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Twice Over Clean, Inc. v. Industrial Commission

May 06, 2004

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

PUBLISHED

Following a heart attack, claimant, Howard Haulk, filed an application for workers' compensation benefits pursuant to the Workers' Compensation Act (Act) (820 ILCS 305/1 et seq. (West 2000)). Following the arbitration of his claim, the arbitrator determined that claimant sustained a compensable accident and awarded claimant medical expenses, temporary total disability benefits, and permanent partial disability benefits. Employer, Twice Over Clean, appealed the arbitrator's award, and the Industrial Commission (Commission) affirmed and adopted the arbitrator's decision, with one commissioner dissenting. Employer appealed the Commission's decision and the circuit court confirmed the Commission's decision. Employer appealed to this court and we reversed, finding that claimant was barred from recovering benefits due to the operation of the normal daily activity exception. Twice Over Clean Inc. v. Industrial Comm'n, 337 Ill. App. 3d 805 (2003). Claimant petitioned for leave to appeal to the supreme court. Claimant's petition was denied, but the supreme court, in the exercise of its supervisory authority, directed this court to vacate its judgment and to reconsider it in light of Sisbro, Inc. v. Industrial Comm'n, 207 Ill. 2d 193 (2003) (Sisbro II), which overtured our decision in Sisbro, Inc. v. Industrial Comm'n, 327 Ill. App. 3d 868 (2002) (Sisbro I). We therefore vacate our previous decision and submit this in its place, once again reviewing the evidence adduced before the Commission, but this time in light of our supreme court's decision in Sisbro II, and again we reverse the Commission's decision.

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 previously had 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 initially 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 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. Gold did not testify. However, 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. On cross-examination, however, Dr. Cohen admitted that he did not know that claimant's coronary arteries were 90% occluded and that this information would have been significant in rendering his opinion. Dr. Cohen admitted that, given this degree of occlusion, "any activity or no activity could put sufficient stress on the heart to result in a myocardial infarction." Dr. Cohen further admitted that, based on this information, claimant was a "heart attack waiting to happen."

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 the hours claimant was working. A number of medical records also were presented to the Commission. These records indicate that claimant told the emergency physicians that he had been experiencing some chest pains during the preceding month, and not solely on the day of January 2, 1997.

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 and adopted the arbitrator's decision, but one commissioner dissented, on the grounds that claimant had not proved a causal relationship between his employment and his heart attack. The trial court confirmed the Commission's decision. Employer appealed and we reversed. Twice Over Clean, 337 Ill. App. 3d 805. Claimant petitioned the supreme court for leave to appeal; claimant's petition was denied but the supreme court directed us to reconsider our decision in this cause in light of its decision in Sisbro II, 207 Ill. 2d 193.

On appeal, employer argues that the Commission's decision was against the manifest weight of the evidence on the issue of causation. First, employer argues that the Commission erroneously accepted claimant's and Dr. Cohen's testimony regarding causation. Second, employer argues that, irrespective of causation, the normal daily activity exception should apply to bar claimant's recovery.

In our prior decision we did not address whether claimant's work activities contributed to his infarction. We held that claimant was not entitled to compensation irrespective of causation because, as his own physician admitted, his condition was so deteriorated that any activity, work-related or not, might be sufficient to cause an infarction. We relied on our statement in Sisbro I that "a claimant is not entitled to compensation, regardless of whether his condition 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 I, 327 Ill. App. 3d at 873. We derived the rule in Sisbro I from the following statement by the supreme court in County of Cook v. Industrial Comm'n, 69 Ill. 2d 10, 17-18 (1977):

"The mere fact that an employee might have suffered a fatal heart attack, even if not working, is immaterial, for the question before the Commission is whether the work that was performed constituted a causal factor. [Citation.] The sole limitation to the above general rule is that where it is shown the employee's health has so deteriorated that any normal daily activity is an overexertion, or where it is shown that the activity engaged in presented risks no greater than those to which the general public is exposed, compensation will be denied. " (Emphasis added).

We noted that subsequent cases had taken this language as establishing two exceptions to the general rule that compensation is due where a work-related activity causes the aggravation of a pre-existing condition. See Sisbro I, 327 Ill. App. 3d at 872. For example, in General Refractories v. Industrial Comm'n, 255 Ill. App. 3d 925, 931 (1994), the appellate court said: "Generally, an employer takes its employees as it finds them, and a pre-existing condition does not bar compensation for an injury if the employment was a causative factor. [Citation.] There is an exception to this rule, however, where the employee's health has so deteriorated that any normal, daily activity could have caused the injury, or where the activity engaged in presents risks no greater than that to which the general public is exposed. [Citation.]" According to the rule applied in General Refractories and Sisbro I, a claimant who seeks compensation for an alleged work-related aggravation of a pre-existing condition cannot recover if either the aggravation was not caused by his work activities or, where causation exists, one or both of the exceptions applies.

