{ "id": 3364850, "name": "DORA ANN SETZEKORN, Widow of Henry Setzekorn, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Judy Barr-Topinka, State Treasurer and ex officio Custodian of the Rate Adjustment Fund, et al., Appellees)", "name_abbreviation": "Setzekorn v. Industrial Commission", "decision_date": "2004-12-02", "docket_number": "No. 5\u201403\u20140695WC", "first_page": "1049", "last_page": "1056", "citations": [ { "type": "official", "cite": "353 Ill. App. 3d 1049" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "454 N.E.2d 655", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1983, "pin_cites": [ { "page": "657" } ], "opinion_index": 0 }, { "cite": "97 Ill. 2d 382", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5516453 ], "year": 1983, "pin_cites": [ { "page": "387" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/97/0382-01" ] }, { "cite": "335 N.E.2d 488", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1975, "pin_cites": [ { "page": "490" } ], "opinion_index": 0 }, { "cite": "61 Ill. 2d 373", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2965434 ], "year": 1975, "pin_cites": [ { "page": "376" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/61/0373-01" ] }, { "cite": "578 N.E.2d 1043", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1991, "pin_cites": [ { "page": "1050" } ], "opinion_index": 0 }, { "cite": "218 Ill. App. 3d 737", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 8499277 ], "year": 1991, "pin_cites": [ { "page": "747" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/218/0737-01" ] }, { "cite": "548 N.E.2d 1033", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1989, "pin_cites": [ { "page": "1040" }, { "page": "1040" } ], "opinion_index": 0 }, { "cite": "132 Ill. 2d 468", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5589261 ], "weight": 2, "year": 1989, "pin_cites": [ { "page": "483-84" }, { "page": "484" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/132/0468-01" ] }, { "cite": "501 N.E.2d 752", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1986, "pin_cites": [ { "page": "755" }, { "page": "755" } ], "opinion_index": 0 }, { "cite": "150 Ill. App. 3d 216", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3503207 ], "weight": 2, "year": 1986, "pin_cites": [ { "page": "221" }, { "page": "221" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/150/0216-01" ] } ], "analysis": { "cardinality": 668, "char_count": 14805, "ocr_confidence": 0.767, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.09415973672596356 }, "sha256": "b795db722fd9365f3ad3ac46824ceaf6fa049359423307e32821ec50650b7c07", "simhash": "1:4d8bcf9dfbc8fbf3", "word_count": 2323 }, "last_updated": "2023-07-14T16:37:49.624900+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "DORA ANN SETZEKORN, Widow of Henry Setzekorn, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Judy Barr-Topinka, State Treasurer and ex officio Custodian of the Rate Adjustment Fund, et al., Appellees)." ], "opinions": [ { "text": "PRESIDING JUSTICE McCULLOUGH\ndelivered the opinion of the court:\nOn December 26, 1997, claimant, Dora Ann Setzekorn, the surviving spouse of Henry Setzekorn (decedent), filed an application for adjustment of claim pursuant to the Workers\u2019 Occupational Diseases Act (Act) (820 ILCS 310/1 through 27 (West 1996)), seeking benefits from Freeman United Coal Mining Company (Freeman). After a hearing, the arbitrator denied claimant benefits. On review, the Industrial Commission (Commission) affirmed and adopted the arbitrator\u2019s decision. Claimant sought judicial review of the Commission\u2019s decision in the circuit court of Franklin County, which confirmed the Commission\u2019s decision.\nClaimant appeals, arguing that (1) the Commission erred by (a) \u201cfailing to apply res judicata to the issues already determined\u201d in the former case, (b) \u201cfailing to take judicial notice of the Federal Register,\u201d and (c) \u201cignoring the statutory evidentiary presumption concerning pneumoconiosis deaths,\u201d and (2) the Commission\u2019s finding that \u201c[t]he death of *** decedent was not causally connected to his exposure to the hazards of an occupational disease\u201d is against the manifest weight of the evidence. We affirm the circuit court\u2019s order confirming the Commission\u2019s decision.\nDecedent worked as a coal miner for approximately 48 years. He last coal mined on December 26, 1980. In approximately 1985, decedent filed an application for adjustment of claim under the Act asserting that he suffered \u201can occupational disease arising out of and in the course of his employment.\u201d On November 2, 1995, the Commission found decedent disabled and awarded him benefits representing 12.5% loss of a man as a whole.