Twice Over Clean, Inc. v. Industrial Comm'n

Case Date: 03/26/2003
Court: Industrial Commission
Docket No: 3-02-0353WC NRel

No. 3--02--0353WC


IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

INDUSTRIAL COMMISSION DIVISION


TWICE OVER CLEAN, INC., ) Appeal from the Circuit Court
) of Peoria County.
             Appellant, )
) No. 01--MR--350
v. )
)
THE INDUSTRIAL COMMISSION )
et al. ) Honorable
) John A. Barra,
(Howard Haulk, Appellee). ) Judge, Presiding.

 

JUSTICE Jack O'MALLEY delivered the opinion of the court:

On January 2, 1997, Howard Haulk experienced a heart attackafter completing that day's work for his employer, Twice Over CleanInc. (employer). Claimant filed an application for adjustment ofclaim pursuant to the Workers' Compensation Act (Act) (820 ILCS305/1 et seq. (West 2000)). The arbitrator determined thatclaimant sustained a compensable accident and awarded claimantmedical expenses, temporary total disability benefits, andpermanent partial disability benefits. The Industrial Commission(Commission) affirmed and adopted the arbitrator's decision, withone commissioner dissenting. The circuit court confirmed theCommission's decision. We reverse.

The following facts were adduced at the hearing before thearbitrator. Claimant testified that he worked for employer as alaborer. On January 2, 1997, he was working in Minneapolis,Minnesota, removing asbestos from an old, disused building. OnJanuary 2, 1997, claimant began working there at about 7 a.m. andcompleted work at 4:30 or 5:30 p.m. Claimant testified that thebuilding was unheated and that the inside temperature of about 5F. was colder than the outside temperature of about 15-20 F.

Claimant testified that he was engaged in removing asbestosthat had previously been collected into large bags, each of whichweighed around 40 to 45 pounds. Claimant testified that there wereabout 500 bags which had to be placed into a commercial dumpster,which was accessed by walking down several stories and across 40 or50 feet outside of the building. Claimant testified that heconducted the clean-up of the building while wearing a fullrespirator and protective clothing.

Claimant testified that he began to experience pains in hischest, neck, and left shoulder in the middle of the afternoon,around 2:30 p.m. He ignored the pains and, when they were moreintense, sat down for a few minutes until the pains abatedsufficiently to allow him to continue working. When claimant endedwork and returned to his hotel, he did not feel like eating dinner. At about 7:30, claimant testified that his pains returned onceagain, but this time, claimant broke into a cold sweat and "got thedry heaves." At that point, claimant requested an ambulance andwas taken to the hospital where it was established that claimanthad experienced a an acute inferior wall myocardial infarction.

After treatment in Minneapolis, claimant was discharged andreturned to Peoria, where he was placed under the care of Dr.Cohen, his family physician, and Dr. Gold, a cardiologist.

Dr. Cohen testified in an evidence deposition that, based onthe history related by claimant, the myocardial infarction wascaused by the physical activity in which he engaged on January 2,1997. Employer retained Dr. Wilner, a cardiologist, to reviewclaimant's medical records. Dr. Wilner concluded that claimant'swork activities did not cause claimant's myocardial infarction andpointed to enzymatic studies that he interpreted to demonstratethat plaintiff's heart attack did not occur during the afternoonwhile he was working, but after he had completed his work for theday. On cross-examination, Dr. Wilner conceded that the results ofthe enzymatic studies could also be interpreted consistently witha heart attack occurring during claimant's working hours.

The arbitrator concluded that claimant had experienced anaccidental injury arising out of and in the course of hisemployment and awarded claimant medical expenses, temporary totaldisability benefits, and permanent partial disability benefits (theamounts of which are not disputed on appeal). On review, theCommission affirmed the arbitrator's decision, but one commissionerdissented, finding that claimant had not proved a causalrelationship between his employment and his heart attack. Thetrial court confirmed the Commission's decision and employer timelyappeals.

On appeal, employer argues that the Commission's decision wasagainst the manifest weight of the evidence on the issue ofcausation. The claimant is required to establish the elements ofhis right to compensation under the Act. Wal-Mart Stores, Inc. v.Industrial Comm'n, 326 Ill. App. 3d 438, 443 (2001). For anaccidental injury to be compensable under the Act, the claimantmust show that the injury arose out of and in the course of hisemployment. Wal-Mart, 326 Ill. App. 3d at 443. Such a showingrequires that a causal connection be demonstrated. Horath v.Industrial Comm'n, 96 Ill. 2d 349, 356 (1983). The Commission ischarged with determining the question of causation and we willdisturb the Commission's decision only if it is contrary to themanifest weight of the evidence. Horath, 96 Ill. 2d at 356.