In Sisbro II, our supreme court held that we erred in characterizing the normal daily activity and no greater risk factors as exceptions that bar recovery despite the existence of a causal connection between the claimant's employment and his injury. After reviewing the cases upon which County of Cook relied in describing the no greater risk and normal daily activity factors as "limitations" on recovery, the supreme court rejected the two-step process we applied in Sisbro I:

"[These cases] do not stand for the proposition that where a causal connection between work and injury has been established, it can be negated simply because the injury might also have occurred as a result of some 'normal daily activity.' Rather, these cases demonstrate that where 'any normal daily activity is an overexertion' or whether 'the activity engaged in presented risk no greater than those to which the general public is exposed' are matters to be considered when deciding whether a sufficient causal connection between the injury and the employment has been established in the first instance. We have never found a causal connection to exist between work and injury and then, in a further analytical step, denied recovery based on a 'normal daily activity exception' or a 'greater risk exception.' Sisbro II, 207 Ill. 2d at 211-12. (Emphasis added.)

According to the supreme court, a claimant's vulnerability to injury during normal daily activities is not an "exception" that applies to bar recovery despite the existence of a "sufficient causal connection" between work and injury, but instead is a "limitation" on when a "sufficient causal connection" may be found in the first instance. The supreme court denied that it has ever found an injury non-compensable where there existed a "sufficient causal connection" between work and injury, because there is no analytical step beyond the causation inquiry.

Before we apply it to the facts of this case, we explain our understanding of this rule. Although the supreme court implies in Sisbro II that the concept of "sufficient causal connection" is no innovation, our research discloses that the phrase appears only in one majority opinion and one dissent before Sisbro II. See Brewster Motor Co. v. Industrial Comm'n, 36 Ill. 2d 443, 450 (1967); C.A. Dunman Co. v. Industrial Comm'n,16 Ill. 2d 102, 114 (Klingbiel, J., dissenting). In Brewster, the word "sufficient" does not appear until the final, conclusory sentence that states the holding of the court on the issue of causation. See Brewster, 36 Ill. 2d at 450 ("In this manner, [the claimant's] employment contributed to his injuries and death, and such contribution constitutes a sufficient causal connection between work and accident within the degree of causation necessary to satisfy the 'arising out of' requirement of our Workmen's Compensation Act"). There is nothing in the remainder of the opinion to suggest that the word was intended as anything but an embellishment. Likewise, the dissenting opinion in C.A. Dunham, uses the phrase "sufficient causal connection" in passing while addressing a counterfactual hypothetical and cites no authority to support the inclusion of "sufficient." See C.A. Dunham, 16 Ill. 2d at 115 (Klingbiel, J., dissenting) ("I do not mean to imply that had [the employee] been employed by the United Air Lines there would have been a sufficient causal connection with his employment").

What makes a cause "sufficient"? If a "sufficient cause" is a cause distinguished by some degree of dominance, then the concept indeed is a novelty in workers' compensation cases because the supreme court has always refused to distinguish among degrees of causation:

" 'To come within the statute the employee must prove that some act or phase of the employment was a causative factor in the ensuing injury. He need not prove it was the sole causative factor, nor even that it was the principle [sic] causative factor, but only that it was a causative factor in the resulting injury.' " Sershon v. Industrial Comm'n, 63 Ill. 2d 395, 399, (1976), quoting Republic Steel Corp. v. Industrial Comm'n, 26 Ill. 2d 32, 45 (1962).

See also Jefferson Electric Co. v. Industrial Comm'n, 64 Ill. 2d 85, 91 (1976) ("[A] work-connected accident need not be the sole, or even the dominant factor causing disability").

Sisbro II supplies a specialized definition of "sufficient causal connection" for aggravation cases, partially relieving us of the problems we see in attempting to define the concept in light of established supreme court precedent. According to Sisbro II, a work activity is a "sufficient cause" of the aggravation of a pre-existing condition if none of the limitations articulated in County of Cook apply, that is, if the work activity presented risks greater than to which the general public is exposed and the claimant's condition was not so deteriorated that his injury could have occurred through normal daily activity. In rejecting the approach we ...


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