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11/03/88 the Industrial Commission v. the Industrial Commission

November 3, 1988




530 N.E.2d 617, 176 Ill. App. 3d 317, 125 Ill. Dec. 459 1988.IL.1605

Appeal from the Circuit Court of Macoupin County; the Hon. Joseph P. Koval, Judge, presiding.

Rehearing Denied December 14, 1988.


JUSTICE BARRY delivered the opinion of the court. WOODWARD and CALVO, JJ., concur. JUSTICE McCULLOUGH, Dissenting. McNAMARA, J., joins in this Dissent.


The petitioner, Charles Simcox, sought benefits under both the Workmen's (now Workers') Compensation Act (Ill. Rev. Stat. 1977, ch. 48, par. 138.1 et seq.) and the Worker's Occupational Diseases Act (Ill. Rev. Stat. 1977, ch. 48, par. 172.36 et seq.) for exacerbation of a coronary disorder due to trauma, coronary artery disease and other injuries sustained while he was employed by the respondent, Illinois Power Company (the Company). Adjudicating all issues pursuant to the Workmen's Compensation Act, the arbitrator found it uncontroverted that the accident occurred, that it arose out of and in the course of employment and that there was no causal connection or permanent disability, and she denied the petitioner's claim. The Industrial Commission affirmed, but the circuit court of Macoupin County reversed and remanded the cause to the Commission to determine compensation. The Company's appeal from that decision was dismissed for lack of a final order. Upon remand the Commission rendered a total and permanent award. On January 14, 1987, the circuit court confirmed the award, and the respondent again appeals to this court.

In 1947 the petitioner began to work for the Company as an electrical lineman. Five years later he was promoted to line crew foreman. In September of 1975 the petitioner suffered a nonwork-related acute, but mild, inferior wall myocardial infarction. He was treated conservatively. The following April he resumed his supervisory position, which involved inspecting work orders, assigning jobs, ordering materials, making materials and equipment accessible to his crew, keeping time sheets and other records, collecting data from transformers, occasionally climbing with his crew, digging holes, framing poles and crossarms and operating equipment. Between April of 1976 and August 22, 1977, the petitioner felt good and seemed healthy. On August 22, 1977, the then 59-year-old petitioner and his crew completed two underground service jobs and proceeded to the pole yard to unload a shipment of poles, some of which had shifted forward against the flatbed trailer's steel, horseshoe-shaped, bulkhead. After removing some poles, the crew attempted to pry the bulkhead loose with crowbars and a metal sling attached to a winch line. The petitioner was standing on the truck's "belly" gas tank. Suddenly the bulkhead detached, struck the petitioner's left hip and chest, and propelled him through the air some 26 feet to the ground. He landed primarily on his heels and left hand.

The following morning the petitioner consulted his local general practitioner, Dr. Marciukaitis, but then returned to the Company office to do paper work the remainder of the week. On the weekend the petitioner's chest and shoulder pains suddenly intensified when he was working at home on his washing machine. On August 29, Dr. Marciukaitis hospitalized the petitioner in the local hospital's intensive coronary care unit for pain in the heart region radiating to the left shoulder, left arm and back. The petitioner exhibited a shortness of breath and persistent pain in his hand, arm, and heels.

Several days later the petitioner transferred to Barnes Hospital in St. Louis, Missouri, where he consulted daily with Dr. Edward Massie, a board-certified specialist in cardiology and cardiovascular diseases. Then to alleviate high grade obstructions in the petitioner's left anterior descending coronary artery and his right coronary artery, Dr. Massie referred him for double coronary bypass surgery. That was performed on September 21, 1977. The petitioner continued to see Dr. Massie thereafter. Dr. Massie detected no further deterioration or permanent heart damage, but observed that the petitioner's coronary artery disease and chest tenderness persisted.

The issues presented for our review are: (1) Whether the circuit court improperly substituted its judgment for that of the Industrial Commission, and (2) whether there is sufficient evidence to support an award of total permanent disability under section 8(f) of the Workmen's Compensation Act of Illinois (Ill. Rev. Stat. 1977, ch. 48, par. 138.8(f)).

