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Simpson v. Illinois Workers' Compensation Commission

Court of Appeals of Illinois, Third District, Workers' Compensation Commission Division

April 18, 2017

CURTIS SIMPSON, Appellant,
v.
THE ILLINOIS WORKERS' COMPENSATION COMMISSION, et al. (City of Peoria, Appellee).

         Appeal from the Circuit Court of Peoria County. No. 15-MR-78 Honorable James Mack, Judge, presiding.

          JUSTICE MOORE, delivered the judgment of the court, with opinion. Justices Hoffman, Hudson, and Harris concurred in the judgment and opinion. Presiding Justice Holdridge dissented, with opinion.

          OPINION

          MOORE, JUSTICE

         ¶ 1 The claimant, Curtis Simpson, appeals the judgment of the circuit court of Peoria County, which confirmed the decision of the Workers' Compensation Commission (Commission) to deny him benefits under section 8 of the Illinois Workers' Compensation Act (the Act) (820 ILCS 305/8 (West 2014)), which he sought against his employer, the City of Peoria (City). In addition, the following motions have been taken with the case on appeal: (1) The City's motion to strike the amicus curiae brief filed by the Associated Firefighters of Illinois (AFFI) on behalf of the claimant; (2) The motion of the Illinois Municipal League (IML) for leave to intervene as amicus curiae and to file a brief on behalf of the City. For the following reasons, we grant the City's motion to strike as to those portions of the AFFI's brief that contain or reference matters that are de hors the record, grant IML's motion to intervene as amicus, deeming its brief to be filed instanter, and affirm the judgment of the circuit court which confirmed the decision of the Commission.

         ¶ 2 FACTS

         ¶ 3 The claimant was employed by the City as a firefighter. On May 21, 2008, the claimant filed an application for adjustment of claim under the Act (820 ILCS 305/1 et seq. (West 2008)), alleging work-related permanent injury to his heart by virtue of a heart attack. An arbitration hearing was held on March 19, 2014, in which the claimant amended his application to designate the injury as "heart attack and cardiovascular disease." The following evidence was adduced at the arbitration hearing.

         ¶ 4 The claimant testified that he began employment with the City as a beginning firefighter/hoseman in 1976. He served as a front line or line of duty firefighter for approximately 22 years, and testified in detail regarding his extensive history of exposure with regard to fire, smoke, and other toxins, his demolition of buildings, high-stress situations, and noise. He also testified that when he became a fireman, protective equipment was not available, but it progressively became more available as time went on.

         ¶ 5 The claimant testified that he became an administrative officer for the City's fire department in 1997 and worked in this capacity until the end of his career. In his first administrative positions, such as Assistant Chief, he was not as closely related to the fire and basic life support calls in terms of his day-to-day activities in that he was only required to respond to multi-alarm fires. However, he testified that there was a lot of stress involved when he became Batallion Chief and became responsible for the safety of 60 firefighters throughout an entire 24 hour period. In that position, he had to respond to all working fires.

         ¶ 6 The claimant testified that on January 12, 2008, at the age of 63, he was home sweeping and cleaning his garage. After he finished, he went into the house to take a shower and get ready for dinner. After his shower, he felt some moderate pain and lay down on the bed to rest. His girlfriend at the time, who is now his wife, came and asked him what was wrong. Although the pain was not debilitating, she insisted he go to the hospital. He was treated at the emergency room of Proctor Hospital by a cardiologist, Darrel Gumm, who diagnosed cardio enzyme elevation and then heart attack. Following that, he underwent an angiogram and the placement of two stents. He was placed on several medications: Atenolol, Lisinopril, Sodium Vasolate, and Plavix, which is a blood thinner. He soon learned that taking a blood thinner such as Plavix disqualified him from working in any capacity at the City fire department.

         ¶ 7 The claimant testified that he did not have a family history of cardiovascular disease, had never been a smoker, and his alcohol use was minimal. As a result of his heart attack, he applied for a duty disability pension and that was granted. Since that time, he has had cardiovascular treatment in the form of cardiac rehabilitation services and had a third stent placement by Dr. Gumm in 2009. Due to his cardiovascular condition, he no longer engages in stressful activities or a regimented exercise program for fear of having another heart attack.

         ¶ 8 On cross-examination, the claimant testified that in addition to the traumatic experiences he went through as a firefighter, there were many positive outcomes and good things that happened while he was working, such as saving lives. During the course of his career as a firefighter, he never sought mental health treatment or psychological counseling. The stress of the job never got to the point that he needed medical intervention or felt it was affecting his ability to do his job or perform the everyday activities of his life.

         ¶ 9 Once he moved into an administrative capacity in 1997 for the City, the requirement that he physically enter a burning building was significantly diminished. In addition, his hours changed from 24 hours on, 48 hours off, to a standard 8:00 a.m. to 5:00 p.m., 40 hours-per-week schedule. However, every other month he would be on call as the Division Chief to respond to all working fires.

