or rubs.
¶9 The claimant saw Dr. Mathur again on September 27, 2013, for a follow-up regarding
chronic cough and wheezing. The claimant informed Dr. Mathur that he had “recently” won a
Strongman Contest in Mount Olive. Dr. Mathur testified that he did not know what exactly the
competition entailed, but he assumed it dealt with heavy exertion of some sort. Dr. Mathur
ordered a chest x-ray to evaluate the claimant’s chronic cough. According to Dr. Mathur, the
chest x-ray was interpreted by Dr. Gene W. Spector, a radiologist, as “negative.” The claimant
returned to Dr. Mathur on February 11, 2015, during which he complained for the first time of
shortness of breath. Dr. Mathur testified that, on clinical exam, the claimant was not audibly
wheezing.
¶ 10 During the deposition, Dr. Mathur reviewed his responses to a series of interrogatories
that he had previously provided to the claimant’s counsel. According to the interrogatories, Dr.
Mathur opined that the claimant’s treatment records could not be used as a basis for ruling out
the existence of chronic bronchitis. Dr. Mathur further opined that, if the claimant does have
chronic bronchitis, it was caused or aggravated by his job as a coal miner and further exposure to
the coal mining environment would present risks to the claimant’s health. Dr. Mathur indicated
that there was no x-ray evidence of CWP in the claimant’s treatment records. He testified that he
is not an expert in radiologic diagnosis of CWP, but he believes it is possible to have CWP that is
not detectable on an x-ray but may be detectable via a more sensitive image scan, such as a CT
scan. He testified that pathology would “really clinch” the diagnosis of CWP. Dr. Mathur’s
interrogatories also indicated that the claimant’s treatment records could not be cited to rule out
the existence of asthma or reactive airways disease. Dr. Mathur further opined that, if the
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claimant does have asthma or reactive airways disease, his exposure as a coal miner either
caused or aggravated his condition.
¶ 11 The claimant next presented the evidence deposition of Dr. Glennon Paul, the medical
director at St. John’s Respiratory Therapy and Clinical Assistant Professor of Medicine at SIU
Medical School. Dr. Paul testified that he is board certified in asthma, allergy, and immunology.
Dr. Paul is not a B-reader, nor is he board certified in pulmonology.
¶ 12 Dr. Paul testified that he examined the claimant on March 4, 2013. The claimant related
to Dr. Paul a history of wheezing, coughing, and shortness of breath for “approximately ten
years.” During his examination of the claimant, Dr. Paul ordered a chest x-ray. He also had the
claimant undergo spirometry. The results showed no evidence of obstruction in the testing until
after the claimant inhaled methacholine and the claimant did not have a diffusion abnormality.
Dr. Paul testified that there was a change in the claimant’s FEV1 with methacholine of 14%. Dr.
Paul diagnosed the claimant with coal workers pneumoconiosis (CWP), chronic bronchitis, and
either asthma or reactive airway disease. Dr. Paul stated that he believes these conditions were
either caused, or aggravated in part, by the claimant’s exposure to the coal mine environment.
Because of these diagnoses, Dr. Paul opined that the claimant could have no further exposure to
the coal mine environment without potential progression of his conditions.
¶ 13 With regard to CWP, Dr. Paul testified that he found the claimant’s x-ray dated March 4,
2013, to be positive for CWP. Dr. Paul did not assign a profusion rating to the film, nor did he
indicate the opacity type that he saw on the film. Dr. Paul opined that, in order to have CWP, one
must not only have coal mine dust deposited in his lungs, but also a tissue reaction to it, which is
called scarring or fibrosis. The scarring cannot perform the function of normal, healthy lung
tissue. By definition, if one has CWP, he has some impairment in the function of the lung at the
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site of scarring whether it can be measured by spirometry or not. Dr. Paul testified that it is
possible to have CWP that is radiographically significant and have normal pulmonary-function
testing, normal blood gases, normal physical examination of the chest, and no shortness of
breath. Dr. Paul testified that if an individual has CWP and ends his exposure to coal mine dust,
the disease can still progress.