Because we are concerned primarily with the petitioner's coronary disorder and how it may have been affected by the incident of August 22, 1977, we will now detail the evidence depositions of board-certified attending cardiologist Dr. Massie and the respondent's board-certified cardiologist, Dr. Scherlis. Neither doctor testified before the arbitrator or the Commission.

It was the opinion of Dr. Massie that the petitioner's condition was not directly related to his 1975 infarction. Instead, Dr. Massie concluded that the August 22, 1977, accident precipitated total disability by exacerbating the petitioner's coronary artery disease and by directly affecting the condition of his heart. The doctor further opined that the petitioner's left peri-nipple area chest pains were anginal as well as due to trauma, and that physical exertion could have precipitated the petitioner's complaints. Further he specifically indicated that such a harrowing experience could aggravate the petitioner's arteriosclerotic disease and produce anginal pain, as would excitement, consternation, apprehension and argumentation. He said that upon surgical intervention performed within a month of the accident it was found that the petitioner had fortunately developed good collateral circulation about his heart subsequent to his 1975 myocardial infarction. Dr. Massie also verified that the onset of symptoms following the precipitating factor can be delayed.

Dr. Scherlis did not examine the petitioner. He based his opinion on the petitioner's medical records. In his deposition Scherlis stated that arteriosclerosis is not caused by trauma and concluded as follows: Arteriosclerotic heart disease caused blockage in at least one of the petitioner's blood vessels and resulted in his 1975 infarction; thereafter, he improved, stabilized, experienced occasional angina and again developed progressive hardening of the arteries; the external trauma of August 22, 1977, neither caused nor worsened the petitioner's disease; on August 27 when the petitioner worked on a washing machine "he experienced angina, discomfort due to the heart's increased work demand and inadequate coronary blood supply"; no further damage to the petitioner's heart muscle was detected thereafter, but subsequently, due to hardening and accumulations, two of the petitioner's major coronary arteries were obstructed; in 1979, the petitioner's coronary artery disease persisted.

Dr. Scherlis further opined that there was no causal connection between the accident and subsequent occurrences with the petitioner's heart, as no medical evidence indicated that the petitioner's coronary condition was attributable to or worsened by the accident. He added that the gradual coronary sclerotic process could have caused the blockage as well as the exacerbations and remissions in the petitioner's condition.

It is undisputed that this petitioner suffered arteriosclerosis. It also appears undisputed by the medical witnesses that the onset of the disease here was not caused by trauma. However, neither of the foregoing is of particular concern here. The determinative question is whether this petitioner's experience of August 22, 1977, aggravated his coronary disease.

The petitioner suffered an acute, but apparently mild, myocardial infarction in 1975. He quit smoking, was treated with medication and a light exercise program, and was able to return to his physically active job about six months later. Except for one reading, his blood pressure was within low normal limits. He worked without interruption and without any ill-feeling for about a year and a half, until August 22, 1977. Nitroglycerine was prescribed for any anginal pain he might encounter. He denied having had to use any nitroglycerine after his return to work. It appears, however, that Dr. Scherlis, for his opinion testimony, assumed that the petitioner did use nitroglycerine from time to time during this period.

The petitioner further testified that his job as a crew foreman was a responsible one and that it called for some rather substantial physical exertion. He said he performed the exact same duties after the 1975 myocardial infarction as before and then went on to describe the accident of August 22, 1977. A co-worker and eyewitness, Charles Folkers, verified all of this testimony by the petitioner. Petitioner testified that he was dazed and sore as he picked himself up off the ground, his trousers were torn from the left hip area to the top of his left boot, his left hip and buttocks were cut and scratched, his hand was swollen. He sensed pain in his left arm and shoulder also. He said he told the crew to proceed while he rested and rendered some first aid to himself. He finished the day at the Company warehouse, and then went home, took a sleeping pill and went to bed. The next morning he reported the incident and the local Company manager authorized him to go to his family doctor. After X rays were taken at the local area hospital at Litchfield, he returned to the Company office and finished the week, by his choice, at the Company plant, doing paper work. Because the injured areas became more painful, he was admitted to the Litchfield hospital on the following Monday. He was put in intensive care and became bilious when he tried to eat. He remained in intensive care for about the first four days under the care of Dr. Marciukaitis and Dr. Villegas, in consultation, as was the case when he suffered the myocardial infarction in 1975. He was complaining of chest pain through his back and a sore hand, shoulder, arm and heels. He said he performed no work about his house that prior weekend.

