Monterey Coal Co. v. Ill. Workers' Comp. Comm'n

• Decision Date: 18 December 2015
• Docket Number: NO. 4-14-1023WC,4-14-1023WC
• Citation: Monterey Coal Co. v. Ill. Workers' Comp. Comm'n, 2015 IL App (4th) 141023WC-U, NO. 4-14-1023WC (Ill. App. Dec 18, 2015)
• Parties: MONTEREY COAL COMPANY, Appellant, v. THE ILLINOIS WORKERS' COMPENSATION COMMISSION et al. (Donald Stewart, Appellee).
• Court: United States Appellate Court of Illinois

2015 IL App (4th) 141023WC-U

MONTEREY COAL COMPANY, Appellant, v. THE ILLINOIS WORKERS' COMPENSATION COMMISSION et al. (Donald Stewart, Appellee).

NO. 4-14-1023WC

APPELLATE COURT OF ILLINOIS FOURTH DISTRICT WORKERS' COMPENSATION COMMISSION DIVISION

December 18, 2015

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).

Appeal from Circuit Court of Macoupin County

No. 13MR63

Honorable Kenneth R. Deihl, Judge Presiding.

JUSTICE HARRISdelivered the judgment of the court.

Presiding Justice Holdridge and Justices Hoffman and Stewart concurred in the judgment.

Justice Hudson concurred in part and dissented in part.

ORDER

¶ 1Held: The Commission's award of wage differential benefits was not against the manifest weight of the evidence.

¶ 2 On November 28, 2007, claimant, Donald Stewart, filed an application for adjustment of claim pursuant to the Workers' Occupational Diseases Act (Act)(820 ILCS 310/1 et seq.(West 2006)), seeking benefits from the employer, Monterey Coal Company.Following a hearing, the arbitrator found claimant developed coal worker's pneumoconiosis (CWP) and an aggravation of his preexisting asthma as a result of his work as a coal miner and his "exposure to various [coal] mine dust and fumes."He found claimant entitled to wage differential benefits of $505.09 per week, beginning September 21, 2007, and "for the duration of the disability."

¶ 3 The Illinois Workers' Compensation Commission(Commission) affirmed and adopted the arbitrator's decision without further comment.On judicial review, the circuit court of Macoupin County confirmed the Commission.The employer appeals, arguing the Commission's determination that claimant was entitled to wage differential benefits was against the manifest weight of the evidence.We affirm.

¶ 4 I. BACKGROUND

¶ 5 On June 12, 2012, an arbitration hearing was conducted in the matter.Claimant, who was then 57 years old, testified that, beginning in July 1976, he worked for the employer as an underground coal miner for over 30 years.He stated that, during that time, in addition to coal dust, he regularly inhaled silica dust, diesel exhaust, rock dust, glues used in the vulcanizing process to repair belt lines, and plant glues used to repair coal shoots with ceramic tile.

¶ 6Claimant acknowledged having allergy-related issues and asthma prior to working for the employer.He testified as follows:

"I recall severe allergies all my childhood life.You want to know what I recall about my asthma?I maybe had some mild symptoms but I really didn't have too much trouble with my lungs until I got in that coal mine, and I talked about, with my wife, not even working there but I had two kids to raise and it was the best job around."

¶ 7Claimant testified he was first exposed to vulcanizing glue at work in November or December of 1976.He noticed a reaction in his lungs from the glue.Claimant stated he experienced "tightness," sought medical treatment from Dr. Glennon Paul, and spent a week in the hospital.He reported that he got better "through aggressive treatment" and went back to work.Claimant stated he also received "a lot of medicine" from Dr. Paul.

¶ 8 On another occasion, claimant testified he experienced problems after being exposed to "special glue" used to repair "the long wall" at the mine.He described the long wall as a machine that was "a thousand feet long."During the last 10 to 12 years that he worked at the mine, two instances occurred when the employer was in danger of losing the long wall "because the rock above the coal seam was falling."Claimant testified mining operations ceased and a contractor was called in to fix the problem with the "special glue."The contractor's workers used special suits and breathing equipment because of the danger of the glue.Claimant testified he was a mine examiner and was responsible for taking an air reading before coal mining operations could resume.He believed some part of the glue "had not been set up enough" while he was taking his reading and he felt "a burning sensation in [his] lungs for a month."He returned to Dr. Paul and received an "IV treatment," a nebulizer treatment, and Prednisone.