¶ 14 With regard to chronic bronchitis, Dr. Paul testified that a diagnosis of chronic bronchitis
does not require sputum but does require a history of coughing, wheezing, and shortness of
breath, which are the symptoms the claimant reported. When asked if he had authority for his
position that sputum was not required for such a diagnosis, Dr. Paul testified that it was “so
mundane and basic” and he knows that it is “written” but does not know where it is written. With
respect to Dr. Paul’s diagnosis that the claimant had asthma, he testified that the claimant’s 14%
change in FEV1 with methacholine, along with his history, was a positive test. Dr. Paul
acknowledged that “most people” use a guideline that says a 20% change in FEV1 is required to
be considered “significant” and, therefore, positive for asthma, but he emphasized that this is a
“guideline” and that he prefers to take in “the totalitarian [sic] of all findings in a patient.”
¶ 15 The claimant also presented the evidence deposition of Dr. Dani Tazbaz, who examined
the claimant on October 2, 2009. Dr. Tazbaz is board certified in internal medicine, pulmonary
disease, and critical care medicine. He estimated that five to ten percent of his patient census is
the care and treatment of former or current coal miners. Dr. Tazbaz conducted a physical
examination of the claimant’s chest, which was clear. The claimant reported that he experienced
shortness of breath, although he also told Dr. Tazbaz that he “could walk a mile.” Dr. Tazbaz
testified that the claimant’s obesity could be a contributing factor to his shortness of breath.
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¶ 16 Dr. Tazbaz diagnosed the claimant with CWP and chronic bronchitis, both of which were
caused by exposure to coal dust. With regard to CWP, Dr. Tazbaz testified that he based his
diagnosis on the claimant’s symptoms, which included a cough, and his chest x-ray. Although
Dr. Tazbaz testified that he is not a B-reader, he received a report from a B-reader and he agreed
with that report, which stated that the x-ray looked positive for CWP. Dr. Tazbaz did not note
where the opacities were located in the lungs. Dr. Tazbaz did not know when the chest x-ray he
reviewed had been performed, nor did he document the quality of the film. He testified that it is
“important” to know the film quality and whether the patient adequately performed the required
breathing during the x-ray and that he did not note it because it was not “abnormal.” With regard
to chronic bronchitis, the claimant reported to Dr. Tazbaz that he had a cough that persisted for a
year without sputum production. He also provided a history that included a cough while he was
working in the mines that produced black secretions. Dr. Tazbaz acknowledged that the claimant
did not have a history of sputum production in the two years after he left the coal mine.
According to Dr. Tazbaz, a diagnosis of chronic bronchitis “usually” has sputum production for
three months a year for the past two years.
¶ 17 The claimant also presented the chest x-ray reports of two B-readers. Dr. Henry K. Smith,
a board certified radiologist and NIOSH B-reader, interpreted an x-ray of the claimant’s chest
dated March 29, 2009, as positive for CWP, profusion 1/0 with P/S opacities in the bilateral
middle and lower lung zones. Dr. Smith interpreted an x-ray of the claimant’s chest taken on
October 14, 2010, as positive for CWP, profusion 1/1 with P/P opacities in all lung zones. Dr.
Smith interpreted a chest x-ray of March 4, 2013, as positive for CWP, category 1/0 with P/P
opacities in all lung zones. Dr. Smith also interpreted the claimant’s chest CT scan dated October
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14, 2010. He noted findings consistent with CWP with P/P opacities in the upper, mid, and lower
lung zones bilaterally with a profusion 1/1.
¶ 18 Dr. Michael S. Alexander, a board certified radiologist and B-reader, interpreted the
claimant’s chest x-rays dated March 29, 2009 and October 14, 2010, as positive for CWP,
profusion 1/0 with P/P opacities in all lung zones.
¶ 19 Freeman presented the chest x-ray report of B-reader Dr. James Castle. Dr. Castle, a
board certified pulmonologist, interpreted the claimant’s chest x-rays dated March 29, 2009 and
March 4, 2013. He interpreted the March 29, 2009 x-ray as negative for any findings of CWP.
