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Industrial Commission Division
Filed:                                            

No. 5-03-0150WC

IN THE
APPELLATE COURT OF ILLINOIS
FIFTH JUDICIAL DISTRICT
INDUSTRIAL COMMISSION DIVISION

JUSTICE HOFFMAN delivered the opinion of the court:

The claimant, Allan Docksteiner, appeals from an order of thecircuit court confirming a decision of the Industrial Commission(Commission) to deny him benefits under the Workers' OccupationalDiseases Act (Act) (820 ILCS 310/1 et seq. (West 1996)), which hesought for having allegedly contracted coal workers' pneumoconiosis(CWP) while in the employ of Peabody Coal Company (Peabody). Forthe reasons which follow, we affirm.

The following factual recitation is taken from the evidencepresented at the arbitration hearing.

The claimant worked as a coal miner for approximately 25 yearsduring which time he was exposed to, and breathed, coal mine dust. According to the claimant, he bid for a "top job" in 1971 becausehe was having trouble breathing. He stated that he was coughing,spitting up, and experienced shortness of breath.

The claimant testified that, while working as a miner, hesought treatment for his breathing problems with his familyphysician, Dr. Larry Jones, but could not remember precisely whenthat treatment began. The claimant stated that Dr. Jonesprescribed a walking regimen. He admitted, however, that Dr. Jonesdid not prescribe any medication for his alleged breathingproblems. Dr. Jones's records for the period from 1980 through1996 were introduced into evidence by Peabody. Those records donot reflect any treatment for chronic pulmonary complaints. Rather, as the Commission observed, Dr. Jones's office notes forvisits by the claimant from 1981 through 1996 repeatedly containthe notation "Lungs are clear."

The claimant was employed by Peabody at its Eagle No. 2 mine. On July 12, 1993, Peabody closed that mine and the claimant has notworked as a miner since. The claimant testified that he wasexperiencing difficulty breathing when he last worked as a miner.

At the suggestion of his attorney, the claimant saw Dr.William Houser, a board certified pulmonary specialist. Dr. Houserexamined the claimant on only one occasion, January 7, 1997. Onthat date, Dr. Houser ordered x-rays taken of the claimant's chest. The radiologist who interpreted those x-rays, Dr. Sam Baker, notedsmall rounded opacities in the mid and lower lung zones consistentwith pneumoconiosis. At his evidence deposition, Dr. Housertestified that he diagnosed the claimant as suffering from CWP,category 1/1; mild chronic obstructive pulmonary disease (COPD);hypertension; arteriosclerotic heart disease; status post-myocardial infarction; diabetes mellitus; hypercholesterolemia; anddegenerative arthritis. He opined that the claimant sufferedoccupational exposure to coal dust for approximately 25 years andthat the claimant's CWP is related to his employment as a coalminer. Dr. Houser testified that, since the claimant suffers fromCWP and COPD, he should avoid any additional exposure to coal androck dust. According to Dr. Houser, the claimant's CWP would havebeen present when he left mining.

On March 4, 1997, the claimant filed an application foradjustment of claim under the Act asserting that he suffered"Shortness of Breath & Exercise Intolerance" as a consequence ofthe "[i]nhallation of coal mine dust including but not limited tocoal dust, rock dust, fumes & vapors for a period in excess of 25years."

At the request of the attorneys representing Peabody, theclaimant's chest x-ray taken on January 7, 1997, was reviewed byDr. Jerome Wiot, a professor of radiology at the University ofCincinnati. In a letter dated January 26, 1998, Dr. Wiot reportedthat:

"There is no evidence of coal worker's pneumoconiosis. This patient has atherosclerotic change in the thoracicaorta, but the chest is otherwise unremarkable."

Dr. Peter G. Tuteur, a physician board certified in internalmedicine and pulmonary disease, examined the claimant on July 14,1998, at the request of Peabody. On that date, Dr. Tuteur orderedan x-ray of the claimant's chest, a CT scan, and a pulmonaryfunction study. A report of the CT scan written by Dr. RichardSlone states that no interstitial lung disease was seen on theimages. A report of the claimant's chest x-ray written by Dr.Harvey Glazer states that minimal linear atelectasis was noted inthe left base and that the lungs were otherwise clear. Dr. Tuteurtestified that, in addition to the radiologists, he interpretedboth the chest x-ray and CT scan. He stated that, based upon hisexamination of the claimant, his review of the claimant's chest x-ray and CT scan and the results of the pulmonary function study,there was "no physiologically significant or radiographicallysignificant pulmonary process." According to Dr. Tuteur, theclaimant "does not have radiographically significant coal workers'pneumoconiosis." In his written report, Dr. Tuteur noted that,although the claimant is "clearly disabled from returning to workin the coal mines, this disability is in no way related in whole orin part to his coal mine dust exposure."