\nOn November 25, 1992, the arbitrator issued a decision in which he found decedent suffered \u201csimple coal workers\u2019 pneumoconiosis [CWP].\u201d The arbitrator noted decedent\u2019s testimony that \u201c[h]e stopped smoking in 1958. Prior to said time he smoked I-V2 packs of cigarettes a day for 25 years.\u201d Dr. Edward Campbell found \u201cno impairment in pulmonary function.\u201d Dr. Parviz Sanjabi found pulmonary function \u201cbasically within the normal range.\u201d Dr. Susan Marshall found \u201cno overall obstruction and the presence of borderline small airways obstruction.\u201d Dr. Marshall noted that \u201c[tjhese small airways changes are most likely due to cigarette smoking in the past.\u201d Dr. William Houser found \u201cevidence of *** mild obstructive impairment *** caused by working in a dusty environment for 28-72 years breathing coal and rock dust and caused by his previous cigarette smoking.\u201d The arbitrator found decedent disabled and awarded him benefits representing 12.5% loss of a man as a whole.\nOn November 23, 1993, the Commission affirmed and adopted the arbitrator\u2019s decision. On July 15, 1994, the circuit court of Franklin County \u201cremanded to the *** Commission for further assessment of the damage to [decedent\u2019s] earning capacity caused by his occupational disease.\u201d On November 2, 1995, the Commission \u201creaffirm[ed] its prior conclusion\u201d noting decedent retired approximately 15 years earlier and had not sought employment.\nIn the present case, decedent sought treatment at Pickneyville Community Hospital on April 16, 1995. He complained of \u201c[c]ongestion for approximately [four] weeks.\u201d Decedent experienced \u201cworsening dyspnea\u201d and was transferred to Missouri Baptist Medical Center on April 21, 1995. Dr. Rhody Eisenstein noted in a discharge summary that decedent was treated for pneumonia and chronic obstructive pulmonary disease (COPD). In addition, a \u201cchest computed tomography scan\u201d suggested a mass and liver metastases. A \u201ccomputed tomography scan guided needle biopsy of the left lung mass revealed adenocarcinoma.\u201d Decedent was not a \u201cgood candidate\u201d for radiation or chemotherapy. He suffered a \u201cfar advanced malignancy.\u201d He was discharged on May 4, 1995, with arrangements for \u201chome hospice care.\u201d\nDecedent died on May 28, 1995. A death certificate identified the cause of death as \u201crespiratory arrest due to or as a consequence of metastatic lung cancer.\u201d\nOn December 26, 1997, claimant filed an application for adjustment of claim under the Act asserting \u201c[djeath caused in whole or in part by inhalation of coal mine dust including but not limited to coal dust, rock dust, fumes [and] vapors.\u201d\nDr. William Houser testified on August 28, 2000, that he is a board-certified pulmonary specialist. He had examined decedent on June 12, 1990. Dr. Houser reviewed medical records concerning decedent\u2019s diagnoses, treatment, and death at the request of claimant. He believed decedent suffered from emphysema, CWP, chronic bronchitis, and COPD. Although decedent smoked approximately \u201ca pack a day for 16 years,\u201d Dr. Houser believed decedent\u2019s smoking was too remote to have been \u201ca factor.\u201d Dr. Houser believed decedent quit smoking in approximately 1950. Dr. Houser opined that the various diagnoses were related to decedent\u2019s employment. Although Dr. Houser acknowledged that \u201c[t]he general consensus is that exposure to coal mine dust is not associated with an increased risk of lung cancer,\u201d he believed that decedent\u2019s \u201cobstructive pulmonary defect was a causative factor in his lung cancer and death.\u201d\nDr. Joseph Renn testified on May 10, 2001, that he is a physician board certified in internal medicine and pulmonary disease. Dr. Renn reviewed medical records concerning decedent\u2019s diagnoses, treatment, and death at the request of Freeman. Dr. Renn believed decedent\u2019s smoking history to be \u201csignificant enough to have resulted in a lung cancer and significant enough to have caused him to have the bullous emphysema and the chronic bronchitis.\u201d\nDr. Renn referenced multiple studies \u201cdone on coal miners and whether or not there is an increase in lung cancer.\u201d Dr. Renn offered:\n\u201cWell, what is significant about them is that they\u2019ve studied both smoking and nonsmoking coal miners and found that there was no greater incidence among the coal miners, either smoking or nonsmoking, than there was in the general either smoking or nonsmoking population. And, therefore, if the incidence is not increased then coal mine dust did not have an additive effect or even a synergistic effect.