Dr. Castle graded the film to be quality 2 due to improper position. Dr. Castle interpreted the
March 4, 2013 x-ray as negative for CWP. He graded that film to be quality 2 due to
overexposure.
¶ 20 Freeman next presented the evidence deposition of Dr. Jerome Wiot, who reviewed the
claimant’s radiographic films at its request. Dr. Wiot is a physician and diagnostic radiologist.
He is board certified in radiology and a certified B-reader. He was also the past president of the
American College of Radiology and, as a member of the task force on pneumoconiosis, helped
develop the weekend symposium that eventually became the B-reader program. Dr. Wiot has
been a B-reader since the program’s inception in 1970. According to Dr. Wiot, CWP invariably
begins in the upper lung zones and moves into the mid and lower lung zone as it progresses.
¶ 21 Dr. Wiot reviewed a PA and lateral x-ray of the claimant’s chest dated March 29, 2009.
Dr. Wiot graded the film as quality 2 because it was done in relative expiration, meaning that the
claimant did not take a “full and complete deep breath and hold it.” According to Dr. Wiot, as a
result of the underinflation there was some crowding of the bases, which makes it appear as
though there are more vascular markings than are actually present. He stated that, when
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reviewing such a film, one has to be careful to not “over interpret” what one is seeing in the
bases. Dr. Wiot found no evidence of CWP on the film that he reviewed.
¶ 22 Freeman also presented the evidence deposition of Dr. Cristopher Meyer, who reviewed
the claimant’s chest x-rays and CT scan at its request. Dr. Meyer is a radiologist and a B-reader.
Dr. Meyer explained that a B-reader looks at the films of the lung to decide whether there are
any small nodular opacities or linear opacities and, based on the size or appearance of the small
opacities, assigns the opacities a letter score. Dr. Meyer testified that specific occupational lung
diseases are described by specific opacity types. CWP is characteristically described by small
round opacities. The distribution of opacities is also described because different pathologies are
seen in different regions of the lung. He explained that CWP “is typically an upper zone
predominant process.” The last component is the extent of the lung involvement or the so-called
profusion. Dr. Meyer testified that the profusion defines the density of the small opacities in the
lung. Dr. Meyer stated that the distinction between a profusion rating of 1/0 and 0/1 is a critical
component of the B-reader examination and he believes is the rating that “trips up most non-
radiologists.”
¶ 23 The chest x-rays that Dr. Meyer reviewed were dated March 29, 2009, October 14, 2010,
and March 4, 2013. The CT scan was dated October 14, 2010. Dr. Meyer graded the chest x-rays
of March 29, 2009, and October 14, 2010, as quality 2 due to underinflation, which causes the
lungs to “look busier” because the pulmonary vasculature is accentuated. Dr. Meyer opined that
the claimant’s lungs were “clear” in both films and that there were no findings of CWP. Dr.
Meyer graded the March 4, 2013 chest x-ray as quality 2 due to over-exposure, which can make
the abnormalities of CWP less apparent. He testified that the claimant’s lungs were clear and
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there were no findings of CWP. Lastly, Dr. Meyer testified that, although there was some “mild
motion” on the claimant’s CT scan, there were no findings of CWP.
¶ 24 Freeman presented the deposition of Dr. Jeffrey Selby, who, at its request, reviewed the
claimant’s medical records and then examined the claimant on October 14, 2010. Dr. Selby is a
certified B-reader and board-certified internist and pulmonologist. Dr. Selby testified that the
claimant’s chief complaint was wheezing and shortness of breath. He examined the claimant’s
chest and found no abnormalities. Dr. Selby performed spirometry on the claimant and found no
evidence of an obstruction. Dr. Selby measured the claimant’s lung volumes and, based on those
measurements, found no evidence of restriction. The claimant’s diffusion capacity was “super
normal” at 125% of predicted. Dr. Selby performed exercise testing on the claimant, which
revealed no abnormality.
