2014 IL App (5th) 130151WC Opinion filed June 9, 2014

___________________________________________________ ___________________________ IN THE

APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT

WORKERS' COMPENSATION COMMISSION DIVISION

___________________________________________________ ___________________________ JACK CARTER, ) Appeal from the Circuit Court ) of the Twentieth Judicial Circuit, ) Randolph County, Illinois. Appellant, ) ) v. ) Appeal No. 5-13-0151WC ) Circuit No. 11-MR-25 ) THE ILLINOIS WORKERS' COMPENSATION ) Honorable COMMISSION et al. (Old Ben Coal Co./ ) Richard A. Brown, Horizon Natural Resources, Appellee). ) Judge, Pre siding.

___________________________________________________ ___________________________ PRESIDING JUSTICE HOLDRIDGE delivered the judgment of the court, with opinion. Justices Hoffman, Hudson, Harris, and Stewart concu rred in the judgment and opinion.

___________________________________________________ ___________________________ OPINION ¶ 1 The claimant, Jack Carter, filed a claim against Old Ben Coal Co./Horizon Natural Resources (the employer) under the Workers' Occupat ional Diseases Act (the Act) (820 ILCS

310/1 et seq. (West 2008)) alleging coal workers' pneumoconiosis and claiming a last exposure date of September 24, 2004. Medical evidence prese nted at the hearing indicated that the claimant was diagnosed with chronic obstructive pul monary disease (COPD) caused in part by exposure to coal dust but was not diagnosed with co al workers' pneumoconiosis. The arbitrator

found that the claimant's claim was time-barred bec ause it was not filed within the three-year- 2 -

statute of limitations applicable to claims allegin g occupational diseases other than coal workers' pneumoconiosis. See 820 ILCS 310/6(c) (West 2008). ¶ 2 The claimant appealed the arbitrator's decision to the Illinois Workers' Compensation Commission (the Commission), arguing that the arbit rator erred by applying the Act's three-year

statute of limitations to the claimant's claim rath er than the five-year statute of limitations governing claims for disability caused by "coal min ers pneumoconiosis." The Commission unanimously affirmed the arbitrator's decision. ¶ 3 The claimant then sought judicial review of the Com mission's decision in the circuit court of Randolph County, which confirmed the Commission' s ruling. The claimant filed a motion to reconsider the court's ruling in which he argued fo r the first time that the "statutory scheme devised by the Illinois legislature" ( i.e. , the legislature's enactment of a five-year statut e of limitations for "coal miners pneumoconiosis" and a three-year statute of limitations for other pulmonary conditions like COPD) "violates the Equal Protection Clause of the Illinois

Constitution." The circuit court denied the claima nt's motion to reconsider. This appeal

followed. ¶ 4 FACTS ¶ 5 For more than 22 years, the claimant worked for the employer as a coal miner. Although he spent one year working above ground, 90% percent of his career with the employer was spent underground. During his employment, the claimant w as exposed to coal dust both underground and above ground. During the dustiest conditions h e encountered underground, the claimant could only see 10 to 15 feet in front of him. In l ighter dust he could see approximately 30 to 40

feet.- 3 -

¶ 6 The employer's mine closed on September 24, 2004. That was the claimant's last day at the mine and his last exposure to coal dust. Befor e his last day, the claimant told two foremen that he was having breathing problems. He said tha t he was experiencing "congestion." He did not mention that he thought he had black lung or co al workers' pneumoconiosis. ¶ 7 On September 3, 2008, the claimant filed an applica tion for adjustment of claim with the Commission seeking benefits under the Act for heart , lung, and breathing problems (including pneumoconiosis) caused by exposure to coal dust, ro ck dust, fumes, and vapor during the course of his employment. On December 15, 2008, the claim ant filed a claim under the federal Black Lung Benefits Act (30 U.S.C. § 901 et seq. (2006)). ¶ 8 The claimant's union recommended that the claimant be evaluated by Dr. William Houser, who is board certified in internal medicine and pulmonary disease. On February 16, 2009, Dr. Houser examined the claimant in connectio n with the claimant's federal claim for black lung benefits. The claimant told Dr. Houser that h e had smoked 11⁄2 packs of cigarettes per day from age 16 through age 30. Dr. Houser noted that the claimant rode his bicycle up to 10 miles per day, 3 times per week in the summertime. An x- ray of the claimant's chest was interpreted as negative for coal workers' pneumoconiosis by Dr. Da niel Whitehead, a B-reader. The claimant's arterial blood gas testing levels were normal. How ever, a spirometry revealed mild obstruction in the claimant's airways, primarily in his small a irways. ¶ 9 Dr. Houser diagnosed mild COPD and arterial sclerot ic heart disease with an "age indeterminate anteroseptal myocardial infarct." 1 Dr. Houser opined that the claimant's COPD

