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Illinois Valley Irrigation v. Ind. Com.





Appeal from the Circuit Court of Peoria County; the Hon. Ivan L. Yontz, Judge, presiding.


In June of 1971, the petitioner, Lois Bamberger, on behalf of herself and two minor children, filed a claim under the Workmen's Compensation Act (Ill. Rev. Stat. 1971, ch. 48, par. 138.1 et seq.) with the Industrial Commission to recover for the death of her husband, John K. Bamberger, who had been employed by the respondent, Illinois Valley Irrigation Corporation. (The record does not disclose the reasons for the unusual delay in the completion of proceedings prior to appeal to this court.) An arbitrator's decision denying her claim was reversed by the Industrial Commission, and the circuit court of Peoria County confirmed the Commission's award. The respondent has appealed directly to this court under our Rule 302(a)(2). 58 Ill.2d R. 302 (a)(2).

On Monday, May 25, 1970, Bamberger and a co-worker drove from Havana to a jobsite in Woodstock. They had been assigned to replace a section of underground plastic irrigation pipe with iron pipe and to also replace pivot points on an irrigation system. They drove separate pickup trucks, loaded with 8-inch-diameter, 12-gauge iron pipe, which weighed 9 pounds per running foot. Four 20-foot lengths of this pipe were hung on a rack above the bed of the trucks, approximately 6 1/2 feet above the ground. Other 10-foot sections of pipe and four pivot points, each weighing 60 to 90 pounds, were on the beds of the trucks. The two men arrived at 12:30 p.m. at the farm where the work was to be done and unloaded the materials by hand. It was a sunny day and the temperature was in the low 80's. It took them 1 hour and 15 minutes to unload the trucks.

After unloading the materials the two went to the motel in Woodstock where they were staying, washed and then went out and played nine holes of golf. After playing, Bamberger complained of "not feeling too good" and of "indigestion." That night he slept in a chair, complaining he could not sleep lying down because of the "indigestion."

On Tuesday morning Bamberger and his partner went to the farm to install the pipe and pivot points in a trench 4 feet below the ground. While the co-worker was in the trench, Bamberger would lower the pipes and pivot points into it. He would then enter the trench and help to align the materials. Bamberger was also adjusting and operating various valves and sprinklers on the irrigation system. Twice during the morning and once in the afternoon he complained of indigestion and rested for brief periods. He slept in a chair again that night.

On Wednesday, Bamberger assisted his co-worker in aligning the pipes and materials in the trenches and worked the valves on the system. He also drove to another farm and picked up pieces of 8-inch, 12-gauge pipe and brought them to the work site. During the day he again complained several times of "indigestion" and several times he had to sit down and rest.

That night, May 27, Bamberger experienced difficulty in breathing and went to Memorial Hospital in Woodstock, where he was admitted to the intensive care unit. He told the physician there, Dr. Ray Pensinger, that he had been in excellent health until he had developed a shortness of breath on the golf course two days earlier. The initial diagnosis was a myocardial infarction, but after numerous tests were conducted the diagnosis on his discharge from the hospital was heart disease of unknown cause, manifested by congestive heart failure. There was also a diagnosis of ventricular extrasystolies, or premature or additional contractions of the heart.

On June 14, 1970, Bamberger was discharged from Memorial Hospital and came under the care of Dr. Donald Stehr, his family physician. On June 16, Dr. Stehr examined him and found no abnormal symptoms. He later referred Bamberger to a cardiologist, Dr. Harry Warren, who reported no abnormalities except the ventricular extrasystolies. However, the report concluded: "I'm not sure what this man had. I really would feel that he must have had a mild coronary and I would treat him as such."

Bamberger did not perform any physical duties in his employment from the date of discharge from Memorial Hospital to the date of his death. He was in the office a couple of hours a day and made telephone calls and did clerical work. On July 24, he died suddenly while announcing a little league baseball game. The cause of death was reported as pulmonary edema due to acute myocardial failure.

At the hearing before the arbitrator Dr. Pensinger testified for the petitioner that there could have been a causal relation between Bamberger's work on the irrigation system and his condition of ill being at Memorial Hospital. He stated that there also could be a causal relation between the work and his death on July 24. Dr. Stehr testified substantially to the same effect. Although Dr. Stehr stated that he might not have approved Bamberger's serving as an announcer at a baseball game, such activity, he said, was not likely to bring on a heart condition or aggravate an existing one. On cross-examination both doctors testified that physical exertion was not required to bring about Bamberger's type of heart condition, but that it certainly may have contributed to it.

Dr. George Parker, as a witness for the respondent, testified in response to a hypothetical question that in his opinion there was no causal relation between Bamberger's work and the heart condition which resulted in his death. He stated that Bamberger had suffered from arteriosclerosis of the coronary arteries and that his work had been unrelated to the development of the disease.

Respondent contends that the decision of the Industrial Commission that Bamberger's death arose out of and in the course of employment is contrary to the manifest weight of the evidence. In support of this contention it argues that weight should be given an arbitrator's decision denying compensation, especially where the Commission does not consider new evidence, as was the case here.

In reviewing a decision of an arbitrator the Commission exercises original and not appellate jurisdiction and is not bound by the arbitrator's findings. (Wirth v. Industrial Com., 63 Ill.2d 237, 241.) This is true whether or not the Commission considers additional evidence on review. As was stated in American Smelting & Refining Corp. v. Industrial Com., 13 Ill.2d 275, 279-80: "The arbitrator and the Industrial Commission drew diametrically opposite inferences and conclusions from the medical testimony. Regardless of whether the commission hears testimony additional to that heard by the arbitrator, it exercises an original jurisdiction and is in no way bound by the arbitrator's findings." When the arbitrator and the Commission reach different conclusions, a court will not overturn the Commission's decision unless it is contrary to the manifest weight of the evidence. Esposito v. Industrial Com., 12 Ill.2d 305, 306.

The respondent argues that the petitioner failed to prove a causal relation between Bamberger's death and his work on the irrigation system. It says that his death while announcing a baseball game, which occurred more than five weeks after he was ...

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