City of Waukegan v. Industrial Comm'n

August 12, 1998

No. 2--97--0750WC
_________________________________________________________________

IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
INDUSTRIAL COMMISSION DIVISION

THE CITY OF WAUKEGAN, ) Appeal from the Circuit
Appellant, ) Court of Lake County
)
v. ) No. 96MR276
)
THE INDUSTRIAL COMMISSION et al. ) Honorable
(Edwin Herner, Appellee). ) Jack Hoogasian,
) Judge, Presiding.
_________________________________________________________________
JUSTICE RARICK delivered the opinion of the court:
Claimant, Edwin Herner, sought benefits pursuant to the
Workers' Compensation Act (Act) (Ill. Rev. Stat. 1991, ch. 48, par.
138.1 et seq.) for injuries arising out of and in the course of his
employment with the City of Waukegan (employer). The arbitrator
awarded claimant permanent total disability benefits. On appeal,
the Industrial Commission (Commission) affirmed the arbitrator's
decision, and the circuit court of Lake County confirmed the
Commission's decision. Employer appeals, contending the finding of
accidental injury arising out of and in the course of employment is
contrary to the manifest weight of the evidence and contrary to the
law. Employer also takes issue with the finding of permanent,
total disability. We affirm.
Claimant began working as a police officer for employer in
January 1971. Over the years claimant was promoted several times
and served as shift commander for the department from 1985 to 1990.
In 1990, claimant was again promoted to the position of commanding
officer of community services.
On November 5, 1991, claimant awoke at 6 a.m. with a burning
sensation in his stomach. He had not slept well the night before
and was extremely nervous and upset about a meeting he was to have
that day with his supervisors. While driving to work, claimant
noticed he began to sweat profusely and to feel pain going up his
left arm and into his left elbow. He also began to feel pressure
in his chest and heart palpitations. Claimant turned around and
went back home. Because he was feeling worse once he arrived home,
he called for emergency assistance. Claimant was transported to
the St. Therese Medical Center Emergency Room by the rescue squad
where he was diagnosed as having suffered a cardiac infarction, or
heart attack. On November 6, 1991, claimant was transferred to St.
Luke's Medical Center where cardiac catheterization was performed.
Subsequent to his discharge, claimant has remained under doctor's
care. He continues to have a very low heart ejection fraction of
20 to 25%, which requires permanent Coumadin treatment. The Social
Security standard rates those individuals with less than 30%
ejection fraction as completely disabled. Claimant has not worked
since the heart attack.
Other evidence revealed that claimant has never smoked and
does not consume alcohol. Both of his parents lived long lives,
his father dying at the age of 86 and his mother at 76. His mother
did die of a heart attack, however, as did his sister at the age of
59.
Claimant first began treatment for high blood pressure in 1979
or 1980. In 1984 he began seeing Dr. James Monahan, who is board
certified in internal medicine and in the subspecialty of
cardiovascular disease. During his first visit with Dr. Monahan,
claimant complained of chest pain and aching arms and commented
that he was under a lot of stress both at work and home. Dr.
Monahan testified that claimant is the type of individual who
reacts physiologically to stress more than most people do. Work-
related stress was a constant theme throughout the doctor's records
and conversations with claimant. For instance, as shift commander,
claimant was responsible for all police officers on that shift
(approximately 20 to 30 officers) and for any type of investigation
and whatever else happened in the city during that shift. As such,
his job involved many stressful and adversarial situations with the
public and aldermen, and he was subjected to much "second-guessing"
by his supervisors. It was claimant's responsibility to appease
the public and to defuse any tense situations that occurred on his
shift of command. Claimant testified that as time progressed he
found it more difficult to put the confrontations behind him. He
began to sleep poorly and noticed his heart beating rapidly and his
stomach getting upset. He would become sweaty and would feel
extremely anxious and frustrated. As commanding officer of the
community service division, claimant was often called to mediate
confrontational situations with the public and the city. He was
also responsible for the training of all officers. Claimant
testified that in 1991 the stress-related feelings were becoming an
everyday occurrence. By the fall claimant noticed he was in
constant dread of confrontations and was losing a lot of sleep.
Claimant further testified that weeks before the heart attack the
firing range broke down and was totally unusable. Claimant was
responsible for the maintenance and upkeep of the firing range as
part of the officers' training and had to work with his supervisors
to get expensive repairs made. The supervisors were not willing to
make the recommended repairs and agreed to do only what was
necessary to get by. The day before claimant's heart attack, the
range broke down again. Claimant was not able to have it repaired
by the end of the workday on November 4, and claimant knew the
morning of his heart attack he was going to have to "bump heads"
with someone over the proper repair of the firing range. Dr.
