Court of Appeals of Illinois, Second District, Workersâ Compensation Commission Division
from the Circuit Court of Kane County No. 15-MR-736 Honorable
David R. Akemann, Judge, presiding.
JUSTICE HARRIS delivered the judgment of the court, with
opinion. Justices Hoffman, Hudson, and Moore concurred in the
judgment and opinion. Presiding Justice Holdridge dissented,
1 On February 25, 2014, claimant, Kevin Johnston, filed an
application for adjustment of claim pursuant to the Illinois
Workers' Compensation Act (Act) (820 ILCS 305/1 to 30
(West 2012)), seeking benefits from The East Dundee Fire
Protection District (employer). He alleged he suffered
injuries to his person "while shoveling snow in [the]
fire department parking lot." Following a hearing, the
arbitrator denied benefits under the Act, finding the
employer had successfully rebutted the presumption under
section 6(f) of the Act (820 ILCS 305/6(f) (West 2012)) that
claimant's heart or vascular disease or condition arose
out of his employment as a firefighter and further, that
claimant did not suffer accidental injuries which arose out
of his employment nor was his current condition of ill-being
causally related to the alleged accident. On review, the
Illinois Workers' Compensation Commission (Commission)
affirmed and adopted the arbitrator's decision. On
judicial review, the circuit court of Kane County confirmed
the Commission's decision.
2 On appeal, claimant asserts that the Commission erred in
finding the employer had successfully rebutted the statutory
presumption found in section 6(f) of the Act. In the
alternative, claimant contends that the Commission's
finding his heart attack did not arise out of and was not
causally related to a work accident was against the manifest
weight of the evidence. We affirm in part and vacate in part.
3 I. BACKGROUND
4 The following evidence relevant to this appeal was elicited
at the July 14, 2014, arbitration hearing.
5 Claimant testified he was 43 years old and had been
employed by the employer as a fulltime firefighter, in
various ranks, since 1999, most recently as a lieutenant. As
a full-duty firefighter, claimant worked shifts of 24 hours
on and 48 hours off, with each 24-hour shift beginning and
ending at 6 a.m. Claimant explained that regardless of his
rank, he always had full firefighter duties which included
"responding on calls, dealing with structure fires,
ceiling detectors, fire alarms[, ] *** auto accidents,
patient care, [and] mitigating the hazards."
6 Claimant denied any knowledge of having a heart condition,
heart disease, or hypertension prior to February 5, 2014. He
testified that he smoked 1 to 1½ packs of cigarettes
per day since the 1990s, but in January 2014, he started
smoking an electronic cigarette, which uses liquid nicotine,
in an attempt to quit smoking. In February 2014, claimant
weighed approximately 265 pounds and stood six feet one inch
7 Claimant testified he drove a diesel pickup truck as his
personal vehicle and, in the winter, he parked his truck next
to the fire department's "back garage" so he
could plug the truck's engine block heater into an
electrical outlet. If a parking spot next to the garage was
not available when he arrived at work, he would park wherever
a spot was available, and once a spot opened up by the
garage, he would move his truck.
8 Claimant further testified that when snow was on the
ground, the firefighters on duty would remove the snow from
the sidewalks, parking lot, and driveway with shovels and
snowblowers which were provided by the employer and stored in
the fire department's garage. According to claimant, it
was not uncommon for him to clear snow by himself, although
often a group of firefighters worked together to clear the
9 Claimant testified he reported to work shortly before 6
a.m. on the morning of February 5, 2014. He could not recall
what the weather was like that morning. His last memory prior
to suffering a heart attack that morning and waking up in the
hospital was "talking to one of the guys that was coming
off shortly after I got in." He did not recall using a
snowblower or a shovel to clear snow that morning. He
admitted he could have gone outside to smoke a cigarette that
morning, but he could not recall that either.
10 Claimant underwent emergency quadruple bypass surgery on
February 6, 2014. At the time of the arbitration hearing,
claimant had just finished 12 weeks of cardiac rehab. He had
not yet been released to return to work.
11 The evidence depositions of four fellow firefighters,
Tyler Burd, Ashley Rebou, Jeremy Schwab, and Kanen Terry,
were introduced into evidence.
12 Tyler Burd testified he worked for the employer as a
firefighter and Emergency Medical Technician (EMT). According
to Burd, on the morning of February 5, 2014, claimant walked
into the fire station "around 5:59" a.m. which was
"unusually late for him." Burd stated that upon
entering the building, claimant walked past him on the main
floor and proceeded upstairs to the dayroom where he sat down
and spoke with Lieutenant Parthun for "about half an
hour or so." Burd testified that after the two had
finished their conversation, Lieutenant Parthun told Burd
that claimant "was going outside to shovel around his
car." According to Burd, there was approximately three
to four inches of snow on the ground that morning.
Approximately 10 minutes after Lieutenant Parthun had
mentioned claimant was going outside to shovel snow, Burd
looked out the back door and saw claimant lying face down at
the south end of the garage. He ran over to claimant, rolled
him over, and found he did not have a carotid pulse, so he
ran inside to call for help and then returned to claimant.
Burd testified that Schwab and Rebou rushed out. As Rebou
started compressions, Burd ran back inside to get Lieutenant
Parthun. Within a few minutes, they had claimant on a
backboard and took him into the building where they used a
defibrillator and "[b]rought him back to life."
They then put claimant in an ambulance and transported him to
the hospital. According to Burd, "[t]here was a lot of
snow on the ground, so it was a very slow ride" to the
13 Burd did not recall hearing a snowblower on the morning of
February 5, 2014, but he recalled having seen a snowblower in
front of the garage which was approximately five to six feet
from claimant's body. The snowblower had been removed
from the garage and the garage door was closed. Burd recalled
seeing claimant's truck and testified that the snow
around the truck had been cleared. Burd acknowledged that the
spot would have been empty of snow if another vehicle had
been parked there overnight. Burd testified that snow removal
was regularly done by the firefighters and that "[i]f
there's snow on the ground, we removed it."