On February 9, 2000, Dr. Michael S. Alexander, a physicianboard certified in diagnostic radiology and a certifiedpneumoconiosis B reader, reviewed the claimant's January 7, 1997,chest x-ray. Dr. Alexander issued a report in which he recorded animpression of: CWP, category p/q, 1/1, pi; and bilateral chestwall pleural thickening (mild).

Approximately one year prior to the arbitration hearing, theclaimant suffered a stroke. During the hearing, the claimanttestified that, in addition to his breathing problems, he suffersfrom diabetes, high blood pressure, and depression.

Following the hearing, the arbitrator issued a decision inwhich he found Dr. Houser to be the most credible medical witness. The arbitrator also found, inter alia, that: the claimant wasregularly exposed to coal dust while in the employ of Peabody; theclaimant suffers from CWP; the claimant is entitled to thestatutory presumption that his CWP arose out of his employment (see820 ILCS 310/1(d) (West 1996)); the claimant's occupational diseasecaused disablement within two years of his last exposure; theclaimant gave Peabody adequate notice of his claimed occupationaldisease; and the claimant timely filed his application foradjustment of claim. The arbitrator concluded that the claimant ispermanently disabled to the extent of 20% of a "person as a whole"and awarded him benefits in the sum of $384.73 per week for aperiod of 100 weeks pursuant to section 8(d)2 of the Workers'Compensation Act (820 ILCS 305/8(d)2 (West 1996)). See 820 ILCS310/7 (West 1996).

Both the claimant and Peabody sought a review of thearbitrator's decision before the Commission. The Commissionreversed the arbitrator's decision and denied the claimant anybenefits under the Act, finding that he failed to prove disablementas a result of an occupational disease within two years of his lastdate of exposure as required by section 1(f) of the Act (820 ILCS310/1(f) (West 1996)). In its decision, the Commissionspecifically relied upon Dr. Tuteur's opinion that the claimant isnot suffering from CWP. The Commission found Dr. Houser's opinionthat the claimant suffered from CWP on his last day of work to bespeculative and not supported by the medical evidence.

The claimant sought judicial review of the Commission'sdecision in the circuit court of Gallatin County. The circuitcourt confirmed the Commission's decision, finding that it was notagainst the manifest weight of the evidence, and this appealfollowed.

On an evidentiary point, the claimant argues that theCommission erred in considering the results of his CT scan. Theclaimant asserts that "[p]art of the Commission's reason forreversing the arbitrator was its consideration of the CT scanperformed at the request of Dr. Tuteur." According to theclaimant, since Dr. Tuteur did not testify that a CT scan is thetype of data customarily used by physicians to diagnose CWP, histestimony concerning the CT scan should not have been considered bythe Commission. We disagree.

The claimant's objection to the Commission's consideration ofDr. Tuteur's testimony concerning the results of the CT scanappears to be based upon a lack of foundation. However, theclaimant interposed no such objection either during Dr. Tuteur'sevidence deposition or before the arbitrator. It is true that theclaimant objected to the introduction into evidence of Dr. Slone'swritten report on hearsay grounds, an objection that was overruledby the arbitrator, but he never objected to Dr. Tuteur's relianceupon the CT scan in formulating his opinions. When Peabody'sattorney moved the admission into evidence of several documents,including Dr. Tuteur's three-page written report dated July 14,1998, Dr. Slone's written report of the claimant's CT scan, Dr.Glazer's written report of the claimant's chest x-ray and thereport of the claimant's pulmonary function study, the claimant'sattorney interposed a hearsay objection. Almost immediatelythereafter he clarified the objection by stating:

MR. WISSORE: "At this time I want to make myobjection to the attachment of the CT report [Dr. Slone'sreport] and the x-ray report [Dr. Glazer's report] andthe basis of my objection is hearsay and I have noobjection to the remainder, the PFT's [pulmonary functiontest] or the narrative report [Dr. Tuteur's writtenreport]."

The claimant's attorney never objected to Dr. Tuteur's testimonyregarding his independent interpretation of the CT scan or hisreliance upon the CT scan in formulating his opinion that theclaimant does not suffer from CWP. Dr. Tuteur's written report,which was admitted into evidence without objection from theclaimant, specifically states:

"CT scan of the thorax was performed and included highresolution cuts. There is no evidence whatsoever of anyinterstitial pulmonary process. There is no evidence ofcoal workers' pneumoconiosis."

Having failed to object during Dr. Tuteur's evidencedeposition or during the arbitration hearing, the claimant haswaived any objection to the Commission's consideration of Dr.Tuteur's testimony regarding his interpretation of the CT scan orhis reliance thereon in formulating his opinion that the claimantdoes not suffer from CWP. Caradco Window & Door v. IndustrialComm'n, 86 Ill. 2d 92, 97, 427 N.E.2d 81 (1981).

