American Coal Company v. The Illinois Workers’ Compensation Commission was published on November 16, 2020 by the Appellate Court’s Workers’ Compensation Division. The claimant, Robert Deere, filed a claim for benefits under the Workers’ Occupational Disease Act against his employer, American Coal Company, for injuries to his lungs, heart, pulmonary system, and respiratory tracts allegedly caused by exposure to coal dust and other substances during his 40 year career as a coal miner. Claimant worked below ground for all but the first two years of his employment, and testified that he was regularly exposed to and breathed silica dust, roof bolting glue fumes, diesel fumes and “trowel on”, which is a glue used to put tiles up on the walls of the mine. His last date of employment was January 30, 2015, which was also the last day that he was exposed to coal dust. The claimant file his application for adjustment of claim with the Commission on March 27, 2015.
Claimant testified that he worked at the Galatia mine. He first noticed breathing problems in the 80’s. His breathing would become labored, and he would cough up black sputum. He noticed a difference in his ability to breathe accompanied by fatigue. His breathing issues did not improve, and his condition would worsen from time to time. His breathing has not improved since leaving the mines. He can’t take deep breaths. He has to stop and rest while doing yard work or playing with his grandchildren. He quit bike riding, and no longer runs. Although he still hunts, he can no longer trek deep into the woods like he used to and now tries to stay closer to the edge of the timber near the road.
Claimant saw his family physician for breathing difficulties. The claimant has never smoked, and takes medications for high blood pressure.
Three doctors testified in this matter. Dr. Glennon Paul examined the claimant at the request of his attorney on November 12, 2015. Dr. James Castle performed a record review and issued a report at the request of American Coal Company. Dr. Christopher Meyer reviewed records and interpreted claimant’s November 12, 2015 chest x-ray at the behest of American Coal Company.
THE TESTIMONY OF DR. GLENNON PAUL
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. He is board certified in asthma, allergy and immunology, and is the senior physician at the Central Illinois Allergy & Respiratory Clinic. Dr. Paul is not board certified in pulmonary disease, and is not a B-reader. A “B” reader is a physician certified by the National Institute for Occupational Safety and Health (NIOSH) as demonstrating proficiency in classifying radiographs of the pneumoconioses.
Dr. Paul testified that the amount of coughing exhibited by the claimant fulfilled the definite of chronic bronchitis. He opined that the pulmonary function testing he had performed on the claimant were not within normal limits under the AMA Guides to Impairment, Sixth Edition. Specifically, Dr. Paul opined that claimant’s lung function would be considered mildly abnormal, and concluded that this abnormal lung function indicated an obstructive impairment compatible with chronic bronchitis. Dr. Paul testified that claimant suffered with chronic bronchitis, CWP (coal miner’s pneumoconiosis) and COPD (chronic obstructive pulmonary disease) caused by the coal dust environment he encountered during his employment and that claimant could not have any further exposure to the coal mines without endangering his health.
THE TESTIMONY OF DR. JAMES CASTLE
Dr. Castle is a pulmonologist and B-reader who is board certified in internal medicine and in the subspecialty of pulmonary disease. Dr. Castle did not examine the claimant, but reviewed the claimant’s medical records and issued a report. He testified that when he reviewed the claimant’s November 12, 2015 chest x-ray, there were no parenchymal abnormalities consistent with CWP. Dr. Castle found no evidence of CWP or any coal mine dust inducted lung disease on the x-ray. He also testified that the pulmonary function study performed on the claimant was entirely normal, and that according to the AMA Guides to the Evaluation of Permanent Impairment, Sixth Edition, the claimant would fall under Class 0 impairment. Dr. Castle concluded that there was no evidence that claimant suffered from any physiologic abnormality caused by CWP, exposure to coal dust, or any other cause, and that Dr. Paul had erred in calculating the results of claimant’s pulmonary function testing.
THE TESTIMONY OF DR. CHRISTOPHER MEYER
Dr. Meyer has been board certified in radiology since 1992 and has been a B-reader since 1999. He testified that when he reviewed the claimant’s November 12, 2015 x-ray, he found the claimant’s lungs were clear and there was no evidence of CWP.
THE ARBITRATOR’S DECISION
The arbitrator found that claimant had failed to prove by a preponderance of the evidence that he had sustained an occupational disease arising out of and in the course of his employment. The arbitrator concluded that the claimant did not have CWP, and that claimant had failed to prove that he suffered from work-related COPD and chronic bronchitis. Benefits were denied.
THE COMMISSION’S DECISION
The Commission affirmed in part, and reversed in part. The Commission affirmed the arbitrator’s finding that claimant had failed to prove that he suffered from CWP, but decided that he had proven by a preponderance of the evidence that he had sustained disabling conditions of COPD and chronic bronchitis arising out of and in the course of his employment as a coal miner. The Commission acknowledged that Dr. Paul is not a B-reader but recognized Dr. Paul’s long history of treating coal miners for coal mine induced lung disease and his equally long history of interpreting chest x-rays of coal miners. The Commission referenced Dr. Paul’s testimony that coal dust can cause chronic bronchitis and that chronic bronchitis is one of the things that make up the COPD syndrome, and relied on Dr. Paul’s testimony that the claimant had coughing and wheezing during upper respiratory infections which would hang on about two months, and that the claimant would get these infections four or five times per year.
