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Workers' Compensation FLASHPOINTS December 2020

Joseph P. Basile | E-mail Joseph Basile

The Workers’ Compensation Commission Division of the Illinois Appellate Court published a Rule 23 order concerning a claim for benefits under the Workers’ Occupational Diseases Act, 820 ILCS 310/1, et seq. The case was a manifest weight decision and involved issues concerning occupational disease, causation, timely disablement, and the five factors in §8.1b(b) of the Workers’ Compensation Act, 820 ILCS 305/1, et seq., to be analyzed when awarding permanency. As with all occupational disease cases, there were conflicting medical opinions that are summarized. The Commission’s analysis for its awarding of permanent partial disability (PPD) benefits is also useful for practitioners.

Commission’s Findings That Claimant Established Occupational Disease and Properly Analyzed §8.1b of Workers’ Compensation Act in Awarding PPD Upheld

American Coal Co. v. Illinois Workers’ Compensation Commission, 2020 IL App (5th) 190522WC-U, arose out of a claim filed by a retired coal miner seeking benefits for injuries to his lungs, heart, pulmonary system, and respiratory tract because of exposure to coal dust and substances during the 40 years he worked as a coal miner. His last day of work was January 30, 2015. His medical records established treatment for sinusitis, respiratory infections, and a cough that at times had the production of sputum. His breathing was examined by a stethoscope, and the lungs were clear.

The claimant’s attorney arranged for Dr. Glennon Paul to examine him. Dr. Paul was board certified in asthma, allergy, and immunology, but he was not board certified in pulmonology nor was he a B reader. His impression was simple-type coal worker’s pneumoconiosis (CWP). Dr. Smith, a board-certified radiologist and B reader, interpreted a chest X-ray taken on November 12, 2015, as “positive for CWP, profusion 1/0 with P/P opacities in all lung zones.” 2020 IL App (5th) 190522WC-U at ¶12.

The employer arranged for Dr. Christopher Meyer, a radiologist and B reader, to review the X-ray. He concluded it was negative for CWP. Dr. Meyer disagreed with Dr. Smith’s findings and concluded that the claimant’s lungs were clear with no indication of CWP. In Dr. Meyer’s deposition, he testified that he was generally retained to review X-rays by the coal company. He testified he found the X-ray of the claimant’s lungs clear with no evidence of CWP.

Dr. James Castle, a pulmonologist and B reader, board certified in internal medicine and pulmonary disease, reviewed the claimant’s medical records at the employer’s request. He concluded the claimant did not suffer from any pulmonary disease or impairment as a result of exposure to coal mine dust. He found a pulmonary function study conducted on November 12, 2015, to be normal. He found no evidence of parenchymal abnormalities consistent with CWP on the chest X-ray.

Dr. Paul was deposed. He had conducted many examinations for the claimant’s counsel. He testified that the claimant’s history of coughing and wheezing during upper respiratory infections that would last about two months and develop four or five times a year fulfilled the definition of chronic bronchitis. In his report, he wrote that the pulmonary function tests were within normal limits. In his deposition, he testified the results were not within normal limits according to the American Medical Association GUIDES TO THE EVALUATION OF PERMANENT IMPAIRMENT (6th ed.) (AMA GUIDES). Dr. Paul stated the claimant’s lung function would be mildly abnormal based on the FEV1/FVC ratio and this abnormality in lung function indicated an obstructive impairment compatible with chronic bronchitis. (The ratio was 74 percent.) He related the chronic bronchitis to coal dust exposure. He testified the claimant had CWP and chronic obstructive pulmonary disease (COPD) from exposure to coal dust and further exposure would endanger the claimant’s health. Dr. Paul did not review the claimant’s medical records. When he examined the claimant, the total lung capacity was normal, there was no restriction, blood gasses were normal, and there was no impairment in gas exchange.

Dr. Castle also testified as to his findings on the chest X-ray. In his opinion, the pulmonary function study was normal and Dr. Paul had erred in calculating the FEV1/FVC ratio. To determine that ratio, one must take the greatest forced vital capacity (FVC) and the greatest forced expiratory volume (FEV1) in one second, which Dr. Paul did not do. When the highest results were used, the ratio was 75 percent, which was in normal range. 2020 IL App (5th) 190522WC-U at ¶24. This would be a Class 0 impairment under the AMA GUIDES. 2020 IL App (5th) 190522WC-U at ¶25. Dr. Castle agreed that having pulmonary function tests within the normal range “does not mean [one’s] lungs are free of any long damage, injury or disease.” 2020 IL App (5th) 190522WC-U at ¶42. He concluded that the claimant did not suffer from any pulmonary disease or impairment from coal mining. Based on objective testing performed on the claimant, Dr. Castle determined that, from a respiratory standpoint, the claimant could perform heavy manual labor.