Next, the claimant contends that section 1(f) of the Act (820ILCS 310/1(f) (West 1996)), which provides that no compensationshall be payable on account of any occupational disease unlessdisablement occurs within two years after the last exposure, isinapplicable to CWP claims. The claimant argues that section 1(f)conflicts with section 6(c) of the Act (820 ILCS 310/6(c) (West1996)), which gives a miner five years after his last exposure tofile an application for compensation based upon a disability causedby CWP. He asserts that "[i]t makes little sense to give aclaimant five (5) years to file his claim, but to bar it if heproves no disablement within two (2) years." According to theclaimant, section 1(f) must be read in light of section 6(c) andlimited to claims which have a "compatible limitations period." However, the identical argument was made to this court and rejectedin Plasters v. Industrial Comm'n, 246 Ill. App. 3d 1, 615 N.E.2d1145 (1993). See also Forsythe v. Industrial Comm'n, 263 Ill. App.3d 463, 468-69, 636 N.E.2d 56 (1994).

In Plasters, we held that sections 1(f) and 6(c) should beread together to effectuate the legislative intent. The subjectmatter of each provision is different. Compliance with section1(f) is a condition precedent to recovery; whereas, section 6(c) isa statute of limitations. Plasters, 246 Ill. App. 3d at 7-8. Aswe noted in Plasters, "the fact that a claimant must becomedisabled from an occupational disease within two years after hislast exposure but has three more years to file a claim allows theclaimant time to prepare for any administrative or legal action hemay decide to take." Plasters, 246 Ill. App. 3d at 7-8. Simplyput, there is no conflict between sections 1(f) and 6(c) of theAct, and section 1(f) is applicable to claims based upon CWP. Plasters, 246 Ill. App. 3d at 8; Forsythe, 263 Ill. App. 3d at 468-69.

Finally, the claimant asserts that the Commission's findingthat he failed to prove disablement due to an occupational diseasewithin two years of the date of his last exposure as required bysection 1(f) of the Act is against the manifest weight of theevidence. In support of his contention in this regard, theclaimant argues that the Commission erred when it: (1)characterized Dr. Houser's testimony concerning timely disablementas "speculative at best, and therefore not entitled to any weight;" and (2) relied upon Dr. Jones's records to reject Dr. Houser'sopinions.

It is the function of the Commission to decide questions offact, judge the credibility of witnesses, and resolve conflictingmedical evidence. O'Dette v. Industrial Comm'n, 79 Ill. 2d 249,253, 403 N.E.2d 221 (1980). The Commission's determination on aquestion of fact will not be disturbed on review unless it isagainst the manifest weight of the evidence. Orsini v. IndustrialComm'n, 117 Ill. 2d 38, 44, 509 N.E.2d 1005 (1987). For a findingof fact to be contrary to the manifest weight of the evidence, anopposite conclusion must be clearly apparent. Caterpillar, Inc. v.Industrial Comm'n, 228 Ill. App. 3d 288, 291, 591 N.E.2d 894(1992).

In this case, the Commission considered, among other evidence,the opinions of Dr. Houser, Dr. Jones's medical records, theconflicting interpretations of the claimant's January 7, 1997,chest x-ray by Drs. Alexander and Wiot, and the opinions of Dr.Tuteur. The Commission resolved the conflicting medical evidenceby relying upon the opinions of Dr. Tuteur to the effect that theclaimant is not suffering from CWP and, therefore, could not havebeen disabled as a result of CWP during the two years following hislast exposure to coal dust. Although we might not have reached thesame conclusion as the Commission, we cannot say that its decisionis against the manifest weight of the evidence.

For the foregoing reasons, we affirm the circuit court's orderconfirming the Commission's decision.

Affirmed.

McCULLOUGH, P.J., and CALLUM, J., concur.

I respectfully dissent.

The basic lynchpin in this case, as reflected by the decisionof both the Industrial Commission (Commission) and the majority inthis appeal, is the reliance on Dr. Peter Tuteur's conclusionsconcerning lack of any coal worker's pneumoconiosis (CWP) and, morespecifically, the basis of this conclusion, his use and relianceupon his reading of a CT scan. On the basis partially of Dr.Jones's notes indicating numerous visits with findings ofclaimant's lungs being clear and Dr. Tuteur's testimony, theCommission determined that Dr. Houser's testimony was "notsupported by the medical evidence taken as a whole and isspeculative at best." This conclusion ignores the findings of Dr.Houser from his x-ray analysis and the finding of Dr. Houser'sradiologist, a qualified B reader, and relies instead upon Dr.Tuteur's conclusion based upon his reading of CT scans. Sincethere are no standards for such readings of CT scans, as Dr. Tuteuradmits, and evidence exists in the record that a finding of clearlungs could be found with stages of CWP, the conclusion of theCommission is speculative, not Dr. Houser's.

Dr. Houser testified that based upon his reading of the x-raysand that of his radiologist, a qualified B reader, and the natureof CWP as a chronic and progressive disease, claimant had CWP andhad it at the time of his last employment by respondent. The factthat Dr. Houser's examination occurred 3