Am. Coal Co. v. Ill. Workers' Comp. Comm'n
| Decision Date | 16 November 2020 |
| Docket Number | Appeal No. 5-19-0522WC |
| Citation | 177 N.E.3d 769,448 Ill.Dec. 713,2020 IL App (5th) 190522 WC |
| Parties | The AMERICAN COAL COMPANY, Appellant, v. The ILLINOIS WORKERS' COMPENSATION COMMISSION et al. (Robert Deere, Appellees). |
| Court | United States Appellate Court of Illinois |
Kenneth F. Werts and Julia A. Webb, of Craig & Craig, LLC, of Mt. Vernon, for appellant.
Bruce R. Wissore, of Culley & Wissore, of Harrisburg, for appellee.
¶ 1 The claimant, Robert Deere, filed a claim for benefits under the Workers' Occupational Diseases Act (Act) ( 820 ILCS 310/1 et seq. (West 2014)) against the respondent, American Coal Company (employer), for injuries to his lungs
, heart, pulmonary system, and respiratory tracts that he alleged were caused by exposure to coal dust and other substances during the 40-year period that he worked as a coal miner. After conducting a hearing, the arbitrator found that the claimant had failed to prove that he sustained an occupational disease arising out of and in the course of his employment, that his current condition of ill-being was causally connected to his employment, or that he suffered a timely disablement under section 1(f) of the Act ( 820 ILCS 310/1(f) (West 2014)). Accordingly, the arbitrator denied the claimant's claim for benefits.
¶ 2 The claimant appealed the arbitrator's decision to the Illinois Workers' Compensation Commission (Commission), which affirmed the arbitrator's decision in part and reversed in part. The Commission affirmed the arbitrator's finding that the claimant had failed to prove that he suffered from coal miner's pneumoconiosis
(CWP). However, the Commission found that the claimant had sustained chronic obstructive pulmonary disease (COPD) and chronic bronchitis arising out of or in the course of his employment and that the claimant's current condition of ill-being due to both of those conditions was causally related to his employment. The Commission further found that the claimant was permanently disabled to the extent of 10% of the person as a whole and ordered the employer to pay the claimant permanent partial disability (PPD) benefits pursuant to section 8(d)(2) of the Workers' Compensation Act ( 820 ILCS 305/8(d)(2) (West 2014)) in the amount of $735.37 for a period of 50 weeks.
¶ 3 The employer sought judicial review of the Commission's decision before the circuit court of Williamson County. The circuit court confirmed the Commission's decision.
¶ 4 This appeal followed.
¶ 6 The following factual recitation is taken from the evidence presented at the arbitration hearing conducted on March 14, 2018.
¶ 7 The claimant worked in coal mines for 40 years. He worked below ground for all but the first two years of his employment. The claimant testified that, during the course of his employment, he was regularly exposed to and breathed silica dust, roof bolting glue fumes, diesel fumes and "trowel on" (a glue used to put tiles up on the wall of the mine). The claimant retired from coal mining in 2015 at age 62. His last day of work was January 30, 2015. He testified that he was exposed to coal dust on the date he retired.
¶ 8 On March 27, 2015, the claimant filed an Application for Adjustment of Claim seeking benefits under the Act for what he claimed were employment-related injuries to his lungs
, heart, pulmonary system, and respiratory tracts.
¶ 9 The claimant's medical records from Logan Primary Care were admitted into evidence. These records indicate that the claimant had received treatment for various respiratory and other medical issues from December 1999 through July 2013. During that time period, the claimant was repeatedly treated for sinusitis
, multiple respiratory infections, and cough. His cough was sometimes accompanied by the production of sputum. At other times, his cough was nonproductive. When the claimant's breathing was examined by stethoscope, his lungs were found to be clear.
¶ 10 At the request of his counsel, the claimant saw Dr. Glennon Paul on November 12, 2015. Dr. Paul is the Medical Director of St. John's Hospital's Respiratory Therapy Department and Clinical Assistant Professor of Medicine at Southern Illinois University Medical School. Dr. Paul examined the claimant and produced a written report. Dr. Paul's report stated that the claimant was a 63-year-old nonsmoker who was retired and did not expect to go back to work. The claimant told Dr. Paul that: (1) he had worked in coal mines for 40 years; (2) all of his work had been underground, but he mostly worked at the face of the mine as a machine miner; (3) he had suffered from respiratory infections four to five times per year for several years prior to Dr. Paul's examination; (4) he would have coughing and wheezing whenever he had an upper respiratory tract infection
, and each such infection would last for approximately two months; and (5) he did not seek medical treatment for these infections. Dr. Paul noted in his report that the claimant's physical examination was normal. His lungs showed normal inspiratory and expiratory effort with no chest wall deformities or dullness to percussion. When Dr. Paul listened to the claimant's chest with a stethoscope, he heard no wheezes or rales (i.e. , abnormal rattling sounds). The claimant's complete blood count was normal, and his pulmonary function studies were within normal limits. A chest X-ray revealed some fibronodular lesions through both lung fields to a mild to moderate degree. Dr. Paul's impression was simple-type CWP.