It is well established that pre-existing heart disease willnot preclude a workers compensation award for a heart attack wherework-related stress contributed to the heart attack. See, e.g.,City of Des Plaines v. Industrial Comm'n, 95 Ill. 2d 83, 88-89(1983). However, the "one exception to this rule is when the heartdisease is so far gone that any stress, even the most ordinaryexertion, will bring on the *** heart attack," the employer is notliable "because it is only coincidence that the attack occurred atwork rather than somewhere else." Doyle v. Industrial Comm'n, 86Ill. 2d 544, 550 (1981). This court has recently confirmed thisprinciple, holding that "a claimant is not entitled tocompensation, regardless of whether his condition of ill-being wascaused by work-related aggravation of a preexisting condition, ifhis physical condition has so deteriorated that his condition ofill-being could have been produced by normal daily activity." Sisbro, Inc. v. Industrial Comm'n, 327 Ill. App. 3d 868, 873(2002), appeal allowed, No. 93729 (Ill. October 2, 2002). Thus,even if the Commission were to have found that a claimant's illnessor accident were caused or aggravated by conditions at his work,the claimant could not recover if his illness or condition were soprecarious that any normal daily activity could have triggered it. Here, therefore, if the evidence demonstrated that claimant's heartattack could have been caused by any normal daily exertion, thenthe exceptions enunciated in Doyle and Sisbro would apply to barclaimant's recovery of workers compensation benefits.

Our review of the record demonstrates that this cause is onall fours with Sisbro and presents an even stronger factualscenario to which to apply the exception. There, the claimantexperienced joint degeneration related to his diabetic condition. His doctor opined that the degeneration would be inevitable as aresult of his condition and that anything, even normal walking,would cause the degeneration seen in the claimant's foot. Sisbro,327 Ill. App. 3d at 870. The doctor maintained, however, that theclaimant's injury had been caused as he stepped into a potholewhile working. Sisbro, 327 Ill. App. 3d at 870. This courtdetermined that the normal daily activity exception applied wherethe evidence showed that the claimant's condition of ill beingcould have arisen from any activity, no matter how slight ormundane. Sisbro, 327 Ill. App. 3d at 879.

Here, it is undisputed that claimant experienced a myocardialinfarction. What is disputed is the time at which it occurred. However, this dispute is immaterial because, even assuming thatclaimant's heart attack occurred at work and was caused byemployment-related physical stress, the issue remains whetherclaimant's condition was "so far gone that any stress, even themost ordinary exertion, will bring on the *** heart attack." Doyle, 86 Ill. 2d at 550.

Here, Dr. Cohen testified that claimant's right coronaryartery was 90% occluded. The following exchange then occurred:

"Q [by employer's counsel]: And a person with thatdegree of occlusion, would you agree that any activity or noactivity could put sufficient stress on the heart to result ina myocardial infarction?

A [by Dr. Cohen]: Yes.

Q: A person with that degree of coronary arterydisease, it's not uncommon for them to experience a myocardialinfarction while at rest, is that true?

A: Yeah. Anybody can experience a myocardialinfarction at rest really.

Q: With that degree of occlusion, you're basically --a patient may not have any symptoms even with that degree ofocclusion until the myocardial infarction actually occurs, isthat true?

A: It would be unlikely. Certainly there are patientswho denied any symptoms up until that happened.

Q: A person with that degree of occlusion is basicallya heart attack waiting to happen, would you agree?

A: Yeah."

Dr. Cohen's testimony establishes that claimant's heart conditionwas so far gone that any stress, even that of ordinary dailyactivity, could have brought about claimant's heart attack. As aresult, therefore, claimant is barred from recovery under the Act. See Sisbro, 327 Ill. App. 3d at 878-79.

Claimant argues that the Commission's factual determination ofcausation is entitled to deference and that we may not substituteour judgment for that of the Commission. While claimant correctlystates the law, he overlooks the fact that the Commission did notemploy the proper legal analysis to the questions at hand. TheCommission failed to consider the normal daily activity exceptionto the rule that the employer must take the employee as it findshim, which was enunciated in Doyle and Sisbro. Employing thecorrect legal standard results in the conclusion that the dailyactivity exception applies to foreclose claimant from receivingbenefits.

