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Twice Over Clean, Inc. v. Industrial Commission

March 26, 2003

TWICE OVER CLEAN, INC., APPELLANT,
v.
THE INDUSTRIAL COMMISSION ET AL. (HOWARD HAULK, APPELLEE).



Appeal from the Circuit Court of Peoria County. No. 01-MR-350 Honorable John A. Barra, Judge, Presiding.

The opinion of the court was delivered by: Justice Jack O'malley

UNPUBLISHED

On January 2, 1997, Howard Haulk experienced a heart attack after completing that day's work for his employer, Twice Over Clean Inc. (employer). Claimant filed an application for adjustment of claim pursuant to the Workers' Compensation Act (Act) (820 ILCS 305/1 et seq. (West 2000)). The arbitrator determined that claimant sustained a compensable accident and awarded claimant medical expenses, temporary total disability benefits, and permanent partial disability benefits. The Industrial Commission (Commission) affirmed and adopted the arbitrator's decision, with one commissioner dissenting. The circuit court confirmed the Commission's decision. We reverse.

The following facts were adduced at the hearing before the arbitrator. Claimant testified that he worked for employer as a laborer. On January 2, 1997, he was working in Minneapolis, Minnesota, removing asbestos from an old, disused building. On January 2, 1997, claimant began working there at about 7 a.m. and completed work at 4:30 or 5:30 p.m. Claimant testified that the building was unheated and that the inside temperature of about 5 F. was colder than the outside temperature of about 15-20 F.

Claimant testified that he was engaged in removing asbestos that had previously been collected into large bags, each of which weighed around 40 to 45 pounds. Claimant testified that there were about 500 bags which had to be placed into a commercial dumpster, which was accessed by walking down several stories and across 40 or 50 feet outside of the building. Claimant testified that he conducted the clean-up of the building while wearing a full respirator and protective clothing.

Claimant testified that he began to experience pains in his chest, neck, and left shoulder in the middle of the afternoon, around 2:30 p.m. He ignored the pains and, when they were more intense, sat down for a few minutes until the pains abated sufficiently to allow him to continue working. When claimant ended work and returned to his hotel, he did not feel like eating dinner. At about 7:30, claimant testified that his pains returned once again, but this time, claimant broke into a cold sweat and "got the dry heaves." At that point, claimant requested an ambulance and was taken to the hospital where it was established that claimant had experienced a an acute inferior wall myocardial infarction.

After treatment in Minneapolis, claimant was discharged and returned to Peoria, where he was placed under the care of Dr. Cohen, his family physician, and Dr. Gold, a cardiologist.

Dr. Cohen testified in an evidence deposition that, based on the history related by claimant, the myocardial infarction was caused by the physical activity in which he engaged on January 2, 1997. Employer retained Dr. Wilner, a cardiologist, to review claimant's medical records. Dr. Wilner concluded that claimant's work activities did not cause claimant's myocardial infarction and pointed to enzymatic studies that he interpreted to demonstrate that plaintiff's heart attack did not occur during the afternoon while he was working, but after he had completed his work for the day. On cross-examination, Dr. Wilner conceded that the results of the enzymatic studies could also be interpreted consistently with a heart attack occurring during claimant's working hours.

The arbitrator concluded that claimant had experienced an accidental injury arising out of and in the course of his employment and awarded claimant medical expenses, temporary total disability benefits, and permanent partial disability benefits (the amounts of which are not disputed on appeal). On review, the Commission affirmed the arbitrator's decision, but one commissioner dissented, finding that claimant had not proved a causal relationship between his employment and his heart attack. The trial court confirmed the Commission's decision and employer timely appeals.

On appeal, employer argues that the Commission's decision was against the manifest weight of the evidence on the issue of causation. The claimant is required to establish the elements of his right to compensation under the Act. Wal-Mart Stores, Inc. v. Industrial Comm'n, 326 Ill. App. 3d 438, 443 (2001). For an accidental injury to be compensable under the Act, the claimant must show that the injury arose out of and in the course of his employment. Wal-Mart, 326 Ill. App. 3d at 443. Such a showing requires that a causal connection be demonstrated. Horath v. Industrial Comm'n, 96 Ill. 2d 349, 356 (1983). The Commission is charged with determining the question of causation and we will disturb the Commission's decision only if it is contrary to the manifest weight of the evidence. Horath, 96 Ill. 2d at 356.

It is well established that pre-existing heart disease will not preclude a workers compensation award for a heart attack where work-related stress contributed to the heart attack. See, e.g., City of Des Plaines v. Industrial Comm'n, 95 Ill. 2d 83, 88-89 (1983). However, the "one exception to this rule is when the heart disease is so far gone that any stress, even the most ordinary exertion, will bring on the *** heart attack," the employer is not liable "because it is only coincidence that the attack occurred at work rather than somewhere else." Doyle v. Industrial Comm'n, 86 Ill. 2d 544, 550 (1981). This court has recently confirmed this principle, holding that "a claimant is not entitled to compensation, regardless of whether his condition of ill-being was caused by work-related aggravation of a pre-existing condition, if his physical condition has so deteriorated that his condition of ill-being could have been produced by normal daily activity." Sisbro, Inc. v. Industrial Comm'n, 327 Ill. App. 3d 868, 873 (2002), appeal allowed, No. 93729 (Ill. October 2, 2002). Thus, even if the Commission were to have found that a claimant's illness or accident were caused or aggravated by conditions at his work, the claimant could not recover if his illness or condition were so precarious that any normal daily activity could have triggered it. Here, therefore, if the evidence demonstrated that claimant's heart attack could have been caused by any normal daily exertion, then the exceptions enunciated in Doyle and Sisbro would apply to bar claimant's recovery of workers compensation benefits.

Our review of the record demonstrates that this cause is on all fours with Sisbro and presents an even stronger factual scenario to which to apply the exception. There, the claimant experienced joint degeneration related to his diabetic condition. His doctor opined that the degeneration would be inevitable as a result of his condition and that anything, even normal walking, would cause the degeneration seen in the claimant's foot. Sisbro, 327 Ill. App. 3d at 870. The doctor maintained, however, that the claimant's injury had been caused as he stepped into a pothole while working. Sisbro, 327 Ill. App. 3d at 870. This court determined that the normal daily activity exception applied where the evidence showed that the claimant's condition of ill being could have arisen from any activity, no matter how slight or mundane. Sisbro, 327 Ill. App. 3d at 879.

Here, it is undisputed that claimant experienced a myocardial infarction. What is disputed is the time at which it occurred. However, this dispute is immaterial because, even assuming that claimant's heart attack occurred at work and was caused by employment-related physical stress, the issue remains whether claimant's condition was "so far gone that any stress, ...


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