1 A "myocardial infarction," commonly known as a he art attack, is a heart problem where part of the heart muscle dies and scars due to poor blood s upply. When the patient suffers an "anteroseptal" infarction, the tissue damage is cen tered around the anteroseptal wall, the area- 4 -

was secondary to the inhalation of coal and rock du st during his work as a coal miner and his smoking history. Dr. Houser opined that the claima nt's arterial sclerotic heart disease was secondary to the claimant's cigarette smoking and p ossibly also to hereditary factors. Dr. Houser did not diagnose coal workers' pneumoconiosis. ¶ 10 On March 23, 2009, the United States Department of Labor (the DOL) issued a Schedule for Submission of Additional Evidence (the SSAE) in connection with the claimant's federal claim for black lung benefits. The SSAE indicated that: (1) the claimant did not have pneumoconiosis caused by exposure to coal mine dust ; and (2) the claimant did not have a totally disabling respiratory or pulmonary impairment cause d in part by pneumoconiosis. On June 23, 2009, the DOL issued a "Proposed Decision and Order " denying benefits and finding that "the evidence does not show that the [claimant] has pneu moconiosis (black lung disease)." ¶ 11 In the instant case, the claimant introduced into e vidence the expert report of Dr. Lawrence Mayer, a physician who holds a Ph.D. in ep idemiology. Dr. Mayer opined that the claimant's claim should be governed by the Act's fi ve-year statute of limitations for claims involving coal workers' pneumoconiosis, rather than the three-year statute of limitations for other claims brought under the Act. Dr. Mayer acknowledg ed that coal workers' pneumoconiosis and COPD affected different parts of the lungs. Specif ically, he noted that pneumoconiosis involved scarring (fibrosis) on the lung tissue, whereas COP D involved damage to the broncho trachea tree. However, Dr. Mayer stated that, like coal wo rkers' pneumoconiosis, COPD could be caused by long-term exposure to coal dust. He also noted that both conditions can significantly impair lung function and can result in death. Dr. Mayer concluded that there was "no evidence to support the suggestion that [coal workers' pneum oconiosis is] a more destructive disease than

between the left and right ventricles.- 5 -

COPD." Based on these conclusions (which were draw n from Dr. Mayer's review of the relevant medical literature), Dr. Mayer opined that "from a medical and scientific viewpoint, no distinction should be made legally between a diseas e process that directly attacks the lung tissue [pneumoconiosis] *** and one that attacks that part of the lung that permits airflow in and out of the lung [COPD]." In other words, Dr. Mayer opined that no distinction should be drawn between coal workers' pneumoconiosis and COPD for p urposes of applying a statute of limitations. He suggested that the distinction bet ween the two conditions reflected in the Act's statute of limitations "has to be the product of th inking that COPD can never exist in a coal miner unless [there] is evidence that he or she has [pneumoconiosis]," a belief which, according to Dr. Mayer, has been proven false. ¶ 12 The arbitrator denied the claimant's claim as untim ely. The arbitrator noted that the

statute of limitations for claims filed under the A ct (820 ILCS 310/6(c) (West 2008)) requires an employee to file his claim within three years of th e last date of exposure or within two years of the last payment of compensation. The arbitrator o bserved that "the sole exceptions to [this] statutory requirement are for claims of coal worker s' pneumoconiosis and radiological exposure, which allow for filing periods of five years and tw enty-five years, respectively." The arbitrator found that there was no evidence of coal workers' p neumoconiosis or radiological exposure in this case, and no evidence that the claimant receiv ed any compensation from the employer after September 24, 2004 (the claimant's last date of exp osure to coal dust). Accordingly, because the claimant filed his claim more than three years afte r his last date of exposure, the arbitrator found that the claim was time-barred under section 6(c) o f the Act and found all remaining issues moot. ¶ 13 The claimant appealed the arbitrator's decision to the Commission, arguing that the arbitrator erred by applying the Act's three-year s tatute of limitations to his claim rather than the- 6 -