¶ 25 Dr. Selby reviewed the claimant’s chest x-rays dated March 29, 2009, and October 14,
2010. Dr. Selby graded the March 29, 2009 film to be quality 2 due to underinflation, which he
testified could cause a false positive reading due to increased lung markings that can look like,
but are not, scars. He could not find any abnormalities consistent with CWP on the March 29,
2009 chest x-ray. Dr. Selby also graded the October 14, 2010 film as quality 2 for underinflation
and his interpretation of that film was the same as the March 29, 2009 film. Dr. Selby also
ordered a high resolution CT scan, which both Dr. Selby and Dr. Anthony Perkins, a board-
certified radiologist, interpreted as showing no evidence of CWP.
¶ 26 Dr. Selby testified that the claimant did not have any respiratory or pulmonary
abnormalities as a result of coal mine dust inhalation or coal mine employment. He opined that
that the claimant’s obesity was a major, if not the only, cause of the claimant’s shortness of
breath and wheezing. Dr. Selby also reviewed the deposition of Dr. Tazbaz, in which Dr. Tazbaz
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testified that the claimant related a history of cough with sputum production that ended at the
time he left the mine and then returned after he had been out of the mine for a year. According to
Dr. Selby, this history, if true, indicated that the cough could not relate back to the claimant’s
coal mine employment. The condition ended after his coal mine employment, indicating that it
was temporary.
¶ 27 Dr. Selby testified that he saw the claimant again, at Freeman’s request, on March 10,
2014. The claimant underwent a methacholine challenge test under Dr. Selby’s direction. Dr.
Selby testified that methacholine challenge testing is done to determine whether an individual
has asthma. Dr. Selby opined that the methacholine challenge testing is a more valuable test for
ruling out asthma rather than for “ruling it in” due to the high number of false positives. The test
was done according to the American Thoracic Society’s guidelines. According to Dr. Selby, the
claimant gave a poor effort, but his best efforts at maximum dose showed that he had, at most, an
11% decline in his FEV1 after the methacholine challenge testing. Dr. Selby testified that a
positive test for asthma would produce a change from the baseline FEV1 of 20%. Dr. Selby
noted that Dr. Paul conducted the same test and the claimant had a 14% decline in his FEV1. Dr.
Selby testified that such a result is still negative and that the claimant did not have asthma.
¶ 28 On July 20, 2015, the arbitrator issued a decision, finding that the claimant did not sustain
an occupational disease arising out of and in the course of his employment for Freeman that
“manifested itself on August 28, 2007” and denying the claimant benefits under the Act. The
arbitrator found the opinions of Drs. Selby, Wiot, and Meyer more persuasive than the opinion of
Drs. Paul, Tazbaz, Smith, and Alexander. With regard to CWP, the arbitrator noted that Drs.
Smith and Alexander testified inconsistently regarding the March 29, 2009 chest x-ray and that
Dr. Smith’s interpretations of the chest x-rays was inconsistent with the “usual progression” of
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CWP as testified to by Drs. Wiot and Meyer. Lastly, the arbitrator found the claimant’s
credibility to be “suspect” given the inconsistent testimony regarding when the claimant
competed in a Strongman competition.
¶ 29 The claimant sought a review of the arbitrator’s decision before the Commission. The
Commission issued a unanimous decision on January 28, 2016, affirming and adopting the
decision of the arbitrator.
¶ 30 The claimant sought a judicial review of the Commission’s decision in the circuit court of
Sangamon County. The circuit court entered judgment on August 21, 2018, confirming the
Commission’s decisions. This appeal followed.
¶ 31 On appeal, the claimant argues that the Commission’s determination that he failed to
establish that he suffered from an occupational disease arising out of and in the course of his
employment was against the manifest weight of the evidence. He maintains that the evidence
clearly established that he was diagnosed with CWP, bronchitis, and asthma, all of which arose
out of and in the course of his employment as a coal miner. He also argues, as a preliminary
matter, that the Commission incorrectly held that he was required to prove that he suffered an
occupation disease that manifested itself on August 28, 2007, and, therefore, the Commission’s
decision should be reversed.
¶ 32 Whether a claimant suffers from an occupational disease that occurred in the course of
and arose out of employment presents a question of fact, which we review using the manifest
weight standard. Gross v. Illinois Workers’ Compensation Commission, 2011 IL App (4th)
100615WC, ¶ 21. Thus, we will reverse only if an opposite conclusion is clearly apparent. Id.