14 Burd further testified he knew claimant smoked "quite
a bit, " or "at least two packs a day."
According to Burd, claimant would typically smoke out by the
garage. He also testified that claimant was "not the
healthiest eater, " as he often observed him eating fast
15 Ashley Rebou testified she worked for the employer as a
firefighter/paramedic. She was working on the morning of
February 5, 2014, and was in the dayroom when claimant came
in. According to Rebou, claimant "just sat down"
and "[d]idn't say anything" which was unusual,
but then she got up and went downstairs to check her
"rig" while claimant and Lieutenant Parthun talked.
Shortly thereafter, while she and other firefighters were in
the main ambulance, claimant walked past them and went
outside. Lieutenant Parthun stopped to talk and told them
that claimant "was going out to shovel or get the snow
out of his parking spot." Rebou testified that a little
later, Schwab came in and told them that claimant "was
down, " so she went outside, checked for a pulse, and
started compressions. They later moved him inside. According
to Rebou, while outside, she observed a snowblower in front
of the garage door, approximately two to three feet from
16 Jeremy Schwab testified that, on February 5, 2014, he was
working for the employer as a firefighter/paramedic. He
recalled that claimant arrived to work at 5:59 a.m. He stated
it was unusual for claimant to arrive so late. He observed
claimant come into the dayroom, and without saying anything
to anyone, he "flopped into the recliner as if
something-something was off." Schwab stated that around
6:30 or 6:45 a.m., he heard claimant "was outside snow
blowing." Shortly thereafter, he responded to Burd's
call for assistance and saw claimant face down in the snow.
Schwab recalled seeing a snowblower and testified there was
one to three inches of snow on the ground.
17 Kanen Terry testified he worked for the employer as a
firefighter/paramedic. He recalled that claimant arrived to
work at approximately 6 a.m. on the morning of February 5,
2014. According to Terry, this was unusually late for
claimant, but he stated there was four to six inches of snow
on the ground that morning. Later, as Terry was checking the
rigs, Schwab ran in and said "[claimant] is down"
or "[claimant] coded." Terry testified he went
outside and saw claimant on the ground with Rebou
"hovering" over him. He then assisted in the
resuscitation efforts. Terry did not recall seeing a
snowblower or a shovel near claimant's body. However, he
did observe that the parking spot where claimant's truck
was parked was clear of snow "from line to line, "
and it looked like someone had removed the snow.
18 Dr. Christopher Berry, a board certified interventional
cardiologist, testified by way of evidence deposition. Dr.
Berry first saw claimant on February 8, 2014. He treated
claimant postoperatively, managing his cardiac arrhythmia and
counseling him on lifestyle modifications, including weight
loss, smoking cessation, and diet. According to Dr. Berry,
claimant suffered a myocardial infarction of the
"demand-related ischemia" type, meaning that
"he had severe preexisting coronary artery disease which
was aggravated by the activity he was performing."
19 Dr. Berry testified that, based on his limited research
regarding coronary heart disease and its relation to a
firefighter's occupational exposure, there appeared to be
"an association of cardiac events in firemen that is
above and beyond that which would be expected of age-matched
controls." Thus, he opined that occupational exposure as
a firefighter "can be considered a risk factor" for
coronary artery disease. Dr. Berry further testified that
claimant suffered additional risk factors for coronary artery
disease, including obesity, a family history of coronary
artery disease, and a history of smoking. Dr. Berry also
stated there was some evidence that claimant was "mildly
diabetic" as well. Regarding claimant's smoking, Dr.
Berry was unable to recall how many packs of cigarettes per
day, or for how long, claimant had smoked.
20 In Dr. Berry's opinion, an activity, such as snow
removal, could trigger a cardiac arrhythmia in a person who
suffered from blocked or partially blocked arteries like
claimant. However, he stated that acute myocardial infarction
does not necessarily have to be provoked by activity and that
claimant could have suffered the same ischemic event at rest.
21 Dr. Dan Fintel, a board certified physician in internal
medicine, cardiovascular diseases, critical care medicine,
and nuclear cardiology, examined claimant in April 2014 at
the employer's request. Dr. Fintel performed a physical
examination of claimant and reviewed claimant's medical
records. According to Dr. Fintel, claimant reported having no
memory of the events leading up to his cardiac arrest, which
Dr. Fintel explained was "very common." Dr. Fintel
testified claimant suffered from preexisting undiagnosed
severe triple vessel coronary disease, and the ischemic event
experienced by claimant on February 5, 2014, could have been
caused by claimant's exposure to cold air alone,
regardless of whether he shoveled any snow. Dr. Fintel noted
"that any activity on a day in which the ambient
temperature was 15 degrees in a cardiac patient can be life
threatening or life ending." In addition, based on his
review of claimant's medical records, Dr. Fintel believed
claimant had suffered a cardiac event, or a silent heart
attack, prior to February 5, 2014, of which claimant may not
have been aware of.
22 Dr. Fintel was asked his opinion "as to might or
could the ingestion of heightened levels of nicotine
delivered by an e-cigarette cause a heart attack in a person
with [claimant's] cardiac profile." He responded
that "there is emerging evidence that the nicotine in
e-cigarettes, similar to the nicotine in conventional
cigarettes, can cause cardiac problems in patients." Dr.
Fintel further testified that, in the course of his
examination, claimant was unable to describe specific dates
or days in which he was exposed to smoke, gases, or materials
of combustion due to fighting fires. In Dr. Fintel's
opinion, the medical treatment ...