five-year statute of limitations governing claims f or disability caused by "coal miners pneumoconiosis." Citing Dr. Mayer's opinion, the c laimant maintained that "the medical literature establishes that COPD caused by exposure to coal dust is a form of *** coal workers' pneumoconiosis" and that his claim should therefore be governed by the five-year statute of limitations. The Commission rejected this argument . The Commission "view[ed] itself as bound by the specific language of Section 6(c)" which "co ntains no specific reference to COPD and does not define coal workers' pneumoconiosis so as to include COPD." Based upon Dr. Houser's diagnosis and opinions, the Commission found that t he claimant's "occupational disease claim for COPD is governed by the three-year statute of l imitations and was thus not timely filed."

The Commission denied the claimant's claim on that basis and found all remaining issues moot. ¶ 14 The claimant then sought judicial review of the Com mission's decision in the circuit court of Randolph County, which confirmed the Commission' s ruling. The circuit court found that

there was "insufficient evidence" for the court to find that "the [COPD] which the claimant suffers can be considered coal miner's pneumoconios is." The claimant subsequently filed a motion to reconsider the court's ruling in which he argued for the first time that the "statutory scheme devised by the Illinois legislature" ( i.e. , the legislature's enactment of a five-year statut e of limitations for "coal miners pneumoconiosis" and a three-year statute of limitations for other pulmonary conditions like COPD) "violates the Equal Protection Clause of the Illinois

Constitution." The circuit court held that the evi dence to support the claimant's equal protection

claim was "insufficient" and denied the claimant's motion to reconsider. This appeal followed.- 7 -

¶ 15 ANALYSIS ¶ 16 1. The Governing L imitations Period ¶ 17 The claimant argues that the Commission erred in ap plying the Act's three-year statute of limitations to his claim, rather than the Act's fiv e-year limitations period governing claims for disability caused by "coal miners pneumoconiosis." The claimant contends that the phrase "coal miners pneumoconiosis" in section 6(c) of the Act s hould be interpreted to include COPD caused by exposure to coal dust. This argument turns on a n issue of statutory construction, a question of

law which we review de novo

. Gruszeczka v. Illinois Workers' Compensation Comm'n , 2013 IL 114212, ¶ 12; Wal-Mart Stores, Inc. v. Industrial Comm'n , 324 Ill. App. 3d 961, 965 (2001). 2 ¶ 18 The primary rule of statutory construction is to as certain and give effect to the intent of the legislature. Gruszeczka , 2013 IL 114212, ¶ 12. The language used in the s tatute is normally the best indicator of what the legislature intended

. Id. Each undefined word in the statute must

2 Although the employer concedes that the "interpre tation of the statute of limitations found at 820 ILCS 310/6(c)" is subject to de novo review, it argues that we should apply a "clearly

erroneous" standard of review to the Commission's " ultimate conclusion [as] to the facts in this case." In support of this argument, the employer c ites Dodaro v. Illinois Workers' Compensation

Comm'n , 403 Ill. App. 3d 538, 544-45 (2010). Dodaro involved a two-step analysis which required us to apply two standards of review: first , we reviewed the Commission's interpretation of the meaning of a statutory exclusion de novo ; second, we reviewed the Commission's application of the statutory exclusion to the facts presented in that case under a more deferential "clearly erroneous" standard. Dodaro is inapposite. Unlike the situation presented in Dodaro , the facts essential to our analysis in this case ar e undisputed, and the case turns on a pure issue of statutory construction. Thus, our review is de novo

