Freeman United Coal Mining
Co. v. Industrial Comm'n
State: Illinois
Court: Industrial Commission
Docket No: 5-96-0242WC
Case Date: 03/18/1997
No. 5-96-0242WC
FREEMAN UNITED COAL MINING COMPANY, ) Appeal from the
) Circuit Court of
Appellant, ) Williamson and
) Franklin County.
v. )
)
THE INDUSTRIAL COMMISSION et al. ) Honorable
) Paul S. Murphy and
) Larry O. Baker,
(Joe Griffith, Appellee). ) Judges Presiding.
JUSTICE RAKOWSKI delivered the opinion of the court:
Joe Griffith (claimant) filed an application for adjustment
of claim pursuant to the Workers' Occupational Diseases Act (the
Act) (820 ILCS 310/1 et seq. (West 1994)) for injuries allegedly
sustained to his lungs arising out of and in the course of his
employment as a coal miner. The arbitrator awarded benefits.
The Industrial Commission (Commission) reversed, finding that
claimant's condition of ill-being was solely related to his
history of smoking. The circuit court reversed. For the reasons
that follow, we conclude the Commission's decision is not against
the manifest weight of the evidence. Therefore, we reverse the
judgment of the circuit court and reinstate the Commission's
decision.
FACTS
Claimant had worked 25 years in the coal mine industry,
where he was continually exposed to coal dust. In 1976, claimant
began working for Freeman United Coal Mining Company (employer)
as a roof bolter, a laborer, and a mine repairman, where he was
also exposed to coal dust. Claimant was laid off work in
December 1982 when the coal mine closed, although he remained on
the panel because he was willing to continue work. After his
birthday in December 1982, claimant decided to take retirement
and has not looked for worked since then. At the time of
arbitration (1991), claimant was 64 years old and unemployed.
Claimant first noticed breathing problems in 1970 or 1971,
while working in the mines as a belt shoveler. Since then, his
breathing problems have worsened. At arbitration, claimant
testified that he experiences shortness of breath when mowing his
lawn or climbing stairs, and he can no longer hunt or garden. He
can only walk about one block before becoming short of breath and
he must take medication three times daily. Claimant smoked one-
half of a pack of cigarettes per day for about 50 years. He
stopped smoking in August 1990 after he had a heart attack.
In December 1984, claimant was examined by Dr. Saeed Khan,
who is board certified in internal medicine. Claimant told Dr.
Khan that he could not walk more than one block or climb stairs
without getting short of breath. Claimant said his shortness of
breath worsened over time and he experiences an excessive cough.
Claimant also told Dr. Kahn that he retired from the coal mines
because of breathing problems. An initial physical examination
showed pulmonary hypertension, dry crepitations, and bilateral
rhonchi (rattling sound). Dr. Kahn's initial diagnosis was
chronic pulmonary disease, emphysema, and coal workers'
pneumoconiosis.
Thereafter, Dr. Kahn reviewed a chest X ray taken on April
30, 1985, which showed moderate hyperinflation and multiple small
parenchymal calcifications suggesting granulomatous disease,
which is consistent with emphysema and coal workers'
pneumoconiosis. The initial pulmonary function study and blood
gas tests performed by Dr. Kahn were abnormal and showed
obstructive pulmonary disease, which is also consistent with
emphysema and coal workers' pneumoconiosis. Dr. Kahn performed
another pulmonary function study on June 17, 1985, and found the
results were fairly good.
Dr. Kahn found that claimant has emphysema, chronic
bronchitis, and coal workers' pneumoconiosis. In his opinion,
the pneumoconiosis was caused by claimant's exposure to coal dust
for 25 years, while his emphysema and chronic bronchitis were
caused by both his smoking and coal dust exposure. Dr. Khan
admitted, however, that claimant's history of smoking could
account for all of his symptoms.
On June 24, 1988, claimant was examined by Dr. William
Houser, who is board certified in internal medicine and pulmonary
disease. Dr. Houser noted that claimant had occasional coughing
episodes and would get short of breath when walking and climbing
stairs. He opined that claimant has pneumoconiosis, which was
caused by coal mining, and chronic obstructive pulmonary disease,
which was caused by both smoking and exposure to dust. Dr.
