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03/08/96 CONCETTA CHIDICHIMO v. INDUSTRIAL

March 8, 1996

CONCETTA CHIDICHIMO, WIDOW OF MARTIN CHIDICHIMO, DECEASED, APPELLANT,
v.
THE INDUSTRIAL COMMISSION ET AL. (UNIVERSITY OF CHICAGO PRESS, APPELLEE).



Appeal from the Circuit Court of Cook County. Honorable Randye A. Kogan, Judge Presiding.

The Honorable Justice Rakowski delivered the opinion of the court: McCULLOUGH, P.j., and Colwell, Holdridge and Rarick, JJ., concur.

The opinion of the court was delivered by: Rakowski

The Honorable Justice RAKOWSKI delivered the opinion of the court:

Concetta Chidichimo (claimant), widow of Martin Chidichimo (decedent), filed an application for adjustment of claim pursuant to the Workers' Compensation Act (the Act) (820 ILCS 305/1 et seq. (West 1994)), alleging her husband sustained a fatal heart attack on March 18, 1983, which arose out of and in the course of his employment with University of Chicago Press (employer). The arbitrator denied benefits, finding there was no accidental injury that arose out of or in the course of employment. Claimant presented additional evidence on review to the Industrial Commission (Commission), consisting of claimant's third subpoena issued on February 8, 1984, which requested decedent's time tickets, and correspondence from employer's counsel dated February 21, 1984, which denied the request. The Commission affirmed and adopted the decision of the arbitrator; however, it failed to the address additional evidence presented on review. On that basis, the circuit court remanded the case to the Commission. After considering the entire record and additional evidence presented on review, the Commission affirmed the decision of the arbitrator, finding that claimant failed to prove decedent sustained an accidental injury arising out of and in the course of his employment. The circuit court confirmed the Commission's decision. We affirm.

On March 18, 1983, decedent suffered a fatal heart attack while working as a linotype operator for employer. Claimant contends her husband's heart attack was caused as a result of his lifting and moving 25- to 35-pound print magazines that day. Employer denies the claim, arguing that decedent's department was slow that day; hence, there was nothing for him to lift or move. Furthermore, employer contends decedent suffered the heart attack during the lunch break.

On August 23 and December 20, 1983, claimant served subpoenas on employer seeking decedent's employment records. Employer responded to both subpoenas, noting the materials provided "are the only records in my/our possession or control relating to the [subpoena]." On February 8, 1984, claimant served another subpoena, which specifically asked for "employee daily time tickets." Employer objected to the subpoena on the basis that there is no Commission rule that provides for pretrial discovery.

In February 1988, the arbitration hearing began. Claimant called Gerald Davy, general manager of the printing department in 1983, who testified that decedent's job normally required him to lift and carry 25- to 30-pound print magazines to his machine in order to change the type size. Davy stated that on the date of decedent's death, there was less work to be done because employer was phasing out decedent's department. Therefore, the majority of decedent's work as a linotype operator would likely have consisted of sitting at the machine punching keys. Davy did not know whether decedent actually carried and lifted magazines on the date he died, however, he testified that decedent's daily time ticket would indicate which jobs he performed. It was procedure for the employees to fill out their time tickets during the course of the day. Each day, the time tickets were sent to the accounting department where the information was loaded into a computer. Employer would keep the records on a computer for two years and then destroy them. In accordance with this procedure, decedent's March 18, 1983, time records had been destroyed prior to the 1988 arbitration hearing.

Glenn Schwolow, foreman, acknowledged that decedent's ordinary duties consisted of lifting 30-pound magazines about five or six times per shift. He stated, however, that March 18, 1983, was a slow day because employer was phasing out the department; thus, decedent did not have to change a single magazine. Rather, on that date decedent worked on a sociology journal, which did not provide any occasion for changing the magazine. Schwolow also testified that during the lunch break (between 11:30 a.m. and 12 noon), decedent began complaining of terrific headaches. Shortly thereafter, decedent had trouble breathing. The paramedics were called to take decedent to the hospital, where he later died.

Claimant's medical expert, Dr. William Fitzsimmons, testified that decedent died from an acute cardiac incident brought on by physical or emotional stress. He stated, however, that if decedent did not lift or move heavy magazines on the day he died, then work was probably not the cause of decedent's heart attack.

Employer's expert, Dr. William Buckingham, opined based on a hypothetical question that decedent's death was not work related. He also stated that even if decedent had changed a 35-pound magazine that day, it would not have triggered the heart attack "because the weight of the magazine would not be sufficient to induce any changes in the hemodynamics of his circulation that could in any way be considered as a factor."

As stated above, in accordance with routine procedure, employer destroyed decedent's time records of March 18, 1983, prior to the arbitration hearing. Throughout the hearing, claimant asserted a claim for a presumption that the time sheets would show that decedent worked with heavy magazines on the date he died. The arbitrator denied claimant's request, stating in the decision that claimant's attorney never subpoenaed the specific records. *fn1 The arbitrator also noted:

"The facts do not support a conclusion that [employer] intentionally destroyed or withheld documents. [Claimant] is not entitled to the presumption that the document would support her claim that the deceased employee lifted heavy objects on the day of his heart attack. Moreover, such a presumption, if it existed, is not evidence. The direct evidence of the work performed was the eyewitness testimony of the foreman, Glenn C. Schwallow [sic ]. As soon as [employer] produced direct evidence of the work performed by the Deceased, the presumption vanished entirely. Diederich v. Walters, 65 Ill. 2d 95, 2 Ill. Dec. 685, 357 N.E.2d 1128 (1976)."

On review, the Commission was presented with additional evidence, including claimant's February 8, 1984, subpoena, which requested decedent's daily time tickets, and employer's response dated February 21, 1984, which denied the request on the basis there is no pretrial discovery in workers' compensation cases. The Commission adopted and affirmed the arbitrator's decision denying benefits. With regard to the subpoena and claimant's request for a presumption in her favor, the Commission concluded:

"Section 7030.50 of the Commission Rules [(50 Ill. Adm. Code ยง 7030.50 (1994))] governs subpoena practice. Regarding use ...


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