. Dodaro , 403 Ill. App. 3d at 544-45.- 8 -

be given its ordinary and popularly understood mean ing. Id. ; see also Texaco-Cities Service Pipeline Co. v. McGaw , 182 Ill. 2d 262, 270 (1998). Words and phrases m ust not be viewed in isolation but must be considered in light of other relevant provisions of the statute. Gruszeczka , 2013 IL 114212, ¶ 12; Midstate Siding & Window Co. v. Rogers , 204 Ill. 2d 314, 320 (2003). If the meaning of an enactment is unclear from the sta tutory language itself, the court may look beyond the language employed and consider the purpo se behind the law and the evils the law was designed to remedy as well as other sources suc h as legislative history. Gruszeczka , 2013 IL 114212, ¶ 12. However, where the statutory languag e is clear, it will be given effect without

resort to other aids for construction. Id. ; see also Hollywood Casino-Aurora, Inc. v. Illinois Workers' Compensation Comm'n , 2012 IL App (2d) 110426WC, ¶ 16. ¶ 19 Section 6(c) of the Act provides, in relevant part:

"In any case, other than injury or death caused by exposure to radiological materials or equipment or asbestos, unless applicat ion for compensation is filed with the Commission within 3 years after the date of the disablement, where no compensation has been paid, or within 2 ye ars after the date of the last payment of compensation, where any has bee n paid, whichever shall be later, the right to file such application shall be barred." 820 ILCS 310/6(c) (West 2008). In 1973, the legislature amended section 6(c) by pr escribing a five-year limitations period "in cases of disability caused by coal miners pneumocon iosis." 3 As noted, the claimant argues that

3 Specifically, section 6(c) now provides that clai ms for disability caused by coal miners' pneumoconiosis shall be barred unless such claims a re filed with the Commission "within 5 years after the employee was last exposed where no compensation has been paid, or within 5- 9 -

the phrase "coal miners pneumoconiosis" in section 6(c) should be interpreted to include COPD caused by exposure to coal dust. ¶ 20 We disagree. By its plain terms, the five-year lim itations period prescribed by section 6(c) applies only to claims for disability caused b y "coal miners pneumoconiosis." It does not reference COPD. Nor does it apply to all disabilit ies or respiratory conditions caused by exposure to coal dust. To the contrary, it applies only to claims for disability caused by one specific medical condition, "coal miners pneumoconi osis." Had the legislature intended to include claims for COPD within the five-year limita tions period prescribed in section 6(c), it could have explicitly referenced COPD in that provi sion. Alternatively, it could have drafted the provision broadly to include all disabilities or re spiratory conditions caused by "exposure to coal dust," as it did for other types of occupational di sease claims. 4 It did neither. Instead, the legislature decided to apply the five-year limitati ons period only to claims for disability caused by "coal miners pneumoconiosis." Accordingly, by i ts plain language, section 6(c)'s five-year limitations period does not apply to disabilities c aused by any other conditions, not even to other respiratory diseases that can be caused in part by exposure to coal dust, like COPD. 5 It is

years after the last payment of compensation where any has been paid." Id. In this case, the claimant's last exposure was on September 24, 2004, and the employer paid no compensation

after that date.

4 For example, the legislature prescribed a 25-year limitations period "[i]n cases of disability caused by exposure to radiological materials or equ ipment or asbestos." 820 ILCS 310/6(c) (West 2008).

5 The claimant explicitly agreed with this conclusi on in his motion for reconsideration before the circuit court. There, the claimant stated that "th e legislature promulgated a statute of limitations- 10 -

undisputed that the claimant in this case was diagn osed with COPD but was not diagnosed with coal workers' pneumoconiosis. Thus, the Commission did not err in finding that section 6(c)'s five-year statute of limitations did not apply to h is claim. ¶ 21 The claimant argues that, because "coal miners pneu moconiosis" is not defined in the Act, we should apply the "ordinary and popularly un derstood meaning" of that term, which, according to the claimant, includes COPD. The clai mant asserts that the medical community recognizes that COPD caused by exposure to coal dus t is a "form of" coal workers' pneumoconiosis. In support of this assertion, the claimant cites Dr. Mayer's opinion. However, contrary to the claimant's argument, Dr. Mayer did not opine that COPD was a type of coal workers' pneumoconiosis. To the contrary, he expre ssly acknowledged that they were different conditions. For example, Dr. Mayer noted that coal workers' pneumoconiosis is a "restrictive pulmonary impairment" of the lung tissue, whereas C OPD is an "obstructive impairment" of the broncho trachea tree. Thus, Dr. Mayer acknowledged that the two conditions involve a different disease process and affect "different part[s] of th e lung." Moreover, Dr. Mayer stated that the