Houser stated that claimant cannot have further exposure to coal
dust without endangering his health, but that claimant is capable
of performing all but the most physically demanding jobs.
On June 17, 1985, claimant was examined by Dr. Darryl Sugar,
who is board certified in both internal medicine and nephrology
(kidney disease). Dr. Sugar noted a mild decrease in breath
sounds bilaterally with scattered wheeze, but the examination was
otherwise unremarkable. A chest X ray revealed multiple
bilateral parenchymal calcifications and evidence of old
histoplasmosis, but no evidence of pneumoconiosis. Also,
pulmonary function and arterial blood gas studies were within
normal range. Dr. Sugar concluded that claimant has chronic
bronchitis secondary to smoking, but he does not have
pneumoconiosis. He opined that if claimant stopped smoking his
symptoms would improve and enable him to return to work at the
coal mines.
On July 26, 1988, Dr. Tuteur examined claimant, took a chest
X ray, and conducted pulmonary function testing. Dr. Tuteur is
board certified in internal medicine and pulmonary medicine. He
viewed the X ray as normal, except for some calcifications that
are consistent with healed infections like histoplasmosis. The
results of the pulmonary function test and arterial blood gas
analysis were normal, and claimant's lung volumes showed no
restrictive defect. Dr. Tuteur concluded that claimant "does not
have clinically significant, physiologically significant, or
radiographically significant coal workers' pneumoconiosis," and
that any pulmonary impairment was caused by smoking. At best, he
stated it is "remotely possible" that claimant could have
microscopic evidence of pneumoconiosis, and in that event, he
recommended that claimant not be further exposed to coal mine
dust.
Based on this evidence, the arbitrator found claimant
suffered from pneumoconiosis that was causally related to and
arose out of and in the course of his coal mining employment.
The arbitrator awarded claimant permanent partial disability
benefits to the extent of 3% loss of use of the person as a
whole. The Commission reversed. The Commission expressly
assigned greater weight to the opinions of Dr. Tuteur and Dr.
Sugar than to the opinion of Dr. Kahn and found that claimant
does not have pneumoconiosis and that claimant's condition is
related solely to his history of smoking.
One commissioner dissented on the basis that claimant showed
by a preponderance of evidence that he has a functional
impairment that was caused at least in part by his occupation as
a coal miner. On review to the circuit court of Williamson
County, Judge Murphy adopted the dissenting commissioner's view
and reversed the decision of the Commission. The court stated
that the evidence in this matter gives rise to the rebuttable
presumption that claimant suffers from pneumoconiosis as a result
of his coal mining employment and that employer has not rebutted
this presumption. The cause was remanded to the Commission for
findings consistent with the court's decision. On remand, the
Commission, as required by the circuit court, adopted the medical
findings and conclusions of Dr. Khan and Dr. Houser and held in
favor of claimant "on all disputed issues as set forth in
Commissioner Jones' dissent." Consequently, the Commission found
claimant permanently and totally disabled and awarded him
benefits of $326.53 per week for life under section 8(f) of the
Act. Judge Baker of the circuit court of Franklin County
confirmed the Commission's award.
ANALYSIS
A. Presumption of Section 1(d) of the Act
Initially, we assign error to the circuit court's
application of section 1(d) of the Act, which provides in part:
"If a miner who is suffering or suffered from pneumoconiosis was
employed for 10 years or more in one or more coal mines there
shall, effective July 1, 1973[,] be a rebuttable presumption that
his or her pneumoconiosis arose out of such employment." 820
ILCS 310/1(d) (West 1994). The circuit court's decision on
appeal states: "Pursuant to 820 ILCS 310/1(d) this Court finds
that the evidence in this matter gives rise to the rebuttable
presumption that Petitioner is suffering from pneumoconiosis as a
result of his coal mine employment. Respondent has not rebutted
this presumption." (Emphasis added.)
The court's statement is incorrect to the extent that it
employs the wrong presumption. Pursuant to section 1(d) of the
Act, when the disease of pneumoconiosis is proven and present,
there is a presumption that the pneumoconiosis arose out of
employment. There is no presumption of the disease itself.