\u201d\nDr. Renn opined \u201cthe cause of [decedent\u2019s] demise was the metastatic adenocarcinoma of the lung and its effect on his various organ systems.\u201d Further, Dr. Renn stated that \u201c[t]here was no other cause that either was a contributing factor or even a significant cause of that method of his demise.\u201d\nFollowing the hearing, the arbitrator issued a decision in which he found decedent\u2019s death \u201cnot causally connected to his exposure to the hazards of an occupational disease.\u201d The Commission affirmed and adopted the arbitrator\u2019s decision. Claimant sought judicial review of the Commission\u2019s decision in the circuit court of Franklin County. The circuit court confirmed the Commission\u2019s decision finding that it was not against the manifest weight of the evidence. This appeal followed.\nClaimant first argues that the Commission erred by \u201cfailing to apply res judicata to the issues already determined\u201d in the former case.\nSection 19(j) of the Act provides:\n\u201cWhenever in any proceeding testimony has been taken or a final decision has been rendered, and after the taking of such testimony or after such decision has become final, the employee dies, then in any subsequent proceeding brought by the personal representative or beneficiaries of the deceased employee, such testimony in the former proceeding may be introduced with the same force and effect as though the witness having so testified were present in person in such subsequent proceedings and such final decision, if any, shall be taken as final adjudication of any of the issues which are the same in both proceedings.\u201d 820 ILCS 310/ 19(j) (West 1996).\nClaimant argues in her initial brief that the Commission \u201cpreviously awarded decedent benefits *** due to occupational lung disease.\u201d Therefore, \u201cthe conclusion that mining caused obstructive lung disease was litigated.\u201d\nIn the former case, the Commission found decedent suffered from an occupational lung disease in the form of CWP and awarded decedent benefits. The Commission did not find decedent suffered from \u201cobstructive lung disease.\u201d Drs. Campbell and Sanjabi found no impairment. Dr. Marshall found \u201cborderline\u201d obstruction likely due to cigarette smoking. Only Dr. Houser found \u201cevidence of *** mild obstructive impairment *** caused by working in a dusty environment for 28-1/a years breathing coal and rock dust and caused by his previous cigarette smoking.\u201d\nClaimant next argues that the Commission erred by \u201cfailing to take judicial notice of the Federal Register and *** of the evidence indicating that coal mine dust causes obstruction and impairing emphysema.\u201d Claimant cites portions of the Federal Register. The record does not show that the Commission failed to take judicial notice of the portions of the Federal Register claimant cited. The Commission\u2019s decision need not recite all of the underlying evidence. Swift & Co. v. Industrial Comm\u2019n, 150 Ill. App. 3d 216, 221, 501 N.E.2d 752, 755 (1986). A presumption exists that the Commission considered all evidence in reaching its decision. Swift, 150 Ill. App. 3d at 221, 501 N.E.2d at 755.\nClaimant next argues that the Commission erred by \u201cignoring the statutory evidentiary presumption concerning pneumoconiosis deaths.\u201d\nSection 1 of the Act provides:\n\u201cIf a deceased miner was employed for 10 years or more in one or more coal mines and died from a respirable disease there shall, effective July 1, 1973, be a rebuttable presumption that his or her death was due to pneumoconiosis.\u201d 820 ILCS 310/l(d) (West 1996).\nClaimant must show that the disease which caused decedent\u2019s death was a \u201crespirable disease\u201d and that the disease reported suggests a reasonable possibility of death due to pneumoconiosis. Claimant states that \u201cthere can be no question that lung cancer is a respirable disease.\u201d In support of her statement, claimant cites to a definition of occupational disease referenced in the Illinois Pension Fund (40 ILCS 5/6 \u2014 112 (West 2002)) and specific to firemen, and to a section of the Civil Administrative Code of Illinois, Department of Public Health, entitled, \u201cCancer, heart disease, and other chronic diseases\u201d (20 ILCS 2310/2310 \u2014 355 (West 2002)). Claimant concludes, \u201csince [claimant] had lung cancer and CWFj there is a presumption that his death was due to CWE\u201d\nThe Act does not define \u201crespirable disease.