"strict medical definition of Coal Worker's Pneumoc oniosis requires a finding of fibrosis (scaring) [ sic ] on the miner's lung tissue," and that this scarri ng "can frequently be seen on a chest x-ray." By contrast, Dr. Mayer noted that ob structive impairments like COPD are more

that provides that a coal miner who has sustained d amage to his lungs by means of coal dust exposure in the form of fibrosis (scaring [ sic ]) has five years to bring his or her claim," but " [a] miner who has sustained damage in the form of emphy sema or other form of [COPD] has only three years to file his or her claim." As Dr. Maye r noted, coal workers' pneumoconiosis involves fibrosis (or scarring) of the lung tissue caused by exposure to coal dust.- 11 -

readily diagnosed by pulmonary function testing and that a "chest x-ray is not a good diagnostic tool for detecting emphysema" (one of the two types of COPD). The only similarities between COPD and coal workers' pneumoconiosis noted by Dr. Mayer are that both conditions can arise from exposure to coal dust and both can result in m ajor pulmonary impairment and death. ¶ 22 Further, one of the stated purposes of Dr. Mayer's report was to demonstrate that exposure to coal dust "can and does cause[ ] [COPD] independent of any radiologic or other evidence of the existence of coal workers' pneumoco niosis. " (Emphasis added.) Thus, Dr. Mayer's entire report is premised on the assumption that COPD is a different condition than coal workers' pneumoconiosis. Dr. Mayer's report reinfo rces this assumption by providing a detailed history of the current medical and epidemiological consensus that exposure to coal dust can

cause COPD even in the absence of coal workers' pneumoconiosis . Accordingly, although Dr. Mayer opined that there was no scientific or medica l reason to apply a different limitations period to claims by coal miners alleging COPD (as o pposed to coal workers' pneumoconiosis), he never stated or implied that COPD was the same a s coal workers' pneumoconiosis or that the former was a type of the latter. To the contrary, his report unequivocally provides that they are two separate conditions. 6

6 Moreover, although we have never addressed the pre cise question presented in this case, our appellate court has treated COPD and coal workers' pneumoconiosis as separate conditions ( i.e. , we have assumed without deciding that they were dif ferent diseases) based on the medical evidence provided in several cases. See, e.g. , Freeman United Coal Mining Co. v. Illinois Workers' Compensation Comm'n , 386 Ill. App. 3d 779 (2008); Shelton v. Industrial Comm'n , 267 Ill. App. 3d 211 (1994).- 12 -

¶ 23 The claimant points to two other legal provisions i n support of his argument that "coal miners pneumoconiosis" includes COPD. First, he re lies upon section 1(d) of the Act (820 ILCS 310/1(d) (West 2008)). That section provides, in r elevant part, that "[i]f a deceased miner was employed for 10 years or more in one or more coal m ines and died from a respirable disease there shall, effective July 1, 1973, be a rebuttabl e presumption that his or her death was due to pneumoconiosis." 820 ILCS 310/1(d) (West 2008). C ontrary to the claimant's argument, this provision does not suggest that COPD is equivalent to (or a type of) coal workers' pneumoconiosis. It merely suggests that: (1) pneum oconiosis is one of multiple types of respirable diseases that can be caused by exposure to coal dust; (2) if a miner who worked in a coal mine for 10 years or more dies from a respirab le disease before he is diagnosed with pneumoconiosis, there will be a presumption that hi s death was caused by pneumoconiosis; and (3) that presumption may be rebutted by evidence th at the miner died from some other type of respirable disease, such as COPD. ¶ 24 The presumption cited by the claimant does not appl y in this case, because the claimant is still alive. But even if there was a rebuttable pr esumption of pneumoconiosis in this case, the presumption was rebutted by Dr. Houser, the claiman t's own IME physician, who opined that the claimant did not have pneumoconiosis. ¶ 25 The claimant also relies upon certain regulations p romulgated by the DOL pursuant to the federal Black Lung Benefits Act (Black Lung Act) (3 0 U.S.C. § 901 et seq. (2006)). For purposes of the Black Lung Act, these regulations d efine "pneumoconiosis" as "a chronic dust disease of the lung and its sequelae, including res piratory and pulmonary impairments, arising out of coal mine employment." 20 C.F.R. § 718.201( a) (2009). This definition includes both medical (or "clinical") pneumoconiosis and statutor y (or "legal") pneumoconiosis. "Clinical- 13 -