Hicks v. Industrial Comm'n, 251 Ill. App. 3d 320, 326 (1993). In
this case, the threshold issue before the Commission was whether
claimant actually had pneumoconiosis. Having determined that he
did not, there was no basis for the presumption to come into
play. As such, the proper issue before the circuit court was
whether the Commission's findings that claimant did not have
pneumoconiosis and that any pulmonary impairment was the result
of smoking were against the manifest weight of the evidence.
B. Manifest Weight of the Evidence
Before a reviewing court may overturn a decision of the
Commission, it must find the award was contrary to law or that
the Commission's factual determinations were against the manifest
weight of the evidence. Fitts v. Industrial Comm'n, 172 Ill. 2d
303, 307 (1996). Whether a claimant has provided sufficient
evidence of disablement and sufficient evidence of causation is a
question of fact for the Commission, and its decision will be
reversed only if it is against the manifest weight of the
evidence. Plasters v. Industrial Comm'n, 246 Ill. App. 3d 1, 8
(1993); Freeman United Coal Mining Co. v. Industrial Comm'n, 224
Ill. App. 3d 778, 790 (1992). A finding is not against the
manifest weight of the evidence unless an opposite conclusion is
clearly apparent. Freeman United Coal Mining Co. v. Industrial
Comm'n, 263 Ill. App. 3d 478, 484 (1994).
It is the province of the Commission to judge the
credibility of witnesses, draw reasonable inferences from the
testimony, and determine what weight to give the testimony.
Dexheimer v. Industrial Comm'n, 202 Ill. App. 3d 437, 442-43
(1990). Interpretation of medical testimony is particularly the
function of the Commission. Forsythe v. Industrial Comm'n, 263
Ill. App. 3d 463, 469 (1994), quoting A.O. Smith Corp. v.
Industrial Comm'n, 51 Ill. 2d 533, 536-37 (1972). Moreover,
where the evidence is conflicting or where different inferences
can be drawn, a court will not disregard permissible inferences
by the Commission merely because it may have drawn other
inferences from the evidence. Plasters, 246 Ill. App. 3d at 8.
Here, in the face of conflicting medical evidence, the
Commission chose to rely on the opinions of Dr. Tuteur and Dr.
Sugar, who opined that claimant did not have coal workers'
pneumoconiosis, or at least significant pneumoconiosis, and that
any pulmonary impairment was caused by smoking. The Commission
expressly discounted Dr. Khan's opinion that claimant had
developed pneumoconiosis as a result of coal mining, noting that
Dr. Khan also testified that claimant's history of smoking could
account for all of claimant's symptoms and that said symptoms are
similar for chronic bronchitis, emphysema, and pneumoconiosis.
Although the Commission did not expressly reject Dr. Houser's
opinion, this conclusion is evident, in view of the result.
Claimant contends the Commission impermissibly ignored Dr.
Houser's testimony, as evidenced by the Commission's decision to
"assign[] greater weight, in this case, to the opinions of Dr.
Tuteur and Dr. Sugar than to Dr. Khan." Although the Commission
did not expressly refer to Dr. Houser's opinion in that
statement, it clearly considered Dr. Houser's testimony. Earlier
in the decision, the Commission gave a summation of Dr. Houser's
opinion, emphasizing his testimony that claimant's condition
could have resulted solely from smoking.
Viewing the evidence as a whole, the Commission found
claimant does not have pneumoconiosis and that his condition and
symptoms are causally related to smoking. This decision was
"based on the more heavily weighed medical opinions" of Dr. Sugar
and Dr. Tuteur, rather than the opinions of Dr. Khan and Dr.
Houser. The resolution of such evidentiary conflicts is
manifestly the province of the Commission, not the circuit court.
Therefore, we find the circuit court erred in reversing the
Commission's decision, which is supported by the record.
Claimant, without citation to authority, would have us hold
that the Commission erred in rejecting the testimonies of Dr.
Khan and Dr. Houser because their credentials are more
impressive, allegedly, than those of Dr. Sugar and Dr. Tuteur.