\u201d Further, the Act does not provide that lung cancer is a chronic lung disease as a matter of law. We note decedent\u2019s lung cancer was diagnosed on April 28, 1995, and decedent died on May 28, 1995. Claimant failed to show that the disease which caused decedent\u2019s death was a \u201crespirable disease\u201d and that the disease reported suggests a reasonable possibility of death due to pneumoconiosis.\nMoreover, the death certificate identified the cause of death as \u201crespiratory -arrest due to or as a consequence of metastatic lung cancer.\u201d Dr. Houser acknowledged that \u201c[t]he general consensus is that exposure to coal mine dust is not associated with an increased risk of lung cancer.\u201d Dr. Renn believed decedent\u2019s smoking history to be \u201csignificant enough to have resulted in a lung cancer and significant enough to have caused him to have the bullous emphysema and the chronic bronchitis.\u201d Dr. Renn believed \u201cthe cause of [decedent\u2019s] demise was the metastatic adenocarcinoma of the lung and its effect on his various organ systems.\u201d Further, Dr. Renn stated that \u201c[t]here was no other cause that either was a contributing factor or even a significant cause of that method of his demise.\u201d A rebuttable presumption is one that \u201cmay be overcome by the introduction of contrary evidence.\u201d Black\u2019s Law Dictionary 1224 (8th ed. 2004). The Commission did not \u201cignorfe] the statutory evidentiary presumption concerning pneumoconiosis deaths.\u201d\nClaimant next argues that the Commission\u2019s finding that \u201c[t]he death of *** decedent was not causally connected to his exposure to the hazards of an occupational disease\u201d is against the manifest weight of the evidence.\nIt is the Commission\u2019s province to judge the credibility of witnesses, to draw reasonable inferences from the testimony and to determine what weight the testimony is to be given. Paganelis v. Industrial Comm\u2019n, 132 Ill. 2d 468, 483-84, 548 N.E.2d 1033, 1040 (1989). Further, it is the Commission\u2019s province to resolve conflicts in medical evidence. Amoco Oil Co. v. Industrial Comm\u2019n, 218 Ill. App. 3d 737, 747, 578 N.E.2d 1043, 1050 (1991). The Commission\u2019s decision on a question of fact will not be disturbed unless it is contrary to the manifest weight of the evidence. Paganelis, 132 Ill. 2d at 484, 548 N.E.2d at 1040.\nWhere the inferences drawn by the Commission are reasonable, a court of review will not discard them merely because other inferences could be drawn from the evidence. Warren v. Industrial Comm\u2019n, 61 Ill. 2d 373, 376, 335 N.E.2d 488, 490 (1975). It is not the prerogative of the reviewing court to reweigh the evidence and substitute its judgment for that of the Commission. A reviewing court is not the trier of fact. Likewise, it is for the Commission to decide which of two conflicting opinions should be accepted. Material Service Corp. v. Industrial Comm\u2019n, 97 Ill. 2d 382, 387, 454 N.E.2d 655, 657 (1983).\nIn this case, the Commission affirmed and adopted the arbitrator\u2019s decision. The arbitrator noted Dr. Renn\u2019s testimony that decedent\u2019s \u201ctobacco history was significant enough to result in a lung cancer, bul-lous emphysema and chronic bronchitis.\u201d Dr. Renn concluded that CWR COPD, and emphysema did not hasten decedent\u2019s death. \u201cThe cause of his demise was the metastatic adenocarcinoma of the lung and its affect [sic] on his various organ systems.\u201d Further, the arbitrator noted that Dr. Houser \u201cadmitted that the general consensus is that exposure to coal mine dust is not associated with an increased risk of lung cancer.\u201d The Commission\u2019s finding that \u201c[t]he death of *** decedent was not causally connected to his exposure to the hazards of an occupational disease\u201d is not against the manifest weight of the evidence.\nWe affirm the circuit court\u2019s order confirming the Commission\u2019s decision.\nAffirmed.\nHOFFMAN, CALLUM, HOLDRIDGE, and GOLDENHERSH, JJ., concur.", "type": "majority", "author": "PRESIDING JUSTICE McCULLOUGH" } ], "attorneys": [ "Harold B. Gulley, Jr., of Gulley & Wissore Lawyers, of Raleigh, for appellant.", "Kenneth F. Werts and Julie A. Webb, both of Craig & Craig, of Mt. Vernon, for appellees." ], "corrections": "", "head_matter": "DORA ANN SETZEKORN, Widow of Henry Setzekorn, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Judy Barr-Topinka, State Treasurer and ex officio Custodian of the Rate Adjustment Fund, et al., Appellees).\nFifth District (Industrial Commission Division)\nNo. 5\u201403\u20140695WC\nOpinion filed December 2, 2004.\nHarold B. Gulley, Jr., of Gulley & Wissore Lawyers, of Raleigh, for appellant.\nKenneth F. Werts and Julie A. Webb, both of Craig & Craig, of Mt. Vernon, for appellees." }, "file_name": "1049-01", "first_page_order": 1069, "last_page_order": 1076 }