pneumoconiosis" consists of "those diseases recogni zed by the medical community as pneumoconioses, i.e. , the conditions characterized by permanent deposit ion of substantial amounts of particulate matter in the lungs and the fibrotic reaction of the lung tissue to that deposition caused by dust exposure in coal mine emp loyment." 20 C.F.R. § 718.201(a)(1) (2009). "Legal pneumoconiosis" is defined as "any chronic lung disease or impairment and its sequelae arising out of coal mine employment," incl uding "any chronic restrictive or obstructive pulmonary disease arising out of coal mine employme nt." 20 C.F.R. § 718.201(a)(2) (2009). The regulation defines the phrase "arising out of c oal mine employment" as including any chronic pulmonary disease or respiratory or pulmona ry impairment "significantly related to, or substantially aggravated by, dust exposure in coal mine employment." 20 C.F.R. § 718.201(b) (2009). ¶ 26 The claimant correctly notes that these federal reg ulations define "legal pneumoconiosis" as including COPD caused by exposure to coal dust. However, this fact does not support the claimant's argument in this case because the Act do es not define "pneumoconiosis" in a similar manner. Nor does it adopt or reference the federal regulations. As noted above, section 6(c) of the Act leaves the term "coal miners pneumoconiosis " undefined, and nothing in the Act suggests that the legislature intended that term to include COPD. In fact, the legislature's failure to include more expansive language supports the opp osite inference, i.e. , that the term includes only diagnosed cases of pneumoconiosis, not COPD. 7

7 Moreover, it should be noted that, applying the mo re expansive definitions of pneumoconiosis contained in the federal regulations, the DOL found that the claimant did not have either medical or legal pneumoconiosis.- 14 -

¶ 27 In sum, by its plain terms, the Act's five-year sta tute of limitations applies exclusively to "coal miners pneumoconiosis," not to COPD. 820 ILC S 310/6(c) (West 2008). It is undisputed that the claimant was diagnosed with COPD but was n ot diagnosed with coal workers' pneumoconiosis. The claimant does not argue that s ection 6(c) is ambiguous. Thus, the claimant's claim for disability caused by COPD coul d be subject to the five-year limitations period only if "pneumoconiosis" is commonly underst ood as including COPD. However, Dr. Mayer's opinion does not support this conclusion. In fact, Dr. Mayer's expert report establishes the contrary proposition, i.e. , that COPD and pneumoconiosis are separate conditi ons. ¶ 28 Relying upon Dr. Mayer's opinion, the claimant argu es that there is no medical or scientific reason for treating COPD and pneumoconio sis differently for purposes of the statute of limitations. However, this is an argument best add ressed to the legislature. We must apply the Act's unambiguous statute of limitations as written , and we may not amend the statute under the guise of interpretation. Hines v. Department of Public Aid , 221 Ill. 2d 222, 230 (2006) ("Where, as here, the language of a statute is clear and una mbiguous, the court must enforce it as written" and "may not annex new provisions or substitute dif ferent ones, or read into the statute exceptions, limitations, or conditions which the le gislature did not express."); In re Mary Ann P. , 202 Ill. 2d 393, 409 (2002) (ruling that, where the legislature had not "seen fit to amend" a statute in the fashion advocated by the respondent, the supreme court would not "inject [that] provision into the statute" "under the guise of sta tutory construction"); see also Plasters v.

