Zeigler Coal Co. v. Industrial Commission

604 N.E.2d 481, 237 Ill. App. 3d 213, 178 Ill. Dec. 225, 1992 Ill. App. LEXIS 1903
CourtAppellate Court of Illinois
DecidedNovember 25, 1992
Docket5-91-0809WC
StatusPublished
Cited by12 cases

This text of 604 N.E.2d 481 (Zeigler Coal 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
Zeigler Coal Co. v. Industrial Commission, 604 N.E.2d 481, 237 Ill. App. 3d 213, 178 Ill. Dec. 225, 1992 Ill. App. LEXIS 1903 (Ill. Ct. App. 1992).

Opinion

JUSTICE WOODWARD

delivered the opinion of the court:

On April 23, 1986, claimant, John A. Waggoner, 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.). He alleged impairment to his heart and lungs due to inhalation of coal and rock dust during a 40-year period of employment with respondent, Zeigler Coal Company. After a hearing held on September 14, 1989, the arbitrator found that claimant’s condition of ill being was causally related to his employment and that it arose out of and in the course of his employment. Further, the arbitrator found that claimant was totally and permanently disabled. A majority of the Industrial Commission (Commission) affirmed the arbitrator’s decision, and the circuit court confirmed the Commission’s decision. This timely appeal followed.

On appeal, respondent raises two arguments, namely, (1) the Commission’s decision regarding the extent and permanency of claimant’s disability is against the manifest weight of the evidence; and (2) claimant failed to prove he sustained disablement due to an occupational disease within the two-year period required by the Act.

At the arbitration hearing, claimant stated that he was born in 1923. He had worked for respondent a total of 40 years. For the first 35 years, he worked underground in a variety of jobs: shuttle car operator, electrician and battery maintainer. The last five years, claimant worked on the surface as a heavy equipment operator. Both underground and on the surface, he was continuously exposed to coal and rock dust. Claimant first noticed breathing problems in 1978 or 1979. Specifically, he was often short of breath, a condition which made it harder to perform his work tasks. On September 24, 1985, at the age of 62, he terminated his employment with respondent due to his continued respiratory problems. He stated that he was no longer able to do any work. After his retirement, claimant needed two pillows to sleep and also a fan to blow over his head so that he got enough air.

Claimant had smoked cigarettes since his second or third year in high school. For many years, he smoked one pack of cigarettes per day. As of the arbitration hearing, he smoked one-half a pack per day.

On cross-examination, claimant testified that he had never been hospitalized for breathing problems. He had taken an unspecified medication prescribed by Dr. Saeed Khan, but it offered no symptom relief.

On November 6, 1987, claimant was examined by Dr. Saeed Khan, board certified in internal medicine. Claimant told Dr. Khan that he could only walk one block before getting short of breath and could hardly climb one flight of stairs without becoming winded. His shortness of breath upon slight exertion had become' worse during the past five years. He also experienced a productive cough. Claimant told Dr. Khan that he retired because of his breathing difficulties.

A physical examination showed bilateral rhonchi (rattling sound) and basal crepitations. Claimant was also slightly dyspneic or short of breath and cyanosed with blue lips at rest. Cyanosis indicates that there is a decreased amount of oxygen in the tissues due to either heart disease or lung damage. Dr. Khan reviewed an X ray taken on October 27, 1987, and found bilateral interstitial fibrosis and hypertranslucency which is consistent with emphysema and coal workers’ pneumoconiosis. The pulmonary function study and blood-gas tests performed by Dr. Khan also showed a restrictive lung disease consistent with emphysema and coal workers’ pneumoconiosis.

Dr. Khan concluded that claimant had both emphysema and pneumoconiosis. In his opinion, claimant’s pneumoconiosis was caused by his work in the coal mines, while his emphysema was caused by both his smoking and coal mine employment. It was impossible to quantify how much of his emphysema was caused by smoking and how much was caused by coal mining. Dr. Khan concluded that because of claimant’s history of shortness of breath, his ability to walk only one block and his abnormal tests and X rays, it would be injurious for him to work in the coal mines or any other occupation.

On April 7, 1988, claimant was examined by Dr. William C. Houser, who is board certified in internal medicine and pulmonary disease. Claimant complained of shortness of breath at rest and upon exertion for the past seven to eight years along with a daily productive. cough. Upon physical examination, Dr. Houser noted that scattered rhonchia were present, especially on expiration. Slightly diminished breath sounds denoted decreased air movement which could imply fluid in or damage to the lung. Claimant’s pulmonary function tests suggested a small airway obstruction. A chest X ray showed opacities which indicated the presence of pneumoconiosis. In reaching his opinion, Dr. Houser considered records from Drs. Khan and Sanjabi. He concluded that the claimant had pneumoconiosis, which was caused by his 40 years of coal mining employment. Dr. Houser also testified that claimant had chronic bronchitis which was caused by both his coal mining employment and his smoking history. There was no way to quantify how much each process contributed to this disease. Dr. Houser recommended that claimant avoid further exposure to coal dust.

Dr. T.R. Marshall also testified for claimant via an evidence deposition taken on October 31, 1989. Dr. Marshall is a board-certified radiologist and B Reader whose practice consists of occupational disease cases and general radiology. At claimant’s request, Dr. Marshall reviewed chest X rays taken of claimant on April 7, 1988, and July 1, 1988. Both films revealed stage 2 pneumoconiosis in the claimant’s lungs. Dr. Marshall opined that inhalation of coal and rock dust over a long period of time caused claimant’s pneumoconiosis.

Dr. Barton Bridges testified for respondent via an evidence deposition taken on June 30, 1989. Dr. Bridges, a radiologist, examined four X rays taken of claimant’s chest. He found no evidence of pneumoconiosis in the chest X rays. On cross-examination, Dr. Bridges agreed that a person with a normal X ray can still have pneumoconiosis. The doctor also agreed that the 1988 X rays showed evidence of emphysema, which can be caused by coal mining.

On July 1, .1988, Dr. Peter Tuteur examined claimant at respondent’s request. An evidence deposition of Dr. Tuteur was taken on July 12, 1989. Claimant complained to Dr. Tuteur of extreme fatigue, breathlessness and a regular cough. Based upon the results of a physical examination, a pulmonary function study, a blood-gas study, a chest X ray and medical data from Drs. Khan and Houser, Dr. Tuteur concluded that claimant had “at worst” a trivial obstructive ventilatory defect, which was due to claimant’s cigarette smoking. Dr. Tuteur did not believe that claimant suffered from any disease caused or aggravated by his exposure to coal mine dust. He stated that his opinion lacked the benefit of any histologic data and that without such data it was impossible to rule out entirely the possibility of pneumoconiosis in claimant’s lungs.

Dr. Tuteur acknowledged that breathlessness is consistent with a diagnosis of pneumoconiosis.

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Bluebook (online)
604 N.E.2d 481, 237 Ill. App. 3d 213, 178 Ill. Dec. 225, 1992 Ill. App. LEXIS 1903, Counsel Stack Legal Research, https://law.counselstack.com/opinion/zeigler-coal-co-v-industrial-commission-illappct-1992.