The claimant’s medical records from January 16, 2018, showed that he was treated for hypertension. He was physically active and exercising on an elliptical machine three to four times a week. His respiratory effort was normal. Records from January 20, 2018, included a diagnosis of an upper respiratory infection. This was noted as an acute condition that could be treated with medication. On January 30, 2018, the claimant was improved with a minor cough but no shortness of breath or wheezing.

The claimant testified he first noticed breathing problems in the early to mid-1980s. From then until he left the mines, his breathing problems did not get better. At times, they worsened. They had remained the same since he left the mines. He testified that he hunted but no longer trekked deep into the woods. He described exercising on a treadmill and elliptical machine and light lifting. When he would get bronchitis, he would go to his doctor for treatment.

The arbitrator found the claimant failed to prove that he sustained an occupational disease or that he suffered from CWP, COPD, and chronic bronchitis. The arbitrator did not find Dr. Paul’s opinions persuasive. The arbitrator further found that the claimant failed to prove a timely disablement.

The Commission affirmed the finding on the issue of CWP. The Commission did find the claimant sustained disabling conditions of COPD and chronic bronchitis. The Commission found Dr. Paul’s opinions persuasive. The Commission noted that Dr. Castle did not examine the claimant and pointed out his testimony that having pulmonary function test results within the normal range does not rule out that there could be damage to the lungs, injury, or disease. Dr. Castle agreed that a diagnosis of chronic bronchitis is appropriate when there is evidence of obstruction. After analyzing the factors in §8.1b(b) of the Workers’ Compensation Act, the Commission awarded a 10-percent loss to the person as a whole.

The employer appealed the circuit court’s judgment, arguing that the Commission’s findings were against the manifest weight of the evidence. The appellate court disagreed. The Commission was entitled to rely on Dr. Paul’s opinions over Dr. Castle’s. The fact that Dr. Paul changed his opinion was not dispositive if his subsequent opinion that the claimant had chronic bronchitis and COPD had a foundation in the evidence. Dr. Castle had not examined the claimant. Dr. Castle agreed that a diagnosis of chronic bronchitis is determined by patient history and is appropriate when there is evidence of obstruction. Dr. Castle also agreed that a cough is not without importance in diagnosing a pulmonary impairment. The opinion discussed how the claimant’s medical records and his testimony provided support for Dr. Paul’s opinions.

The court also found the Commission’s implicit finding of a timely disablement under §§1(e) and 1(f) of the Workers’ Occupational Diseases Act was supported by the evidence. Dr. Paul found the conditions causally related to exposure to coal dust and testified that COPD, by definition, is disabling. Dr. Paul testified the COPD and chronic bronchitis prevented the claimant from returning to coal mining.

The court held that the Commission properly applied the five factors in §8.1b(b) of the Workers’ Compensation Act in awarding PPD benefits under §8(d)2 of that Act. No physician’s report establishing the level of impairment was submitted, and this factor was given no weight. That the claimant was a coal miner by occupation was given “some weight.” 2020 IL App (5th) 190522WC-U at ¶68. That the claimant was 62 when he retired, was at the end of his career, and remained stable was given “significant weight.” Id. The record was silent concerning any connection between his condition of ill-being and effect on future earning capacity, and this factor was given “little weight.” Id. As to the extent to which the treating medical records corroborated the alleged disability, the Commission observed that, while they showed the claimant’s condition was stable after leaving the mines, they also showed his condition of chronic bronchitis was an ongoing issue. The Commission found this indicative of his disability and gave it “moderate weight.” Id.

The employer argued that the Commission’s award of PPD was contrary to law because it concluded neither party submitted a physician’s report. The employer referenced Dr. Castle’s opinion on impairment in his deposition. The court disagreed. Section 8.1b(a) of the Workers’ Compensation Act prescribes the form and content of a physician’s report, which must be in writing. Dr. Castle’s deposition testimony was insufficient. He did not perform an evaluation of the required factors. The court agreed the Commission erred in concluding the employer did not submit a physician’s “opinion” as to impairment. 2020 IL App (5th) 190522WC-U at ¶72. Nevertheless, the court may affirm the Commission’s decision on any basis supported by the record regardless of the Commission’s findings or reasoning. There was sufficient evidence to support the judgment regarding impairment. The award for a ten-percent loss to the person as a whole was supported by the evidence.

For more information about workers’ compensation, see WORKERS’ COMPENSATION PRACTICE (ILLINOIS) (IICLE®, 2019). Online Library subscribers can view it for free by clicking here. If you don’t currently subscribe to the Online Library, visit www.iicle.com/subscriptions.

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