Industrial Comm'n , 246 Ill. App. 3d 1, 8 (1993). ¶ 29 2. E qual Protection ¶ 30 The claimant argues that interpreting the five-year limitations period under section 6(c) as applying to claims for coal workers' pneumoconiosis but not to claims for COPD caused by- 15 -

exposure to coal dust violates the equal protection clause of the Illinois Constitution because it treats similar classes of claimants differently wit hout a rational basis. The claimant urges us to

construe the statute in a manner that avoids this " constitutional infirmity" by applying the fiveyear limitations period to his claim. ¶ 31 We disagree. As an initial matter, the claimant pr esented an equal protection argument

for the first time in a motion for reconsideration before the circuit court. Thus, the claimant forfeited the argument by not raising it before the Commission. See, e.g. , Carpetland U.S.A., Inc. v. Illinois Department of Employment Security , 201 Ill. 2d 351, 397 (2002) (finding constitutional argument waived where it was raised before the circuit court but not before the administrative agency). 8 Although administrative agencies "lack[ ] the aut hority to invalidate a statute on constitutional grounds or to question it s validity" ( id. ), it is " '[n]onetheless *** advisable to assert a constitutional challenge on t he record before the administrative tribunal, because administrative review is confined to the pr oof offered before the agency' " ( id. (quoting

McGaw , 182 Ill. 2d at 278-79)). Such a practice avoids piecemeal litigation and allows opposing

8 Moreover, the equal protection argument the claima nt raised in the circuit court is different from the equal protection argument he raises on app eal. Before the circuit court, the claimant argued that "statutory scheme devised by the Illino is legislature" in section 6(c) violated the equal protection clause. On appeal, he argues that the Commission's and the circuit court's interpretation of that statutory scheme to exclude his claim from the Act's five-year limitations period violates the equal protection clause, and he disavows any argument that the statute itself is unconstitutional. Accordingly, the claimant arguab ly forfeited the argument he makes on appeal by not raising it before either the Commission or t he circuit court.- 16 -

parties to present evidence and to build a record i n opposition to a constitutional challenge. Carpetland U.S.A. , 201 Ill. 2d at 397; McGaw , 182 Ill. 2d at 279. ¶ 32 We recognize that the rule that issues or defenses not raised before an administrative agency will be deemed waived and will not be consid ered for the first time on administrative review is "an admonition to the parties, not a limi tation on the court's jurisdiction," and that "the waiver rule may be relaxed in order to maintain a u niform body of precedent or *** where the interests of justice so require." Daniels v. Industrial Comm'n, 201 Ill. 2d 160, 172 (2002). However, this is not such a case. If we are to con sider whether it would be unconstitutional to limit the Act's five-year limitations period to cla ims for coal workers' pneumoconiosis (as the Commission did in this case), the employer and the Commission should first be given the opportunity to build a record in response to the co nstitutional challenge. See Carpetland U.S.A. , 201 Ill. 2d at 397. 9

9 The employer also argues that the claimant violate d Illinois Supreme Court Rule 19 by failing to serve an appropriate notice of his constitutiona l claim on the Attorney General or the Commission's attorney. Ill. S. Ct. R. 19(a) (eff. Sept. 1, 2006). We disagree. Supreme Court Rule 19 requires that such notice be provided when the State or the political subdivision, agency, or officer affected by the constitutional challenge "is not already a party" to the action. Id. The purpose of this notice requirement is "to afford th e State *** [or] agency *** the opportunity *** to intervene in the cause or proceeding for the pur pose of defending the law or regulation challenged." Ill. S. Ct. R. 19(c) (eff. Sept. 1, 2 006). Here, the Commission is a named party to

the action and has received the claimant's briefs b efore the circuit and appellate courts. Thus, Rule 19 does not require the claimant to provide ad ditional notice to the Commission's attorney. Moreover, on appeal, the claimant is challenging th e constitutionality of the Commission's and- 17 -

¶ 33 In any event, if we were to address the claimant's constitutional argument, we would reject it. The equal protection clause of the Illi nois Constitution (Ill. Const. 1970, art. I, § 2) requires the government to "treat similarly situate d individuals in a similar manner." Byrd v.

