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03/27/96 ELSIE GHERE v. INDUSTRIAL COMMISSION ET

March 27, 1996

ELSIE GHERE, WIDOW OF JIM GHERE, DECEASED, APPELLANT,
v.
THE INDUSTRIAL COMMISSION ET AL. (HOWELL ASPHALT, APPELLEE).



Appeal from Circuit Court of Douglas County. No. 94MR11. Honorable Frank W. Lincoln, Judge Presiding.

Released for Publication May 6, 1996. As Corrected August 26, 1996.

Honorable Michael J. Colwell, J., Honorable John T. McCULLOUGH, P.j., Honorable Thomas R. Rakowski, J., Honorable William E. Holdridge, J., Honorable Philip J. Rarick, J. McCULLOUGH, P.j., and Rakowski, Holdridge, and Rarick, JJ., concur.

The opinion of the court was delivered by: Colwell

The Honorable Justice COLWELL delivered the opinion of the court:

Claimant, Elsie Ghere, widow of Jim Ghere, appeals the trial court's confirmation of the Industrial Commission's (Commission) decision which affirmed and adopted the arbitrator's decision. The claimant argues on appeal that (1) the arbitrator erred in not allowing Dr. Climaco to testify at the arbitration hearing; (2) the arbitrator erred in not admitting into evidence a letter from the Illinois State Water Survey; and (3) the Commission's finding that her deceased husband did not sustain an injury on August 22, 1990, which arose out of and in the course of his employment, is against the manifest weight of the evidence. We affirm.

Jim Ghere (decedent) collapsed at 10:30 a.m. on August 22, 1990, while working for appellee, Howell Asphalt. The decedent later died when emergency personnel were unable to revive him. The death certificate indicates that the decedent died as a result of a heart attack. The decedent was 63 years old when he died.

The decedent was working as a flagman for Howell Asphalt at the time he collapsed. He got to work at 6:30 a.m. on August 22, 1990. His job responsibility as a flagman on August 22, 1990, was to walk approximately 150 feet ahead of the paving machine to keep traffic out of the way. The decedent collapsed when Howell Asphalt was in the process of paving a highway.

Roger Carter testified on behalf of the appellant. He testified that he was working with the decedent on August 20, 21, and 22, 1990. He stated that the decedent worked 10 to 11 hours on August 20 and 21, 1990. Carter stated that it was very hot, humid and muggy on August 22, 1990, and that the decedent was sweating. He testified that the temperature was 80 to 85 degrees at 6:30 a.m. on August 22, 1990. He testified that the heat of the asphalt adds 80 to 100 degrees to the air temperature. Carter stated that the decedent was at least 150 feet in front of the paver when he worked as a flagman on August 22, 1990. He testified that they had laid about 1 1/2 to 2 miles of asphalt before the decedent collapsed. Carter testified that the decedent never complained to him about chest pains and he did not see the decedent being struck by any type of vehicle while he was flagging. Carter stated that he did not see the decedent take a break to get water or go to the bathroom between 7 a.m. and 10:30 a.m. on August 22, 1990.

Tim Murphy also testified on behalf of the claimant. Murphy worked with the decedent on August 22, 1990. He estimated the temperature on August 22, 1990, at 10:30 a.m. to be in the mid-eighties. He stated that the decedent was standing an average of 150 feet away from the paver. Murphy testified that the decedent did not complain to him about chest pains and that he did not see the decedent being struck by any type of vehicle while he was flagging on August 22, 1990. He testified that at 10:30 a.m. he told the decedent that he could get a drink of water and use the bathroom. He stated he observed the decedent get a drink of water and that the decedent collapsed when he returned to his position.

The claimant, the widow of the decedent, testified that the decedent had prostate surgery in April 1990. She stated that the decedent was off work for approximately three months and that he returned to work for the appellee on August 20, 1990. The appellant also stated that the decedent had no heart problems or complaints prior to August 1990.

Dr. Raymon Climaco testified on behalf of the appellant. Dr. Climaco's field of specialty is emergency room medicine. He testified that he treated the decedent on several occasions beginning in December 1979. The last time decedent saw Dr. Climaco was in early part of 1990. Dr. Climaco testified that he never treated decedent for heart problems. The employer objected to Dr. Climaco giving any opinions regarding the cause of the decedent's death and regarding whether the decedent's work activities or the work environment was causally related to his death because his opinions on these matters were not furnished to the employer 48 hours before the arbitration hearing. The arbitrator sustained that objection.

The claimant presented the deposition testimony of Dr. Stuart Frank, a cardiologist. Dr. Frank testified that the decedent's medical records did not provide sufficient information for him to make a definite determination regarding the cause of the decedent's death and causal connection between the decedent's death and the environmental circumstances surrounding his sudden death. Dr. Frank stated that the cause of decedent's death was most likely a myocardial infarction and/or a fatal ventricular arrhythmia. Dr. Frank explained that a myocardial infarction is, in lay terms, a heart attack, and a fatal ventricular arrhythmia refers to an irregular heartbeat where the heart is beating in such a way that it is not able to pump any blood out into circulation, which results in the patient's death.

Claimant's attorney asked Dr. Frank a series of hypothetical questions. The attorney asked Dr. Frank to assume that the decedent had returned to work as a flagman after prostate surgery; that he began work at 7 a.m.; that the temperature was 85 to 90 degrees; that traffic was heavy when he was flagging; and that he suffered a heart attack at 10:30 a.m. Appellant's attorney asked Dr. Frank if the decedent's heart attack could have been precipitated or accelerated by excessive amounts of gas or carbon monoxide at work, and Dr. Frank replied: "If he had been exposed to excessive amounts of gas or carbon monoxide, it's possible it could have or might have precipitated or accelerated the development of the fatal arrhythmia or a myocardial infarction."

Dr. Frank was also asked whether the employment environment, which was incorporated in the hypothetical question, could have aggravated or precipitated any preexisting or underlying heart condition wherein the decedent eventually developed the arrhythmia or myocardial infarction. Dr. Frank replied: "I cannot, with any medical confidence, address the question of the nature of his work ...


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