Plasters v. Industrial Commission

615 N.E.2d 1145, 246 Ill. App. 3d 1, 186 Ill. Dec. 88
CourtAppellate Court of Illinois
DecidedApril 15, 1993
Docket5-92-0177 WC
StatusPublished
Cited by13 cases

This text of 615 N.E.2d 1145 (Plasters 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
Plasters v. Industrial Commission, 615 N.E.2d 1145, 246 Ill. App. 3d 1, 186 Ill. Dec. 88 (Ill. Ct. App. 1993).

Opinion

JUSTICE RAKOWSKI

delivered the opinion of the court:

On November 20, 1985, Lee Plasters (claimant) filed an application for adjustment of claim pursuant to the Workers’ Occupational Diseases Act (Act) (Ill. Rev. Stat. 1985, ch. 48, par. 172.36 et seq.). Claimant alleged that his heart and lungs were impaired due to the inhalation of coal and rock dust which occurred while he was employed with Old Ben Coal Company (employer). The arbitrator found that the claimant was permanently and totally disabled, and the employer appealed the award to the Industrial Commission (Commission). The Commission affirmed the finding of disability but modified the amount of the award, finding that the claimant was entitled to permanent disability to the extent of 20%. The circuit court reversed the decision of the Commission, ruling that the claim was barred by the time period set forth in section 1(f) of the Act (Ill. Rev. Stat. 1985, ch. 48, par. 172.36(f)). The issues on appeal are: (1) whether the circuit court erred in applying section 1(f) of the Act to a claim based on coal miners’ pneumoconiosis; (2) whether the circuit court’s reversal of the Commission’s determination that the claimant proved disablement pursuant to section 1(f) of the Act was error; and (3) whether the Commission’s determination that the claimant was not totally disabled was against the manifest weight of the evidence. We affirm in part and reverse in part.

The claimant began working as a coal miner in 1939. He worked below ground as a trip rider for 10 years but left mining and joined the Navy. After serving in the Navy for about two years, he returned to mining and worked for the employer as a coal driller for 171/2 years. The claimant testified that the dust was so bad at that time that he was unable to see a co-worker’s light which was eight feet away. The claimant left the employer and went to work at another mine loading coal. Five and one-half years later the claimant returned to the employer, where he remained until his termination. When the claimant first returned to the employer, he worked as a miner-operator but “bid” off the job to do repairs because he could no longer perform the work.

The claimant stated that his breathing problems began four or five years before he left the employer. His symptoms progressed to the point that he had to stop and catch his breath while working, and he frequently required help from his co-workers.

After the mine shut down for one year, the claimant was called back to work as a laborer, tearing out old belts and replacing them. He also worked as a belt-walker and cleaner which involved his walking more than three miles a day and using a shovel. After the mine shut down a second time in December of 1982, the claimant did not return to mining because his breathing problems had progressed to the point that he could no longer perform his job. The claimant stated that he was continuously exposed to coal dust throughout his employment in the mines.

After the claimant left mining, his breathing problems continued to become progressively worse. At the time of his testimony before the arbitrator in August 1989, the claimant stated that he could not walk more than about a block before becoming short of breath and that he was no longer able to hunt or fish because of this limitation. He coughed a great deal and sometimes had to get up in the middle of the night and sit in a chair. The claimant further testified that he had received treatment for his breathing difficulty from his family doctor since retirement and that the doctor had prescribed medications and the use of an inhaler. At the time of the hearing, the claimant was seen by the doctor once a month unless his symptoms became worse and he had to arrange for an earlier visit.

Dr. Parviz B. Sanjabi was an internist specializing in pulmonary disease and a provider for the Department of Labor Black Lung Program. Under a grant from the Federal government, he developed a treatment program for people with chronic obstructive lung disease and pneumoconiosis. He also provided treatment for many coal miners in his private practice. Dr. Sanjabi first saw the claimant on February 20, 1986, to determine if he had coal miners’ pneumoconiosis. His chief complaint was shortness of breath while climbing a flight of stairs, walking, or carrying a 25-pound weight and spasmodic coughing. The physical examination revealed that the claimant had prolonged expiratory time which is consistent with obstructed airways seen in some pneumoconiosis cases. Dr. Sanjabi reviewed the X rays from 1985, which indicated the presence of small opacities in all areas of the lung. Both the results of the X ray and the pulmonary-function studies were consistent with coal miners’ pneumoconiosis. Dr. Sanjabi stated that because pneumoconiosis was a chronic disease which usually progresses slowly, the claimant had the disease when he stopped mining in December 1982. He further stated that additional exposure to coal dust at that time would have further damaged his lungs. Dr. Sanjabi described the claimant’s disease in 1986 as simple pneumoconiosis.

In 1988 Dr. Sanjabi performed a bronchoscopy on the claimant when an X ray showed an abnormality not related to the pneumoconiosis. A biopsy showed no malignancy, and Dr. Sanjabi concluded that what was seen on X ray was probably scar tissue.

On September 7, 1988, the claimant was examined by Dr. Saeed A. Khan. Dr. Khan practiced internal medicine and received additional training in cardiology and pulmonary disease. He saw many patients with pulmonary problems, particularly those associated with mining. On examination, he noted that the claimant was dyspneic and cyanotic with clubbing of the fingernails. He also identified a right ventricle heave which indicated that the ventricle was enlarged. Other symptoms noted were decreased breath sounds in both lungs, dry crepitations (bubbling noise due to damaged lung tissue), and a narrowing of the bronchial tube which caused a whistling sound known as rhonchi. Pulmonary-function tests and blood-gas studies were performed which indicated impairment to the claimant’s lungs suggestive of emphysema and coal miners’ pneumoconiosis. The chest X rays showed marked interstitial fibrosis in both lung fields, hypertransluceney, and progressive massive fibrosis in. both upper lobes. The board-certified radiologist concluded that the claimant had advanced pneumoconiosis. It was Dr. Khan’s opinion that the impairment to the claimant’s lungs and the resulting pneumoconiosis were caused by his years of exposure to coal dust and that if he continued to work in the mines his health would continue to deteriorate. Dr. Khan added that pneumoconiosis was an irreversible and chronic illness. Because of his pulmonary impairment, the claimant was also unable to do any suitable comparable work.

The arbitrator found that the claimant had pneumoconiosis which arose out of his coal-mining employment and that he was permanently and totally disabled. The Commission confirmed the finding of disability but concluded that the claimant was not obviously unemployable and had failed to prove that work was unavailable. Based on this determination, the Commission reduced the disability award to permanent disability to the extent of 20%. Both parties appealed the Commission’s determination, and the separate appeals were consolidated.

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Bluebook (online)
615 N.E.2d 1145, 246 Ill. App. 3d 1, 186 Ill. Dec. 88, Counsel Stack Legal Research, https://law.counselstack.com/opinion/plasters-v-industrial-commission-illappct-1993.