The Commission found Dr. Paul to be more persuasive than Dr. Castle because:
- Dr. Paul has extensive experience in this area of medicine.
- Dr. Paul examined the claimant and took his own history, whereas Dr. Castle did not examine the claimant or take a history from him.
- Dr. Castle did not cite any studies to support his assertion that Dr. Paul’s method of calculating pulmonary function was incorrect.
The Commission found that claimant’s testimony of his prior and current medical and physical condition supported Dr. Paul’s diagnoses of COPD and chronic bronchitis, and based on all the evidence presented, the Commission found that the claimant’s employment as a coal miner exposed him to coal mine dust and other mining substances that resulted in his developing COPD and chronic bronchitis. The Commission concluded that claimant had suffered a 10% loss of use of the person as a whole under section 8(d)(2) of the Illinois Workers’ Compensation Act.
THE CIRCUIT COURT’S DECISION
The circuit court of Williamson County confirmed the Commission’s decision.
THE APPELLATE COURT’S DECISION
The appellate court affirmed the judgment of the circuit court of Williamson County, which confirmed the Commission’s decision. The following is an overview of the appellate court’s analysis:
The Commission’s Finding of COPD and Chronic Bronchitis
The appellate court concluded that the Commission’s finding that the claimant suffered from chronic bronchitis and COPD and that these conditions were related to his employment as a coal miner were not against the manifest weight of the evidence.
It is the function of the Commission to decide questions of fact, judge the credibility of witnesses and resolve conflicting medical evidence, and the interpretation of medical testimony is particularly within the province of the Commission. Therefore, the Commission was entitled to credit Dr. Paul’s opinions over those of Dr. Castle.
Dr. Paul’s diagnoses of chronic bronchitis and COPD were amply supported by the evidence, and Dr. Paul has extensive experience treating coal miners for coal mine induced lung disease and a long history of interpreting chest x-rays and other diagnostic tests performed on coal miners.
Dr. Castle, the doctor hired by American Coal, disagreed with Dr. Paul, but the court noted that Dr. Castle did not examine the claimant and did not take a medical history directly from the claimant.
As for the disagreement on the results of the pulmonary testing, the court noted that the testing in question is not the only way to diagnose obstruction, and Dr. Paul’s opinions were not based solely on the pulmonary testing. Moreover, Dr. Castle acknowledged that having pulmonary function test results within the range of normal does not mean that the lungs are free of any damage, injury or disease.
Whether the Claimant Established a Timely Disablement
The appellate court found that claimant proved a timely disablement under sections 1(e) and 1(f) of the Workers’ Occupational Diseases Act. Because the Commission relied on the opinions of Dr. Paul, it is clear that claimant was disabled within 2 years after the last day of exposure to coal dust in that Dr. Paul testified that claimant’s conditions precluded his return to work as a coal miner.
Permanent Partial Disability Benefits
The appellate court affirmed the Commission’s permanency award. Section 8.1b(b) of the Illinois Workers’ Compensation Act provides that PPD shall be established by a physician’s written report establishing the claimant’s level of impairment and consideration of 5 additional factors:
- the reported level of impairment established by the physician’s written report;
- the occupation of the injured employee;
- the age of the employee at the time of the injury;
- the employee’s future earning capacity;
- evidence of disability corroborated by the treating medical records.
Neither party submitted a physician’s impairment rating. The fact that American Coal’s doctor, Dr. Castle, testified as to an impairment rating is not sufficient to meet the requirements of section 8.1b(a). The Act requires that the report be written, not oral. Furthermore, the report must include appropriate measurements of impairment that include, but are not limited to: loss of range of motion, loss of strength; measured atrophy of tissue mass consistent with the injury; and any other measurements that establish the nature and extent of the impairment. Dr. Castle’s testimony did not include any evaluation or analysis of the factors as required by the Act.
The appellate court found that the Commission engaged in a thoughtful and thorough analysis of the remaining four factors, and was unable to find that a different conclusion was readily apparent.
There are some basic, but important things we can take away from this case:
When having an injured worker examined by an expert, it is important to make sure that the examining physician has an opportunity to meet with the claimant face to face in order to obtain a history and to physically examine the worker. Merely relying on a record review will rarely be sufficient to overcome the opinions of another physician, whether that physician is a treater or a hired expert, if the other physician has an opportunity to physically examine the injured worker and obtain a history face to face as part of the examination.
When deposing an expert, do a thorough job of questioning that expert on their field of expertise and how it applies to the claim. When choosing an expert, make sure that you choose an expert that has experience treating and examining workers in the same industry as the claimant. This will greatly enhance the credibility of your expert, and is very important in a case like this where the treating physician was not deposed.
Impairment ratings have little sway over the permanency that is awarded in a workers’ compensation claim. But if you’re going to have an expert prepare an impairment rating, make sure that it is done correctly. I can’t tell you how many deficient impairment ratings I’ve seen offered into evidence. When requesting the impairment rating, make sure that the physician calculating the impairment rating, and addresses all the requirements as put forth in 8.1b(a).
As always, if you have questions or need to discuss your workers’ compensation case, do not hesitate to contact me for a free consultation.