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

2013 IL App (5th) 120143

CONSOLIDATION COAL COMPANY, Appellant,

v.THE ILLINOIS WORKERS' COMPENSATION COMMISSION et al. (Roy Yanez, Appellee).

NO. 5-12-0143WC

APPELLATE COURT OF ILLINOIS FIFTH DISTRICT WORKERS' COMPENSATION COMMISSION DIVISION

Dated: August 7, 2013

NOTICE

Decision filed 08/07/13. The text of this decision may be changed or corrected prior to the filing of a Petition for Rehearing or the disposition of the same.

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 Jefferson County

No. 11MR48

Honorable Timothy R. Neubauer Judge Presiding.

JUSTICE HARRIS delivered the judgment of the court.

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

ORDER

¶ 1 Held: The Commission's finding (1) of jurisdiction over claimant's workers' compensation claim was not against the manifest weight of the evidence and (2) that claimant suffered injuries as a result of exposure to an occupational disease was not against the manifest weight of the evidence.

¶ 2 On October 9, 2007, claimant, Roy Yanez, filed an application for adjustment of claim pursuant to the Occupational Diseases Act (Act) (820 ILCS 310/1 to 27 (West 2006)), seeking benefits from the employer, Consolidation Coal Company. After a hearing, an arbitrator denied claimant benefits by reason of a lack of jurisdiction. Claimant filed a petition for review of the arbitrator's decision before the Illinois Workers' Compensation Commission (Commission). On review, a majority of the Commission reversed the arbitrator's decisionfinding (1) jurisdiction proper and (2) claimant proved he suffered injuries as a result of exposure to an occupational disease. The Commission awarded claimant benefits pursuant to section 8(d)(2) of the Workers' Compensation Act (Compensation Act) (820 ILCS 305/8(d)(2) (West 2006)), for permanent partial disability to the extent of 5% of the man as a whole. Thereafter, the employer filed a petition seeking judicial review in the circuit court of Jefferson County. On March 15, 2012, the circuit court confirmed the Commission's decision.

¶ 3 The employer appeals, arguing the Commission's finding (1) of jurisdiction over claimant's workers' compensation claim is against the manifest weight of the evidence and (2) that claimant suffered injuries as a result of exposure to an occupational disease is against the manifest weight of the evidence. We affirm.

¶ 4 I. BACKGROUND

¶ 5 The following factual recitation is taken from the evidence presented at the arbitration hearing on February 4, 2010. The 59-year-old claimant worked in above-ground and below-ground coal mining for approximately 23 years where he was regularly exposed to coal dust. Claimant began work for the employer on October 31, 1978. Claimant testified that he began experiencing shortness of breath in approximately 1999 and developed a dry cough within the past three or four years. Claimant worked at the Wheeler Creek and Rend Lake mines in Illinois until July 8, 2002, when employer closed the Rend Lake mine and laid claimant off from work.

¶ 6 The employer, as a member of the Bituminous Coal Operators Association, and the United Mine Workers of America (of which claimant is a member) entered into a collective bargaining agreement providing in part for layoff and recall procedures. The agreement providesthat an employer fill certain vacancies with "classified laid off Employee's [sic] on the panels of the Employer's operations." Further, the agreement directs an employer to "review the list of Employees on the panel from other mines and the Employer shall recall to employment Employees on layoff status in *** order." The employer recalled claimant for a job at its Emery mine in Utah. Claimant completed a required physical examination and began work on March 13, 2003, and employer laid claimant off from work on September 2, 2003. Claimant returned to his home in Bluford, Illinois.

¶ 7 The employer next advised claimant by letter of a work opportunity at its Loveridge mine in West Virginia. Claimant spoke with a manager of the employer at a location in Mt. Vernon, Illinois, concerning the position at Loveridge mine. Claimant confirmed his interest in working at the mine and immediately began completing the various tasks required by employer for claimant to begin work. Claimant began work as a longwall mechanic/electrician at the mine on March 10, 2004, and continued to work until September 12, 2006, when he suffered an injury to his knee.