Dr. Massie testified that upon admission to St. Francis Hospital in Litchfield, Illinois, on August 29, 1977, petitioner complained of pain in the heart region radiating to the left shoulder, left arm and back. The diagnosis was coronary disease. He underwent cardiac catheterization and cardioangiographic study on September 13, 1977, at Barnes Hospital, where the findings indicated a very high grade obstruction in the left anterior descending coronary artery and in the right artery. Bypass heart surgery followed.

Pertinent questions to Dr. Massie and his answers on both direct and cross-examination follow:

"Q. . . . [Do] you have an opinion within a reasonable degree of medical certainty whether Mr. Simcox's physical condition . . . [on] September 2, 1977, was related to his past medical history, particularly inferior myocardial infarction in 1975?

A. Yes. From the time I saw this patient initially I would say the problems were not related directly to the inferior myocardial infarction in the past -- because that occurred. But I would indicate that the subsequent events did exacerbate his coronary artery problem, and very possibly the accident which involved trauma to the chest could have contributed to the heart by virtue of a contusion as the same time.

Q. Doctor, based on those same facts that we have here do you have an opinion within a reasonable degree of medical certainty whether Mr. Simcox's heart disorder, or damage, as existing prior to August 22, 1977, was affected by the blow or fall he sustained while working for Illinois Power Company on August 22, 1977?

A. I do have an opinion.

Q. What is that?

A. The opinion is that the blow had a direct effect of a deteriorating nature on his heart condition as a result of the accident.

Q. On what do you base that . . ., Doctor?

A. I base it on the fact that, as stated before, he had a very good recovery. He was asymptomatic. He worked for a certain number of months very successfully and then suddenly with the accident, precipitously, he became worse.

Q. Doctor, based on these same facts do you have an opinion within a reasonable degree of medical certainty whether the blow and the fall sustained by Mr. Simcox on August 22, 1977, was the proximate cause and contributing to, or precipitating, Mr. Simcox's present physical condition, particularly any heart disorder?

A. Yes, I have an opinion.

Q. What is that opinion?

A. That it was a precipitating episode for worsening of his heart condition.

Q. And do you have an opinion as to whether that worsening has rendered him totally and permanently disabled for employment?

A. Yes, I definitely do, because it did contribute and cause his state of total disability for employment.

Q. Doctor, considering the facts here and previously set out, do you have an opinion within a reasonable degree of medical certainty whether the blow or fall sustained by Mr. Simcox on August 22, 1977, was the proximate cause contributing to, or precipitating, aggravation of any pre-existing coronary disorder of Mr. Simcox?

A. Yes, I feel that it did aggravate the pre-existing condition."

Dr. Massie continued that the accident was the proximate cause for the hospitalizations in Litchfield and at Barnes Hospital. He also stated that there was a normal, good recovery following the 1975 infarction, but that the course of that recovery was suddenly changed in a deteriorating fashion by the accident, and that the accident trauma exacerbated or flared up the petitioner's pre-existing condition. The doctor repeated that the petitioner was thus rendered totally and permanently disabled for his employment.

With regard to the medical opinions with which we are specially concerned, Dr. Scherlis, upon being deposed, answered that he had reviewed all of the petitioner's medical records subsequent to the accident which verified that the petitioner did not suffer a myocardial infarction as a result of the accident. He said he agreed with the hospital record, which indicated that the petitioner was suffering from coronary heart disease and angina, and that the unchanged electrocardiograms taken ...

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