Claimant also argues that our review of this matter is limitedto deciding whether sufficient evidence exists to support theCommission's decision, quoting Efrimidis v. Industrial Comm'n, 308Ill. App. 3d 415, 422 (1999). We find Efrimidis to bedistinguishable. There, the court was considering whether theCommission's denial of benefits was against the manifest weight ofthe evidence. The claimant had a heart attack while working andconflicting medical and expert testimony was presented. TheCommission expressly noted that it found the employer's medicalexpert to be more credible than the claimant's. The court notedthat this credibility determination was to be accorded deference onreview. Efrimidis, 308 Ill. App. 3d at 422-23. We note, however,that the daily activity exception was not raised in Efrimidis. Theresult in Efrimidis, however, is consistent with the application ofthe daily activity exception (even though there was medicaltestimony that the claimant there was a heart attack "waiting tohappen," the court failed to complete the analysis). Thus,Efrimidis does not control our review of this matter.

Claimant also cites to Baggett v. Industrial Comm'n, 201 Ill.2d 187 (2002), seeking to define our review of the Commission'sdecision in this matter. Baggett quoted County of Cook v.Industrial Comm'n, 69 Ill. 2d 10, 17-18 (1977), in setting forththe standard of review in cases in which the claimant's injury wascaused by a combination of mental and physical stresses:

" 'An accidental injury can be found to have occurred, eventhough the result would not have obtained had the employeebeen in normal health. [Citation.] If an employee's existingphysical structure gives way under the stress of his usuallabor, his death is an accident which arises out of hisemployment. To come within the statute the employee need onlyprove that some act or phase of the employment was a causativefactor of the resulting injury.

The mere fact that an employee might have suffered afatal heart attack, even if not working, is immaterial, forthe question before the Commission is whether the work thatwas performed constituted a causal factor. [Citation.] thesole limitation to the above general rule is that where it isshown the employee's health has so deteriorated that anynormal daily activity is an overexertion or where it is shownthat the activity engaged in presented risks no greater thanthose to which the general public is exposed, compensationwill be denied.' " Baggett, 201 Ill. 2d at 186-87 (emphasis inoriginal).

In Baggett, however, there was no issue as to whether either of theexceptions to the general rule applied. There was no issue thatthe claimant's health was so deteriorated that even normal dailyactivity was an overexertion. Here, by contrast, claimant's ownphysician agreed that claimant was a heart attack waiting to happenand that claimant could have suffered a heart attack even while atrest. Thus, while Baggett provides an accurate statement of thelaw regarding the normal daily activity exception to the generalrule that an employer must take its employee as it finds him, itdoes not apply that rule. As a result, Baggett is inapposite tothe facts of this case.

Because the Commission failed to apply the normal dailyactivity exception to the facts of this case, it utilized theincorrect legal standard in reaching its decision in this matter. For the foregoing reasons, then, we reverse the judgments of thecircuit court of Peoria County and the Commission.

Reversed.

McCULLOUGH, P.J., and HOFFMAN, J. concur.

JUSTICE HOLDRIDGE, specially concurring:

The majority supports its opinion by citing Sisbro, Inc. v.Industrial Comm'n, 327 Ill. App. 3d 868 (2002), appeal allowed, No.93729 (Ill. October 2, 2002). In Sisbro, as in the instant case,the arbitrator's finding of causation was affirmed by theIndustrial Commission (Commission) and confirmed by the circuitcourt, but this court reversed the finding. This court based itsreversal on a well-established exception to the causation rule: anydaily activity could have caused the claimant's condition of ill-being. Although I dissented in Sisbro, I believe the instant casepresents distinguishable facts warranting application of thecausation exception.

In Sisbro the claimant's doctor testified that his conditionof ill-being was caused by, and did not precede, his industrialaccident. In giving this testimony, the doctor carefullyconsidered the claimant's preexisting medical condition--which theemployer argued was a basis for applying the causation exception. The record indicated that the Commission relied on the doctor'stestimony in rejecting the employer's argument. In the instantcase, however, no such reliance is possible because testimony fromthe claimant's doctor shows that the exception is applicable. Doctor Cohen testified that Haulk's heart condition haddeteriorated to a point where "any activity or no activity" couldhave caused his heart attack. The doctor further agreed that Haulkwas "a heart attack waiting to happen."

As the majority acknowledges, compared to Sisbro, the instantcase presents "[a] stronger factual scenario to which to apply theexception." I agree and thus specially concur.

JUSTICE GOLDENHERSH, dissenting:

I respectfully dissent. Justice Rarick's dissent in Sisbro,Inc. v. Industrial Comm'n, 327 Ill. App. 3d 868 (2002), succinctlyand completely points out the flaws in the majority's position inthat case. His dissent in Sisbro, joined in by Justice Holdridge(who, in this case, files a special concurrence), equally applieshere. The flaws pointed out by the Sisbro dissent have neithermellowed nor disappeared with the passage of time. Accordingly, Iadopt the reasoning of Justice Rarick's Sisbro dissent as the basisfor my dissent in the instant case.