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Johnston v. The Illinois Workers' Compensation Commission

Court of Appeals of Illinois, Second District, Workers’ Compensation Commission Division

April 13, 2017

KEVIN JOHNSTON, Appellant,
v.
THE ILLINOIS WORKERS' COMPENSATION COMMISSION et al. (The East Dundee Fire Protection District, Appellee).

         Appeal 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, with opinion.

          OPINION

          HARRIS, JUSTICE

         ¶ 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 tall.

         ¶ 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 snow.

         ¶ 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 hospital.

         ¶ 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 food.

         ¶ 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 claimant's body.

         ¶ 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 ...


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