¶ 11 Two days later, at the request of the claimant's attorney, Dr. Henry K. Smith reviewed the claimant's November 12, 2015, chest X-ray
. Dr. Smith is a board certified radiologist and B-reader. Dr. Smith interpreted the claimant's X-ray as positive for CWP, profusion 1/0 with P/P opacities in all lung zones. Dr. Smith also found interstitial fibrosis in all lung zones, mildly thickened interlobular fissures, and mild thoracic atherosclerosis. Dr. Smith was not deposed and did not testify during the arbitration hearing.
¶ 12 At the employer's request, Dr. Christopher Meyer, a radiologist and B-reader, also reviewed the claimant's November 12, 2015, chest X-ray
. Dr. Meyer interpreted the X-ray as negative for CWP. Dr. Meyer further noted that he had reviewed a narrative summary and B-reading form prepared by Dr. Smith regarding the same chest X-ray. Dr. Meyer disagreed with Dr. Smith's finding of small opacities of size "P" with profusion of 1/0. Dr. Meyer concluded that the claimant's lungs were clear and there was no indication of CWP.
¶ 13 At the employer's request, Dr. James Castle, a pulmonologist and B-reader who is board certified in internal medicine and in the subspecialty of pulmonary disease
, reviewed the claimant's medical records (including the November 12, 2015, X-ray) and issued a written report. Dr. Castle concluded that the claimant did not suffer from any pulmonary disease or impairment occurring as result of his occupational exposure to coal mine dust. He found the pulmonary function study of November 12, 2015, to be entirely normal. He also found that the November 12, 2015, chest X-ray showed no evidence of any parenchymal abnormalities consistent with CWP. He further noted that, because Dr. Smith had found a profusion of "1/0," that meant that Dr. Smith acknowledged the X-ray could be negative for CWP.
¶ 14 Dr. Meyer was deposed on September 30, 2016. During his deposition, Dr. Meyer testified that he has been board certified in radiology since 1992 and a B-reader since 1999. Dr. Meyer testified that he does about 160 to 200 B-readings per month. He acknowledged that he is generally retained by the coal company rather than the coal miner. Dr. Meyer stated that, in diagnosing CWP or certain other pulmonary conditions, a B-reader looks at the lungs to decide whether there are any small nodular opacities or any linear opacities. Specific occupational lung diseases
exhibit specific types of opacities. The B-reader also looks at the distribution and density of the opacities in the lungs.1 Dr. Meyer testified that, when he reviewed the claimant's November 12, 2015, X-ray, he found that the claimant's lungs were clear and there was no evidence of CWP.
¶ 15 Dr. Paul was deposed on February 17, 2017. During his deposition, Dr. Paul testified that he is board certified in asthma
, allergy and immunology. He was the senior physician at the Central Illinois Allergy & Respiratory Clinic. The physicians who practice at that clinic specialize in the treatment of allergic diseases and pulmonary disease. Dr. Paul was never board certified in pulmonary disease, and he is not a B-reader. Dr. Paul stated that he has seen hundreds of individuals at the request of the claimant's counsel.
¶ 16 Dr. Paul testified that it was his understanding that the claimant was a lifelong nonsmoker. The claimant worked for 40 years in the coal mines, all underground. According to Dr. Paul, the claimant had coughing and wheezing during upper respiratory infections
which would hang on about two months, and the claimant would get these infections four or five times per year. Dr. Paul testified that the amount of coughing that the claimant exhibited (i.e. , coughing 8 to 10 months a year for a number of years) fulfilled the definition of chronic bronchitis.
¶ 17 Although Dr. Paul acknowledged that he had recorded in his report that the claimant's pulmonary function tests
were within normal limits, he contradicted that opinion during his deposition. In his deposition testimony, Dr. Paul opined that the pulmonary function testing he had performed on the claimant before he issued his report was not within normal limits under the American Medical Association (AMA) Guides to Impairment, Sixth Edition. Specifically, Dr. Paul opined that the...
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