Twice Over Clean, Inc. v. Industrial Commission

809 N.E.2d 778, 348 Ill. App. 3d 638, 284 Ill. Dec. 212, 2004 Ill. App. LEXIS 455
CourtAppellate Court of Illinois
DecidedMay 6, 2004
Docket3-02-0353WC
StatusPublished
Cited by5 cases

This text of 809 N.E.2d 778 (Twice Over Clean, Inc. v. Industrial Commission) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Twice Over Clean, Inc. v. Industrial Commission, 809 N.E.2d 778, 348 Ill. App. 3d 638, 284 Ill. Dec. 212, 2004 Ill. App. LEXIS 455 (Ill. Ct. App. 2004).

Opinions

JUSTICE O’MALLEY

delivered the opinion of the court:

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 claimant’s 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 overtimed 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° to 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 cleanup 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 plaintiffs 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 of ill-being 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 of ill-being was caused by work-related aggravation of a preexisting 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 Sis-bro 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.

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Twice Over Clean, Inc. v. Industrial Commission
809 N.E.2d 778 (Appellate Court of Illinois, 2004)

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Bluebook (online)
809 N.E.2d 778, 348 Ill. App. 3d 638, 284 Ill. Dec. 212, 2004 Ill. App. LEXIS 455, Counsel Stack Legal Research, https://law.counselstack.com/opinion/twice-over-clean-inc-v-industrial-commission-illappct-2004.