¶ 9 According to claimant, other instances occurred when he was exposed to roof bolting glue.He testified it was common that the glue would be "run over by equipment," break open, and "lay there for weeks on end."Claimant stated that there were several occasions when the glue bothered him but he recalled one instance when he had an acute reaction after he"stuck [his] head right over" a box he did not know had been run over.

¶ 10Claimant testified he"pretty much was on medicine [his] last 15, 20 years at the mine" and had "probably taken every kind of asthma medicine."Currently, he was taking Advair Diskus daily; 300 milligrams of Theophylline twice a day; Albuterol when he had an acute episode; and Tussionex, which he believed contained Vicodin, as needed when he had difficulty sleeping due to coughing.Claimant testified he also always had Prednisone on hand and took an antihistamine quite a bit.On cross-examination, he testified he was "able to work at the mine taking all [of his] medication, [and] it kept [him] going."

¶ 11Claimant last worked for the employer on September 29, 2006, and testified he was exposed to coal dust on that date.He quit work "a little bit before" the mine closed.Claimant asserted he quit because he believed his "lungs were shot."He noted he could not "do near the work, near the walking [he] was doing before."Claimant acknowledged he had been "on restricted duty for [his] back" and people helped him with his route.He testified he had a bad nerve in his back that was not fixable.On cross-examination, claimant testified he initially injured his back in November 2005, and then reinjured his back in approximately March 2006.He agreed that after March 2006he went on restricted duty, which continued until September 2006, when he stopped working for the employer.Claimant further testified as follows: "I had multiple health issues and, you know, my lungs and back basically was a big one.Basically my lungs sent me home."

¶ 12 On cross-examination, claimant agreed that a number of miners retired around the same time he left the mine because the mine was rumored to have been sold and they wanted to retire under the medical plan that was then in force.Claimant asserted, given his health, he could not have worked for any coal company.However, he agreed that, due to "the disease [he had] it would be fair to say [he] was concerned about having insurance."Further, claimant acknowledged that he had been told there was no permanent light-duty or restricted-duty work available with the employer.

¶ 13 Both before and after his last day of work for the employer, claimant worked as the local union president and on the State Mining Board for the Illinois Department of Natural Resources.He stated his job as the local union president required him to represent 300 retired coal miners and their spouses and he earned $3,000 per year in that position.Claimant testified the State Mining Board had six members and a director.His position with the board was an ap-pointed position that paid around $12,500 per year and provided him with medical and retirement benefits.Claimant testified the insurance he had through his work with the board was as good as or better than the medical plan he had through the employer.Further, with respect to employment, the following colloquy occurred between claimant and his attorney:

"Q.Do you think that's the best work you could get outside of coal mining?

A.Well, considering the fact that—yes, with my back and lungs and the—yeah, I really do.It's what I did—all I ever did as an adult, something in the mining industry.I've been on two different boards since 2003 and I have a long history of representing miners in different areas.It's actually a perfect fit for me and my health conditions."

¶ 14Claimant testified that he did not believe he could work as a coal miner.When asked whether his back or his breathing gave him the most problems, he stated as follows:

"Well, when my asthma's bad I can't think of nothing worse than feeling like you're suffocating and since that exposure I explained earlier I think I have permanent lung damage getting exposed to that glue that they glued the face up with and my lungs are—there's a tightness in there even with my medicine all the time so I don't think I could go back to the coal mine, no."

Additionally, claimant testified that over the course of his coal mining career the frequency of his "attacks" increased.He also believed they increased in severity.

¶ 15Claimant testified that if he was working as a coal miner at the time of arbitrationand in the position of a mine examiner—the classification he had when he left the coal mine—he would be earning a little over $25 per hour.He submitted an exhibit containing a copy of the National Bituminous Coal Wage Agreement, which he testified established $26.41 as the hourly rate for his position in 2012.That agreement notes the hourly rate was computed by dividing the standard daily wage rate of $211.32 by eight hours.

¶ 16 At arbitration, claimant presented the testimony of James Chronister, who also worked for the employer.Chronister stated he worked with or near claimant on a regular basis during claimant's last 10 years at the mine.Chronister noticed that claimant had breathing problems.He observed that claimant had to go sit down and use his inhaler after picking up materials that were broken or had been run over, including roof bolting glue.Chronister testified he routinely saw broken tubes of glue in the mine.Further he stated claimant used inhalers at work on a regular basis.Chronister also observed claimant have reactions to diesel exhaust, which he stated claimant was exposed...