Resolving conflicts in the record, judging the credibility of witnesses, assigning weight to
evidence, and drawing reasonable inferences therefrom are matters for the Commission in the
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first instance. Beattie v. Industrial Comm’n, 276 Ill. App. 3d 446, 449 (1995). Furthermore, we
owe substantial deference to the Commission’s resolution of medical questions, as its expertise
in this realm has long been recognized. Long v. Industrial Comm’n, 76 Ill. 2d 561, 566 (1979). It
was the claimant’s burden in the proceedings below to establish each and every element of his
claim by a preponderance of the evidence. Navistar International Transportation Corp. v.
Industrial Comm’n, 315 Ill. App. 3d 1197, 1202 (2000). It is axiomatic that employment need
only be a cause, not the sole or main cause, of a condition for a claimant to recover under the
Act. Bernardoni v. Industrial Comm’n, 362 Ill. App. 3d 582, 596 (2005).
¶ 33 At the outset, we address the claimant’s preliminary argument that the Commission held
that he was required to prove an occupation disease that manifested itself on August 28, 2007.
Section 310/1(f) of the Act requires that disablement due to occupational disease occur within
two years after the last day of the last exposure to the hazards of the disease for compensation to
be payable. 820 ILCS 310/1(f) (West 2008). In its written decision, the Commission stated that
the claimant “did not sustain an occupational disease arising out of and in the course of his
employment for [Freeman] that manifested itself on August 28, 2007.” According to the
claimant, this statement is incorrect as a matter of law because his statutory period did not run
until August 27, 2009. As far as this court can tell, the claimant has failed to raise this issue
either before the Commission or the circuit court. The issue is therefore forfeited. See, e.g., R.D.
Masonry, Inc. v. Industrial Comm’n, 215 Ill. 2d 397, 414 (2005) (“Arguments not raised before
the Commission are waived on appeal.”); see also U.S. Steel Corporation–South Works v.
Industrial Comm’n, 147 Ill. App. 3d 402, 406 (1986) (ruling that an issue raised for the first time
in the circuit court “may be considered waived because the circuit court *** has no authority to
consider evidence or arguments not presented before the Commission”).
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¶ 34 Forfeiture aside, we find no merit to the claimant’s argument in this regard. As Freeman
acknowledged in its brief, the claimant was not required to prove that he had an occupational
disease that manifested itself on August 28, 2007. It argues, however, that the Commission’s
citation to that date is harmless as the evidence of record established that the claimant did not
suffer from an occupation disease on any date thereafter. We agree with Freeman.
¶ 35 Turning to the claimant’s remaining claims, he argues that the Commission erred in
finding that he did not suffer an occupational disease in the form of CWP that arose out of and in
the course of his employment with Freeman. We disagree.
¶ 36 The Commission’s finding that the claimant failed to establish that he had CWP is amply
supported by the evidence. The Commission’s conclusion rests upon the opinions of Freeman’s
experts, Drs. Wiot, Selby, and Meyer, who interpreted all of the x-rays of the claimant’s chest, as
well as the CT scan of his chest, to be negative for CWP. Additionally, although unmentioned by
the Commission, B-reader Dr. Castle also interpreted two chest x-rays as negative for CWP.
¶ 37 Freemans’ experts were not unchallenged. Drs. Paul and Tazbaz, as well as B-readers
Drs. Smith and Alexander, all found the claimant had CWP. Dr. Paul diagnosed the claimant
with CWP based on his reading of a chest x-ray. B-reader Dr. Smith interpreted x-rays of the
claimant’s chest from March 29, 2009, as positive for CWP with a profusion rating of 1/0 with
P/S opacities in the bilateral middle and lower lung zones. Dr. Smith graded the film as quality 2
due to underinflation. Dr. Smith interpreted a chest x-ray of October 14, 2010, as positive for
CWP with a profusion rating of 1/1 and P/P opacities in all lung zones. He graded the film to be
quality 1. Dr. Smith interpreted a March 4, 2013 chest x-ray as positive for CWP with a
profusion rating of 1/0 and P/P opacities in all lung zones. B-reader Dr. Alexander reviewed the
March 29, 2009, and October 14, 2010, chest x-rays and he interpreted them both as positive for
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CWP with a profusion rating of 1/0 with P/P opacities in all lung zones. Dr. Alexander graded
both films as quality 1.