¶ 8 Thomas Hudson testified that he was a supervisor of human resources for employer. He notified claimant of the position at Loveridge mine. According to Hudson, claimant "could have turned us down, or he could have agreed to go for a physical and come to work for us." The employer provided recalled employees approximately five days to accept or decline a position. Even if claimant chose not to work at the Loveridge mine, he retained his right of recall to employment at mines he identified on a panel form. Further, claimant could renew his rights at the Loveridge mine if employer laid claimant off from work again and claimant completed a new panel form that included Loveridge mine. Hudson stated that claimantbegan work for the employer on March 15, 1979, at the Wheeler Creek mine in Illinois. Hudson agreed that whenever claimant worked at a mine owned by the employer, he was an employee of the employer. Claimant had not been terminated from his employment with the employer.

¶ 9 Claimant testified that he told his supervisor at the Loveridge mine that he was having breathing problems within 45 days of his last exposure. Claimant started smoking when he was 18 or 19 and quit in 1998 or 1999. He smoked approximately 1/2 a pack of cigarettes a day. Claimant testified he currently uses an inhaler that was prescribed by an emergency room physician at Good Samaritan Hospital, Mt. Vernon, Illinois.

¶ 10 Medical records from Monongalia General Hospital in West Virginia indicated claimant underwent chest x-rays on October 7, 2005, and September 12, 2006. According to the medical notes, the 2005 film showed good lung expansion, "no infiltrates or congestive change," and normal cardio-vascular structures. The final impression stated: "Negative portable chest." The 2006 x-ray revealed no acute infiltration in the visualized lung fields. The final impression stated: "No evidence of acute process."

¶ 11 On October 9, 2007, claimant filed an application for adjustment of claim pursuant to the Act, seeking benefits from the employer. Claimant alleged an accident date of September 12, 2006, his last day of employment at the Loveridge mine. Claimant sought benefits for "pneumoconiosis, heart, lungs, exercise intolerance, and breathing impairment" caused by exposure to coal, coal dust, rock dust, fumes and vapors during the course of his employment, in excess of 20 1/2 years.

¶ 12 Claimant submitted the deposition and report of board certified pulmonologist and B-reader, Dr. Robert Cohen. Dr. Cohen examined claimant for purposes of his federal black lungclaim on June 28, 2008. Claimant reported shortness of breath upon exertion for approximately 10 years and a dry cough. Dr. Cohen reviewed claimant's chest x-ray taken on March 10, 2008. Dr. Cohen diagnosed claimant with coal workers' pneumoconiosis (CWP) at a 1/0 ILO classification level, resulting from 23 years of exposure to coal mine dust. He recommended that claimant not return to mining.

¶ 13 The employer submitted the report and deposition testimony of board certified pulmonologist and B-reader, Dr. Byron Westerfield. Dr. Westerfield reviewed claimant's chest film dated March 10, 2008, and opined claimant did not have CWP and could return to work as a miner.

¶ 14 After the hearing, the arbitrator denied claimant benefits by reason of a lack of jurisdiction. Specifically, the arbitrator found "the last acts necessary to complete the employment contract occurred in West Virginia" and therefore, Illinois jurisdiction was not proper.

¶ 15 Claimant filed a petition for review of the arbitrator's decision before the Commission. On review, a majority of the Commission reversed the arbitrator's decision finding jurisdiction proper where "the contract of employment between Petitioner and Respondent was formed in Illinois." Further, the Commission found claimant proved he suffered injuries as a result of exposure to an occupational disease and awarded claimant benefits. Thereafter, the employer filed a petition seeking judicial review in the circuit court of Jefferson County. On March 15, 2012, the circuit court confirmed the Commission's decision and this appeal followed.

¶ 16 II. ANALYSIS

¶ 17 The employer argues that the Commission's finding of jurisdiction over claimant'sworkers' compensation claim is against the manifest weight of the evidence. Specifically, the employer argues claimant's employment was not continuous from 1978 to 2006 due to his various layoffs and thus, the original Illinois employment contract was broken. Thereafter, the employer argues, the last acts necessary to give validity to the contract for hire at the Loveridge mine were effected in West Virginia, not Illinois.

¶ 18 Section 1(b)(2) of the Act defines "employee" as:

"Every person in the service of another under any contract of hire, express or implied, oral or written, who contracts an occupational disease while working in the State of Illinois, or who contracts an occupational disease while working outside of the State of Illinois but where the contract of hire is made within the State of Illinois, and any person whose employment is principally localized within the State of Illinois, regardless of the place where the disease was contracted or place where the contract of hire was made ***. An employee *** under this Act who shall have a cause of action by reason of an

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