Monahan concluded that claimant's work-related stress caused his
heart attack and that he was permanently disabled. Several
examining doctors reached the same conclusion.
Dr. Nathaniel Greenberg, who examined claimant on April 22,
1993, diagnosed claimant's condition as being "acute myocardial
infarction with residual myocardial insufficiency." Dr. Greenberg
specifically noted in his report that claimant was subjected to
prolonged and substantial occupation stress which accelerated the
atherosclerotic process. Dr. Greenberg noted this was all the more
significant in claimant because of "the relative absence of other
major risk factors." Dr. Greenberg concluded claimant could only
return to the very lightest occupation and that even a sedentary
job would have to be free of significant stress for claimant to
cope with it. Employer's expert, Dr. Fintel, also concluded
claimant's condition was permanent but opined it resulted from
hereditary causes and long-standing health problems.
Whether an injury arises out of and in the course of
employment is a question of fact. Wheelan Funeral Home v.
Industrial Comm'n, 208 Ill. App. 3d 832, 836, 567 N.E.2d 662, 665
(3d Dist. 1991). It is the function of the Commission to determine
the facts, judge the credibility of the witnesses, and draw
reasonable inferences from competent evidence. Ingersoll Milling
Machine Co. v. Industrial Comm'n, 253 Ill. App. 3d 462, 467, 624 N.E.2d 829, 833 (2d Dist. 1993); Wheelan, 208 Ill. App. 3d at 836,
567 N.E.2d at 665; Marathon Oil Co. v. Industrial Comm'n, 203 Ill.
App. 3d 809, 816, 561 N.E.2d 141, 146 (5th Dist. 1990). It is also
the Commission's province to resolve conflicts in medical evidence.
Ingersoll, 253 Ill. App. 3d at 467, 624 N.E.2d at 833. We, as a
reviewing court, will not disturb the findings of the Commission
unless such findings are contrary to the manifest weight of the
evidence. Ingersoll, 253 Ill. App. 3d at 467, 624 N.E.2d at 833;
Wheelan, 208 Ill. App. 3d at 836, 567 N.E.2d at 665. We cannot say
in this instance the findings of the Commission are against the
manifest weight of the evidence.
It is well established that an employer takes its employees as
it finds them (County of Cook v. Industrial Comm'n, 69 Ill. 2d 10,
17, 370 N.E.2d 520, 523 (1977)) and that, even if an employee
suffers from heart disease, if the heart attack which brings on
disability or death is work related the employee may recover
workers' compensation (Wheelan, 208 Ill. App. 3d at 836, 567 N.E.2d
at 665; Associates Corp. of North America v. Industrial Comm'n, 167
Ill. App. 3d 988, 996, 522 N.E.2d 102, 108 (1st Dist. 1988)). If
there is work-related stress, either physical or emotional, that
aggravates the disease so as to cause the heart attack, then there
is an accidental injury or death arising out of and in the course
of the employment. Wheelan, 208 Ill. App. 3d at 836, 567 N.E.2d at
665; Associates, 167 Ill. App. 3d at 996, 522 N.E.2d at 108. While
the claimant must prove that some act of employment was a causative
factor, the act need not be the sole, or even the principal,
causative factor. Ingersoll, 253 Ill. App. 3d at 469, 624 N.E.2d
at 834; Wheelan, 208 Ill. App. 3d at 836, 567 N.E.2d at 665.
The Commission concluded the heart attack claimant suffered on
November 5, 1991, was an accidental injury that arose out of and in
the course of claimant's employment. The majority of the medical
testimony supports this finding of causal connection. Dr. Monahan,
claimant's treating physician, explained that claimant was the type
of person who reacted physiologically to stress. He noted that
work-related stress was a recurrent theme throughout his records of
treatment of claimant over many years. The combination of
claimant's work as a police officer and claimant's nature in
general led to the development of premature coronary disease and
caused the heart attack that followed. Dr. Greenberg also
concluded the prolonged and substantial occupational stress that
claimant was subjected to accelerated the atherosclerotic process
to the point of causing the November heart attack. Claimant
testified his condition was getting progressively worse. He had
more and more difficulty putting confrontations behind him. He was
sleeping poorly, his stomach was getting upset regularly, and he
was becoming extremely anxious and frustrated. The day before his
heart attack, the firing range, an item for which claimant was
responsible, broke down again after costly repairs a few weeks
earlier. The range still was not functioning at the end of the
day, and claimant knew he was going to have to "bump heads" over
the matter with his supervisors the next morning. Claimant slept
poorly that night and began dreading the confrontation while
driving into work the next morning. The stress was too great,
resulting in claimant's suffering a heart attack. Although there
was some history of heart disease in his family, claimant had few
other major risk factors. The major factor for claimant was
occupational stress. Given such circumstances, we cannot say the
Commission erred in finding a direct connection between claimant's
work activities and his heart attack.