¶ 38 As the foregoing evidence illustrates, the Commission was presented with conflicting
medical evidence as to whether the claimant demonstrated CWP. Unless the evidence on one
side is so compelling as to render the opposite conclusion clearly apparent, we must defer to the
Commission, which, as noted above, is uniquely situated to weigh competing medical evidence
and to resolve any evidentiary conflicts. Long, 76 Ill. 2d at 566; Freeman United Coal Mining
Co. v. Illinois Workers’ Compensation Commission, 2013 IL App (5th) 12056WC, ¶ 21. The
Commission in this case resolved the conflict in the evidence in Freeman’s favor, concluding
that the x-ray interpretations of the claimant’s experts were not persuasive. The Commission
noted that Drs. Paul and Tazbaz are not B-readers, nor did Dr. Paul assign the film he reviewed a
profusion rating or record an opacity type. The Commission also noted that Drs. Smith and
Alexander testified inconsistently regarding their profusion ratings for the same x-rays. Lastly,
the Commission noted that Dr. Smith’s interpretations were not consistent with the usual
progression of CWP, which, according to Drs. Wiot and Meyer, generally begins in the upper
lung zones. Given the evidence of record and the Commission’s role in weighing such evidence,
we cannot say that the opposite conclusion is clearly apparent.
¶ 39 The claimant nevertheless argues that the Commission’s decision was against the
manifest weight of the evidence because it was “confused” about the evidence concerning CWP
in the record. Specifically, the claimant argues that the Commission neglected to mention the
findings of one of Freeman’s B-readers, Dr. Castle, and that, when all the findings are
considered, Freeman’s B-readers were more inconsistent than his own. The claimant’s argument
is unpersuasive. The record shows that the only inconsistency in the findings of Freeman’s B-
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readers is Dr. Castle’s finding that the March 29, 2009 film was grade 2 due to improper
position. Drs. Wiot, Meyer, and Selby graded that film quality 2 due to underinflation. In
contrast, Drs. Smith and Alexander, the claimant’s B-readers, differed in their interpretation of
the March 29, 2009 x-ray as to the secondary shape and size of the opacities, what zones the
opacities were located, and the quality of the film. They also differed from each other with
regard to the October 14, 2010 x-ray as to the profusion rating. Simply put, there was ample
evidence for the Commission to determine that Freeman’s B-readers testified more consistently.
¶ 40 The claimant also contends that the Commission erred by giving “no weight” to the
opinions of Drs. Paul and Tazbaz because they were not B-readers. Additionally, the claimant
asserts that a foreign jurisdiction has raised serious questions concerning the reliability of B-
readings for use in litigation. See In re Silica Products Liability Litigation, 398 F. Supp. 2d 563,
625-26 (S.D. Tex. 2005). Simply put, the record does not support the claimant’s contention that
the Commission gave “no weight” to the opinions of Drs. Paul and Tazbaz. Although the
Commission noted that neither expert was a B-reader, it also noted Dr. Paul’s failure to assign
the film a profusion rating or record an opacity type. The record also reflects that Dr. Tazbaz
could not recall the date or quality of the chest film he reviewed, which he testified was
“important” information to know. Moreover, the claimant’s reliance on authority calling into
question the use of B-readings is somewhat puzzling given that a sizeable portion of the evidence
he presented in support of his claim consisted of B-readings. In any event, the claimant cites no
compelling rationale to question the use of B-readings in this case.
¶ 41 The claimant next maintains that the Commission erred in failing to find that he suffered
from the occupational disease of chronic bronchitis aggravated by exposure to coal dust. The
claimant argues that we should reverse the Commission’s decision because it failed to state how
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it weighed the evidence in its written decision. According to the claimant, although the
Commission provided a paragraph summarizing the evidence of chronic bronchitis in its
decision, it did not provide an explanation as to why it weighed the evidence the way that it did.