         ¶ 10 At the time of his heart attack, the claimant was on medication for hypertension (high blood pressure) and hyperlipidemia (high cholesterol). He had been tested for sleep apnea but the test was negative, although certain medical records report a history of sleep apnea. His mother also had a history of hypertension, although the medical records indicate that the claimant, at some point in time, reported a history of heart disease in his mother. The claimant characterized himself as overweight at the time of the heart attack, having been in more of a sedentary job. While cleaning his garage on the day of his heart attack, he moved half a bag of bird seed out of the way and rolled a cart with more bird seed as well. He now is retired, lives in Arizona, has regular stress tests under the care of a cardiologist, but is not under any physical restrictions from any doctor.

         ¶ 11 The evidence deposition of Dr. Virginia Weaver was admitted into evidence on behalf of the claimant. Dr. Weaver testified regarding a vast array of credentials, the most relevant being that she is a doctor of public health at the Bloomberg School of Public Health at Johns Hopkins University. She is board certified in internal medicine and occupational medicine. She is a member of the American College of Occupational and Environmental Medicine and serves on the medical advisory board of the International Association of Firefighters (IAFF).

         ¶ 12 Dr. Weaver testified that she prepared a report concerning the claimant at the claimant's attorney's request. In preparation for her report, dated September 9, 2013, Dr. Weaver reviewed the claimant's medical records from his emergency room admission and subsequent cardiac treatment, the report and deposition of the City's expert, Dr. Fintel, and the report of Dr. McDowell, a resident of the IAFF, who assisted Dr. Weaver in the evaluation of the claimant's condition and its cause. Dr. Weaver testified that she also conducted a phone interview with the claimant.

         ¶ 13 Dr. Weaver testified that she spoke with the claimant in order to get an understanding of his working career and specific issues within his job that could have resulted in exposure to any of the number of firefighting hazards that can result in cardiovascular disease. She testified that the claimant's work history is consistent with most firefighters in the United States in that during the first two to three years of his employment as a firefighter he generally did not use any type of breathing apparatus during fire suppression and overhaul activities. Following that, he began using self-controlled breathing apparatus (SCBA) equipment during active fire suppression but not during the overhaul phase. In the last couple of decades, the data shows that overhaul activities are as high-risk as fire suppression activities and it is recommended now that firefighters keep their SCBA equipment on the entire time they are doing suppression and overhaul.

         ¶ 14 Dr. Weaver testified that as a result of the multiple times the claimant undertook fire suppression activities without SCBA equipment, the claimant had extensive exposure to chemical asphyxiates, such as carbon monoxide and cyanide. In addition, Dr. Weaver testified that the claimant's stress and noise exposure during his 22 years of active firefighting was extensive and that this type of occupational stress is a risk factor for heart disease. Dr. Weaver testified that the claimant's history of hypertension "can certainly be occupational as a firefighter and non-occupational." She recognized that the claimant's obesity, age, sex, and history of hyperlipidemia were also risk factors but that chronic occupational exposure from firefighting in terms of chemicals, stress, noise, and disrupted sleep were risk factors as well.

         ¶ 15 Dr. Weaver explained recent developments regarding occupational hazards related to firefighting and cardiovascular disease. It has been very clear for a long period of time that acute exposure to certain chemical asphyxiates during fire suppression activities followed by a cardiac event within 24 to 48 hours signifies a work-related injury. However, there is now literature that shows that chronic carbon monoxide exposure increases the risk of hypertension and elevated blood levels of inflammatory markers which are risk factors for subsequent cardiac disease. Other potential mechanisms for cardiovascular disease from chronic smoke exposure include increased formation of free radicals, subsequent endothelial dysfunction, increased coagulability of the blood, and increased progression of atherosclerosis. In addition, shift work involving sleep deprivation has now been correlated with hypertension, diabetes, obesity, and heart disease. Chronic noise and stress are also associated with an increased risk for chronic hypertension. Dr. Weaver concluded that the claimant had 31 years of exposure to these chronic risk factors and that it is therefore her opinion, within a reasonable degree of medical certainty, that his occupation may have been a cause of his cardiovascular disease and myocardial infarction.

         ¶ 16 On cross-examination, Dr. Weaver testified that she is not board certified in cardiovascular disease, critical care medicine, or nuclear cardiology. The IAFF has had a longstanding contractual relationship with the Bloomberg School of Public Health, where she is Director of the Occupational and Environmental Medicine Residency. Funds are transferred to the school to provide salary support for faculty to oversee residents rotating at IAFF to assist with questions of causation with regard to injuries in firefighters. The main focus of her practice in this position is to provide causation expertise for firefighters with about five to 10 percent of her practice devoted to treating patients. She does not treat patients with cardiovascular disease.

         ¶ 17 With regard to specific exposures, Dr. Weaver testified that benzene, carbon monoxide, hydrogen cyanide, asbestos, P.A.H.'s, formaldehyde, carbon disulfide, diesel exhaust, and soot are routinely reported at fires where monitoring has been done. However, specific information about which of these chemicals a firefighter has been exposed to over the course of his or her career and in what amounts is almost never available, making exposure assessment extremely difficult for research purposes. This is true in the case of the claimant as well.

         ¶ 18 The claimant also introduced records from his line of duty disability pension examination into evidence. According to an independent medical disability report prepared by Dr. Robert Ayers at the Occupational Health Foundation on April 30, 2008, the claimant had been evaluated 30 years prior to the exam with coronary angiography for chest pain. He was diagnosed as having coronary spasm and his angiogram was normal at that time. It was his impression that it was marital stress related. He was not given any medications and ...


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