We reject this argument on the ground that credibility
determinations and the weight to be given the opinions of medical
experts are particularly the domain of the Commission. In any
event, our independent review of the curricula vitae of the
experts shows their credentials are comparable.
Our research has uncovered one case where the court has
overturned the Commission's decision based on the unbalanced
testimony and background of experts. In Osco Drug, Inc. v.
Industrial Comm'n, 36 Ill. 2d 361, 368 (1967), the supreme court
noted that of the five doctors who testified, only one believed
there might or could have been a causal relationship between the
claimant's injury and her cancerous condition. The prevailing
view among the others was that trauma of the type encountered by
the claimant could not cause cancer. Osco Drug, Inc., 36 Ill. 2d
at 368. Moreover, the one doctor who found a possible causal
relationship had very limited experience in cancer (he had taken
a one-week course in cancer), he practiced two years at an
apparently unspecialized clinic in Boston, and was a staff member
of the only Rockford hospital having a recognized tumor clinic.
Osco Drug, Inc., 36 Ill. 2d at 363. In contrast, the other four
doctors had extensive experience in cancer research, had taught
at large universities and hospitals, and were well recognized in
the field of cancer study. Osco Drug, Inc., 36 Ill. 2d at 364-
68.
The facts of the instant case are inapposite to those
presented in Osco Drug in that there is no glaring inequality of
the experts' backgrounds or experience. Moreover, the opinion of
each expert, including claimant's own experts, supported the
inference that claimant's condition of ill-being could have been
caused entirely by his many years of smoking. Accordingly, we
find no merit in claimant's contention that the Commission's
decision and reliance on the opinions of Dr. Sugar and Dr. Tuteur
were arbitrary and unreasonable.
CONCLUSION
The resolution of factual matters is the province of the
Commission, and its decision will not be reversed unless it is
against the manifest weight of the evidence. In this case, the
initial finding of the Commission of no casual relationship
between claimant's employment and condition of ill-being is not
against the manifest weight of the evidence. Therefore, the
circuit court erred in setting it aside. Accordingly, the
judgment of the circuit court of Williamson County is reversed,
and the award confirmed by the circuit court of Franklin County
is vacated. The original decision of the Commission is
reinstated.
Williamson County No. 94 MR 10 -- Reversed.
Franklin County No. 95 MR 28 -- Vacated.
Industrial Commission of January 5, 1994 -- Reinstated.
McCULLOUGH, P.J., and COLWELL and HOLDRIDGE, JJ., concur.
JUSTICE RARICK, concurring in part and dissenting in part:
I agree with the majority's conclusion that the circuit
court erred in its interpretation and application of section 1(d)
of the Act. Section 1(d) does not raise a presumption that a
claimant suffers from pneumoconiosis. Rather, once it is shown
that a claimant suffers from pneumoconiosis, section 1(d) raises
a rebuttable presumption that such condition is causally
connected to his employment. 820 ILCS 310/1(d) (West 1994). I
must respectfully dissent, however, from the majority's
conclusion that the Commission's original decision was not
contrary to the manifest weight of the evidence. Reviewing
Commissioner Jones' dissent, I find it to be very thorough and
well reasoned, and I would adopt the conclusions therein. NO. 5-96-0242WC
IN THE
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
___________________________________________________________________________
FREEMAN UNITED COAL MINING COMPANY,) Appeal from the Circuit
) Courts of Williamson County
Appellant, ) and Franklin County.
)
v. ) No. 95-MR-28
)
THE INDUSTRIAL COMMISSION et al. ) Honorable
(Joe Griffith, Appellee). ) Paul S. Murphy and
) Larry O. Baker,
) Judges, presiding.
___________________________________________________________________________
Opinion Filed: March 18, 1997
___________________________________________________________________________
Justices: Honorable Thomas R. Rakowski, J.
Honorable John T. McCullough, P.J.,
Honorable Michael J. Colwell, J.,
Honorable William E. Holdridge, J.,
Concur
Honorable Philip J. Rarick, J.,
Dissents
___________________________________________________________________________
Attorneys Kenneth F. Werts and Henry P. Villani, Craig & Craig,
for 227
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