dissenting:
I respectfully dissent.
The basic lynchpin in this case, as reflected by the decision of both the Industrial Commission (Commission) and the majority in this appeal, is the reliance on Dr. Peter Tuteur’s conclusions concerning lack of any coal worker’s pneumoconiosis (CWP) and, more specifically, the basis of this conclusion, his use and reliance upon his reading of a CT scan. On the basis partially of Dr. Jones’s notes indicating numerous visits with findings of claimant’s lungs being clear and Dr. Tuteur’s testimony, the Commission determined that Dr. Houser’s testimony was “not supported by the medical evidence taken as a whole and is speculative at best.” This conclusion ignores the findings of Dr. Houser from his X-ray analysis and the finding of Dr. Houser’s radiologist, a qualified B reader, and relies instead upon Dr. Tuteur’s conclusion based upon his reading of CT scans. Since there are no standards for such readings of CT scans, as Dr. Tuteur admits, and evidence exists in the record that a finding of clear lungs could be found with stages of CWP the conclusion of the Commission is speculative, not Dr. Houser’s.
Dr. Houser testified that based upon his reading of the X rays and that of his radiologist, a qualified B reader, and the nature of CWP as a chronic and progressive disease, claimant had CWP and had it at the time of his last employment by respondent. The fact that Dr. Houser’s examination occurred 3V2 years after the mine closed would not defeat this diagnosis. Dr. Houser also testified, and Dr. Tuteur admits, that there are no standards in existence for use of CT scans to diagnose CWP and that there are no recognized criteria for using such scans to determine the accuracy of competing X-ray interpretations, as we find in this case. (Dr. Wiot read the X rays and came to the conclusion that claimant did not have CWP) X rays, in contrast to CT scans, are diagnosed by comparison with International Labor Organization standard X-ray films, and in this case, it was done by a qualified B reader. This type of analysis is, by its nature, objective and one using objective standards. Dr. Tuteur admitted that there are no standards for reading CT scans as there are for X rays in determining CWP; there is, therefore, a greater application of subjective judgment as opposed to objective comparison and analysis of X rays.
The majority frames the question of Dr. Tuteur’s reliance on CT scans in terms of an evidentiary question, specifically admissibility. While I have no quarrel with the majority’s conclusion on this point, this analysis fails to deal with a more serious question: whether the Commission’s reliance on Dr. Tuteur’s opinion, essentially grounded on his CT readings for which there are no objective standards, is an appropriate basis for its findings when the competing evidence is based on X-ray analysis and B reader conclusions. The Commission, in effect, relied on subjective readings of a CT scan without recognized objective standards over objective interpretation of X rays by B readers and physicians using objective standards. The Commission claims that the latter’s conclusions were speculative. In reality, the Commission’s findings were speculative and against the manifest weight of the evidence. This speculation contrary to the manifest weight of the evidence infected both the Commission’s findings as to the existence of CWP and the question of its existence within the two-year statutory period.
The rebuttable presumption that a miner’s pneumoconiosis arose from his employment if he was employed for 10 years or more in the mines (820 ILCS 310/l(d) (West 1996)) was not rebutted in this case. Likewise, disablement, defined as impairment or partial impairment of the body or being rendered unable to earn full wages in the occupation in which claimant worked when last exposed to the hazards of the occupational disease (820 ILCS 310/l(e) (West 1996)), was shown by the objectively reliable evidence in this case. As noted above, the Commission’s finding to the contrary was against the manifest weight of the evidence.
While Dr. Houser’s examination occurred approximately 3V2 years after claimant’s last exposure to coal dust, this lapse of time is immaterial in a situation such as this. As noted in this record and consistently noted in opinions by this court (Zeigler Coal Co. v. Industrial Comm’n, 237 Ill. App. 3d 213, 604 N.E.2d 481 (1992); Monterey Coal Co. v. Industrial Comm’n, 241 Ill. App. 3d 386, 609 N.E.2d 339 (1992)), CWP is a chronic, slowly progressive lung disease. The finding of the Commission that there was no disablement, given the nature of CWP, is contrary to the manifest weight of the evidence, especially considering the Commission’s reliance on Dr. Tuteur’s opinions.
Given that the Commission’s findings are based on Dr. Tuteur’s conclusions, which in turn are based on CT scan reading without objective standards versus Dr. Houser’s and his B reader’s reading of chest X rays with objective standards, the Commission’s decision was against the manifest weight of the evidence. The Commission chose to rely on essentially subjective conclusions, readings without objective standards and subject to subjective interpretations, as opposed to objective analysis based on internationally promulgated objective standards and, accordingly, reached a decision contrary to the manifest weight of the evidence and contrary to law. The arbitrator’s analysis of the instant case was correct, and I would reinstate his decision.
HOLDRIDGE, J., joins in this dissent.