Hamer , 408 Ill. App. 3d 467, 490 (2011). It does not pr eclude the State from enacting legislation that draws distinctions between different categorie s of people, but it does "prohibit the government from according different treatment to pe rsons who have been placed by a statute into different classes on the basis of criteria wholly u nrelated to the purpose of the legislation." Jacobson v. Department of Public Aid , 171 Ill. 2d 314, 322 (1996). In reviewing a clai m that a statute violates equal protection, the court applie s different levels of scrutiny depending on the nature of the statutory classification involved. Id. at 322-23. Classifications based on race, national origin, sex, or illegitimacy, and classifi cations affecting fundamental rights receive heightened scrutiny. Id. at 323. In all other cases, the court employs only a "rational basis

review." Id. As the claimant correctly notes, rational basis rev iew applies in this case. ¶ 34 Whether a rational basis exists for a classificatio n presents a question of law, which we

consider de novo

. Cutinello v. Whitley , 161 Ill. 2d 409, 417 (1994). Under the rational basis test, a court's review of a legislative classification is "limited and generally deferential." Jacobson , 171 Ill. 2d at 323. The court simply inquires whet her the method or means employed in the

the circuit court's interpretation of section 6(c) of the Act (which he deems erroneou s), not the constitutionality of the statute itself. Thus, the claimant does not need to provide notice of this argument to the Attorney General. The claimant arg uably should have provided notice to the Attorney General when he challenged the constitutio nality of section 6(c) of the Act before the circuit court. However, he has abandoned that chal lenge on appeal, so such notice is no longer required.- 18 -

statute to achieve the stated goal or purpose of th e legislation is rationally related to that goal. Id. at 323-24; see also Fumarolo v. Chicago Board of Education , 142 Ill. 2d 54, 74 (1990). The legislation "carries a strong presumption of consti tutionality," and "if any set of facts can reasonably be conceived to justify the classificati on, it must be upheld." Jacobson, 171 Ill. 2d at

324. ¶ 35 Interpreting section 6(c)'s five-year statute of li mitations as applying only to claims involving coal workers' pneumoconiosis (and not to claims involving COPD caused by exposure to coal dust), does not violate the equal protectio n clause because this interpretation of the statute does not treat "similarly situated" individuals dif ferently. All coal miners diagnosed with coal workers' pneumoconiosis have five years to file the ir claims, and all coal miners diagnosed with COPD (but not pneumoconiosis) have three years to f ile their claims. As noted above, coal workers' pneumoconiosis and COPD are different cond itions which involve different disease processes that affect different parts of the lung a nd that are diagnosed through different procedures. Thus, miners suffering from pneumoconi osis are not "similarly situated" to miners suffering from COPD, even where the COPD is caused by exposure to coal dust. Because these miners are not similarly situated, the government m ay treat them differently without running afoul of the equal protection clause. ¶ 36 CO NCLUSION ¶ 37 For the foregoing reasons, we affirm the judgment o f the circuit court of Randolph County, which confirmed the Commission's ruling. ¶ 38 Affirmed.2014 IL App (5th) 130151WC

IN THE

APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT

WORKERS' COMPENSATION COMMISSION DIVISION

JACK CARTER, ) Appeal from the Circuit Court ) of the Twentieth Judicial Circuit, ) Randolph County, Illinois. Appellant, ) ) v. ) Appeal No. 5-13-0151WC ) Circuit No. 11-MR-25 ) THE ILLINOIS WORKERS' COMPENSATION ) Honorable COMMISSION et al. (Old Ben Coal Co./ ) Richard A. Brown, Horizon Natural Resources, Appellee). ) Judge, Pre siding.

___________________________________________________ __________________________________ Opinion Filed: June 9, 2014

___________________________________________________ __________________________________ Justices: Honorable William E. Holdridge, P.J. Honorable Thomas E. Hoffman, J., Honorable Donald C. Hudson, J., Honorable Thomas M. Harris, Jr., J., and Honorable Bruce D. Stewart, J. Concur

___________________________________________________ __________________________________ Attorney Darrell Dunham, Darrell Dunham & Associates, 308 We st Walnut Street, for Carbondale, IL 62903 Appellant

___________________________________________________ __________________________________ Attorney Cheryl L. Intravaia, Feirich/Mager/Green/Ryan, 2001 West Main Street, for P.O. Box 1570, Carbondale, IL 62903-1570 Appellee

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