We note that the claimant cites no authority for his contention that the Commission’s failure to
state in its decision how it weighed the competing opinions is grounds for reversal. As such, it is
forfeited. Ill. S. Ct. R. 341(h)(7) (eff. Feb. 6, 2013) (requiring the appellant’s argument to include
citation to relevant authority); Ameritech Services, Inc. v. Illinois Workers’ Compensation
Comm’n, 389 Ill. App. 3d 191, 208 (2009) (noting that arguments on appeal are forfeited in the
absence of supporting legal authority).
¶ 42 We also disagree with the claimant’s argument that the Commission’s decision that he
did not suffer chronic bronchitis arising out of and in the course of his employment as a coal
miner is against the manifest weight of the evidence. The claimant’s treating physician, Dr.
Mathur, testified that the claimant might have chronic bronchitis; however, the claimant did not
complain of a daily cough until his February 15, 2013 visit. Dr. Paul diagnosed the claimant with
chronic bronchitis, which he attributed to the claimant’s coal-mine exposure. Dr. Paul testified
that sputum was not required for the diagnosis of chronic bronchitis, but he could not cite any
authority to back up his assertion beyond his own expertise. Dr. Tazbaz also diagnosed the
claimant with chronic bronchitis, basing his diagnosis on the claimant’s history of a productive
cough with black secretions that ceased when he was no longer working in the coal mine. Dr.
Tazbaz, however, testified that a diagnosis of chronic bronchitis requires sputum production for
three months a year for two years. Dr. Tazbaz further testified that the claimant did not have
sputum production as of the date of his visit. Dr. Selby testified that, because the claimant’s
cough and sputum ended with his coal mine employment, his condition was temporary and not a
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permanent condition related to his coal-mine exposure. Dr. Selby further testified that the
claimant’s symptoms could indicate industrial bronchitis. Given the difference of medical
opinion, and the fact that the Commission gave greater weight to Dr. Selby’s opinions, we cannot
say that the Commission finding that the claimant did not establish chronic bronchitis was
against the manifest weight of the evidence.
¶ 43 Lastly, the claimant argues that the Commission’s decision that he failed to prove that he
had asthma as a result of his exposure to coal dust is against the manifest weight of the evidence.
The claimant once again argues for reversal based on the Commission’s failure to address how it
weighed the competing evidence in its written decision. As mentioned above, the claimant has
forfeited this argument by failing to cite to any authority. Ill. S. Ct. R. 341(h)(7) (eff. Feb. 6,
2013) (requiring the appellant’s argument to include citation to relevant authority); Ameritech,
389 Ill. App. 3d at 208 (noting that arguments on appeal are forfeited in the absence of
supporting legal authority).
¶ 44 That said, the Commission’s decision does highlight the evidence regarding the
claimant’s alleged asthma. As the Commission noted, Dr. Paul diagnosed the claimant with
asthma after performing pulmonary function testing on the claimant. Dr. Paul testified that the
change in the claimants FEV1 with methacholine was 14%. He further testified that, although
“most” physicians require a change of 20% in FEV1 with methacholine to diagnose asthma, he
views that number as a “guideline” and not a fixed criterion. Dr. Selby also performed
methacholine challenge testing on the claimant. Dr. Selby testified that his test was performed
according to the American Thoracic Society’s guidelines. Dr. Selby testified that a positive test
for asthma would produce a change from the baseline FEV1 of 20%. Dr. Selby testified that the
claimant had at most an 11% decline in his FEV1 after the methacholine challenge testing with a
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valid effort. Dr. Selby testified that the 14% change reported by Dr. Paul is still a negative result
for asthma. According to Dr. Selby, the methacholine challenge testing is a more valuable test
for ruling out asthma rather than for “ruling it in” due to the high number of false positives. In
light of the foregoing evidence, there was sufficient evidence in the record to support the
Commission’s conclusion that the claimant failed to prove by a preponderance of the evidence
that he suffered from asthma as a result of his career as a coal miner.
¶ 45 For the reasons stated, we affirm the judgment of the circuit court that confirmed the
decision of the Commission.
¶ 46 Affirmed.
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