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12/29/89 the County of Tazewell, v. the Industrial Commission

December 29, 1989

THE COUNTY OF TAZEWELL, APPELLANT

v.

THE INDUSTRIAL COMMISSION ET AL. (RUTH MORRIS ET AL., APPELLEES). -- R.A. CULLINAN & SONS, INC., APPELLANT,

v.

THE INDUSTRIAL COMMISSION ET AL. (RUTH



APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT, INDUSTRIAL COMMISSION DIVISION

Morris et al., Appellees)

549 N.E.2d 805, 193 Ill. App. 3d 309, 140 Ill. Dec. 154 1989.IL.2072

Appeal from the Circuit Court of McLean County; the Hon. W. Charles Witte, Judge, presiding.

APPELLATE Judges:

JUSTICE WOODWARD delivered the opinion of the court. BARRY, P.J., and McNAMARA, McCULLOUGH, and LEWIS, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WOODWARD

Ruth Morris (Ruth), widow of Ernest Morris (Ernest), filed a separate application for adjustment of claim against each of the respondents, R.A. Cullinan & Sons, Inc. (Cullinan), and the County of Tazewell (Tazewell). These claims against Cullinan and Tazewell were eventually joined. Ernest was found dead at the wheel of a snowplow that he had been driving on April 9, 1982. The arbitrator found that there was no causal connection between Ernest's death and his employment. Having so found, the arbitrator did not rule on the issue of whether Tazewell was a borrowing employer and Cullinan a loaning employer. The Industrial Commission (Commission) modified the arbitrator's decision, finding that Ernest's death arose out of and in the course of his employment and that Tazewell was a borrowing employer and Cullinan was a loaning employer. The circuit court of McLean County confirmed the Commission's decision.

Ruth Morris testified to the following at the arbitration hearing. Ernest had worked for over 30 years as a truck driver for Cullinan. Due to a severe snowstorm, Ernest had been plowing snow in a Cullinan truck fitted with a snowplow in the days preceding his death on April 9, 1982. Tazewell records admitted into evidence showed that Ernest drove a snowplow for eight hours on April 5, eight hours on April 6, and 13 1/2 hours on April 8. Ruth testified that on April 8, Ernest arrived home at 8 p.m. He fell asleep immediately on the couch, which was not his usual custom. Ruth awoke Ernest for dinner, after which he returned to sleep on the couch, again contrary to his usual custom. He arose at 3:30 a.m. on April 9 to return to snow plowing. He normally arose at 5:30 a.m. to prepare for work. Ruth noticed that on the evening of April 8, Ernest looked extraordinarily tired when he came home from work. Ruth testified that Ernest did not customarily work in excess of 12 hours, return home at 8 p.m., and then return to work less than eight hours later.

An April 13, 1982, autopsy report, which had been prepared by Dr. Robert Gregorski, was admitted into evidence. Dr. Gregorski determined the cause of Ernest's death "to be probably due to cardiac arrhythmia secondary to cor bovinum (enlarged heart). The heart also showed evidence of old healed rehematic [ sic ] heart disease with mitral insufficiency."

Ernest's regular physician, Dr. Daniel Baer, testified via an evidence deposition taken October 1, 1984. Dr. Baer, a board-certified family practitioner, first treated Ernest in October 1979. Dr. Baer stated that at each examination he found Ernest to have cardiac arrhythmia (irregular heartbeat), he prescribed several medications, Lanoxin and Lasix, to deal with Ernest's heart disease and its symptoms. Dr. Baer last saw Ernest on January 11, 1982, at which time his heart condition was stable.

Dr. Baer opined that stress could exacerbate cardiac arrhythmia. He also stated that Ernest's employment as a snow-plow driver could have aggravated his heart condition and, therefore, could have caused his death.

Dr. David Best, a board-certified cardiologist, testified to the following on behalf of respondents. Ernest died because the electrical activity of his heart "became chaotic and did not effectively send impulses to the heart which would allow it to beat in a fashion that would support life." Ernest's death could have occurred at any time, even during periods of inactivity. An enlarged heart such as Ernest's was prone to developing lethal cardiac arrhythmia. Ernest's smoking did not lead to an enlargement of his heart, but his alcohol consumption may have led to its enlargement. Dr. Best described Ernest as being moderately overweight, a condition which did not cause his enlarged heart.

On cross-examination, Dr. Best stated that he had never examined Ernest. Dr. Best stated that the enlarged heart was caused by an underlying mitral valve disease that Ernest had had for a number of decades. Dr. Best opined that "it would seem that [Ernest] would have had increased fatigue" on the evening of April 8 and the morning of April 9. Dr. Best further stated that such fatigue could or might have been one of the causative factors in the onset of cardiac arrhythmia that Ernest sustained on April 9.

Tazewell initially argues that the Commission's finding that Ernest's employment caused his death was against the manifest ...


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