The Commission also concluded claimant was totally and
permanently disabled as a result of his work-related heart attack.
Again we cannot say such a conclusion is against the manifest
weight of the evidence. An employee is totally and permanently
disabled when he cannot perform services except those that are so
limited in quantity, dependability, or quality that there is no
reasonably stable market for them. Marathon Oil, 203 Ill. App. 3d
at 815, 561 N.E.2d at 146. Claimant clearly falls within this
category. Claimant sustained severe and permanent damage to his
heart as a result of the November 5 heart attack. After the
attack, claimant's heart had only a 20-25% ejection fraction. The
Social Security standard rates those individuals with less than 30%
ejection fraction as completely disabled. Dr. Monahan testified
such a low ejection fraction was dangerous because claimant had no
cardiac reserve. If the body required an increased cardiac output,
claimant would not be able to bring it up and would likely die.
Dr. Monahan therefore concluded claimant could not return to any
type of work. Dr. Greenberg also reached the same conclusion and
further noted that even a sedentary job would have to be free of
stress for claimant to cope with it. Understandably, claimant has
few marketable job skills given his long history with the police
department, his reliance on medication, and the nature of the
severe and permanent damage to his heart. Accordingly, we cannot
say the Commission's determination of total and permanent
disability is in error in this instance.
We affirm the decision of the Industrial Commission as
confirmed by the circuit court of Lake County.
AFFIRMED.
COLWELL and HOLDRIDGE, JJ., concur.
JUSTICE RAKOWSKI, dissenting:
Claimant bears the burden of establishing that the heart
attack arose out of and in the course of his employment. Vesco
Ventilation & Equipment Sales v. Industrial Comm'n, 168 Ill. App.
3d 959, 964 (1988). It is axiomatic that within this burden of
proof there are two elements that must be shown. Whether claimant
sustained his heart attack during the course of his employment
depends upon the time, place, and circumstances under which the
accident occurred. Esco Corp. v. Industrial Comm'n, 169 Ill. App.
3d 376, 382 (1988).
The second element, whether claimant's heart attack arose out
of his employment, requires proof of a causal connection between
claimant's employment and the attack. Esco, 169 Ill. App. 3d at
383. "The risk of injury must be peculiar to the work such that
the employee is exposed to it to a greater degree than the general
public by reason of the employment." Esco, 169 Ill. App. 3d at
383.
For work-related stress to be a causative factor leading to a
heart attack, such stress must have been "unusual." One factor to
consider in determining "unusualness" is whether the stress
subjected the employee to a greater emotional strain than that to
which all employees are subjected. Esco, 169 Ill. App. 3d at 383.
Another factor to consider is whether the stress was "unusual" when
compared to the strain of the claimant's normal working conditions.
Esco, 169 Ill. App. 3d at 383; 2 A. Larson, Larson's Workers'
Compensation Law, 38.65(d)(4)(i), at 7-297 (1997).
In the instant case, there is no evidence to suggest that
claimant's job put him at risk of heart attack to a greater degree
than the general public. Claimant was a shift commander for the
Waukegan police department, which entailed supervising 20 to 30
officers. He also states that it was his job to appease the public
and to defuse situations that occurred on his shift of command.
Although claimant states that these situations were "stressful" and
"adversarial," he did not elaborate on the frequency or nature of
these situations. Claimant also testified that he was subject to
"second-guessing" by his supervisors.
I respectfully submit that the above in no way establishes
that claimant was subject to a greater risk of stress and/or heart
attack than the general public. His job was routine and the
situations he described were situations that anyone engaged in
police work would be subjected to on a daily basis. On a scale of
one to ten, claimant's job was at best a two when compared to the
stress that most Americans are exposed to at the work place on a
daily basis.
Nor is there any evidence that the stress claimant was exposed
to was unusual. The only evidence claimant offers is that a firing
range had broken down and that his supervisors were not willing to
make the recommended repairs. Is this the type of "unusualness"
that can be said to subject an employee to greater emotional strain
than that to which all employees are subjected? Can it be said to
be "unusual" when compared to the stress of claimant's own normal
conditions? I respectfully submit that the answer is no.
Based on the foregoing, it is clear that claimant's employment
did not subject him to a risk of heart attack greater than that to
which the general public is exposed. The decision of the
Commission is clearly against the manifest weight of the evidence,
and an opposite conclusion is clearly apparent.
McCULLOUGH, P.J., joins in this dissent.