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Appellate Court Date: 2017.08.14
09:44:05 -05'00'
Johnston v. Illinois Workers’ Compensation Comm’n, 2017 IL App (2d) 160010WC
Appellate Court KEVIN JOHNSTON, Appellant, v. THE ILLINOIS WORKERS’
Caption COMPENSATION COMMISSION (The East Dundee Fire Protection
District, Appellee).
District & No. Second District
Docket No. 2-16-0010WC
Filed April 13, 2017
Rehearing denied June 12, 2017
Decision Under Appeal from the Circuit Court of Kane County, No. 15-MR-736; the
Review Hon. David R. Akemann, Judge, presiding.
Judgment Affirmed in part and vacated in part.
Counsel on Timothy D. O’Neil, of Foote Mielke Chavez & O’Neil, LLC, of
Appeal Geneva, for appellant.
William B. Isaly, of Ancel Glink Diamond Bush DiCianni &
Krafthefer, PC, of Naperville, for appellee.
Panel 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
¶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 that
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
full-time 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
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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 facedown 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
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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
facedown 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.
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¶ 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
claimant received following the February 5, 2014, ischemic event was causally connected to
his severe underlying preexisting triple vessel coronary artery disease.
¶ 23 On cross-examination, Dr. Fintel testified that he did not know the dosage of nicotine that
claimant was using in his e-cigarette and that it was “speculation as to the impact, if any, of
the e-cigarette on the event of February 5, 2014.” Dr. Fintel further testified he was unaware
of any significance between claimant’s occupation, which required him to respond to an
average of “300 calls per year,” and his coronary artery disease because Dr. Fintel was
“unaware of what extent of smoke exposure [claimant] had in [his] fire suppression
activities.” However, Dr. Fintel acknowledged the existence of a body of literature that has
found an increased risk of coronary artery disease in firefighters. Dr. Fintel further testified
that claimant had other risk factors for developing coronary artery disease, including a
20-year smoking history, which he felt was “probably the major cause chronically of
developing advanced atherosclerosis,” and a family history of heart disease. In Dr. Fintel’s
opinion, “[w]orking as a fireman is not considered to be a regular risk factor for coronary
artery disease. It depends on occupational exposure and data that I don’t have available to
me.” He continued, “[i]t could be a risk factor based on what his occupational exposure was,
but it is not definitely a risk factor.”
¶ 24 Dr. Fintel also authored a report in which he opined that “[claimant’s] vocational duties
did not cause the underlying disease process de novo.” During his deposition, Dr. Fintel was
asked what he meant by the phrase “de novo.” He responded, “I was trying to express my
opinion that his underlying disease was a direct consequence of his multiple risk factors, the
smoking, the family history, his male sex, et cetera, and that work as a fireman was not the
cause of his underlying coronary artery disease, that had he been doing another job he would
still have experienced progressive and life-threatening coronary disease.”
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¶ 25 On September 17, 2014, the arbitrator issued his decision in the matter. He found that the
employer had successfully rebutted the presumption set forth in section 6(f) of the Act “by
showing that [claimant’s] preexisting coronary artery disease alone was the cause of the
cardiac event on February 5, 2014.” The arbitrator “discount[ed] Dr. Berry’s opinion that
occupational exposure could have played a role in this case, given that there was absolutely
no evidence submitted that would quantify or even generally describe the type or frequency
of [claimant’s] exposure in this regard.” He noted, “the evidence overwhelming[ly] shows
that [claimant] had multiple risk factors―including the fact that he was obese, had a family
history of coronary artery disease, was a long-term and heavy smoker, and was possibly
diabetic or prediabetic as well as hypertensive―and that the near fatal cardiac event he
subsequently suffered could have happened at anytime and anywhere.” The arbitrator further
concluded that claimant “was a heart attack waiting to happen, and his employment activities
neither aggravated nor accelerated his already severe and highly advanced coronary artery
disease.” The arbitrator found claimant failed to prove that he suffered accidental injuries
arising out of his employment or that his current condition of ill-being was causally related to
the alleged accident.
¶ 26 On June 1, 2015, the Commission affirmed and adopted the decision of the arbitrator.
(We note that it also erroneously remanded the case “for a determination of a further amount
of temporary total compensation or of compensation for permanent disability, if any,
pursuant to Thomas v. Industrial Comm’n, 78 Ill. 2d 327, 399 N.E.2d 1322 (1980).”)
¶ 27 On December 22, 2015, the circuit court of Kane County confirmed the Commission’s
decision.
¶ 28 This appeal followed.
¶ 29 II. ANALYSIS
¶ 30 On appeal, claimant asserts 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 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.
¶ 31 A. Section 6(f) of the Act
¶ 32 As noted, claimant first asserts the Commission erred in finding the employer had
successfully rebutted the presumption found in section 6(f) of the Act. Specifically, claimant
contends that the evidence showing he had other risk factors for developing coronary artery
disease was insufficient to rebut the presumption that his coronary artery disease arose out of
his employment as a firefighter. We will review the Commission’s determination that the
employer presented sufficient evidence to rebut the statutory presumption under the manifest
weight of the evidence standard.
¶ 33 Section 6(f) of the Act provides, in pertinent part, as follows:
“Any condition or impairment of health of an employee employed as a firefighter,
emergency medical technician (EMT), or paramedic which results directly or
indirectly from any bloodborne pathogen, lung or respiratory disease or condition,
heart or vascular disease or condition, hypertension, tuberculosis, or cancer resulting
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in any disability (temporary, permanent, total, or partial) to the employee shall be
rebuttably presumed to arise out of and in the course of the employee’s firefighting,
EMT, or paramedic employment and, further, shall be rebuttably presumed to be
causally connected to the hazards or exposures of the employment. *** However, this
presumption shall not apply to any employee who has been employed as a firefighter,
EMT, or paramedic for less than 5 years at the time he or she files an Application for
Adjustment of Claim concerning this condition or impairment with the Illinois
Workers’ Compensation Commission.” 820 ILCS 305/6(f) (West 2014).
¶ 34 1. Presumptions and Rebuttable Presumptions
¶ 35 Because section 6(f) of the Act provides for a rebuttable presumption, we first discuss the
legal analysis relevant to the application of such a presumption.
¶ 36 In Diederich v. Walters, 65 Ill. 2d 95, 100-01, 357 N.E.2d 1128, 1130-31 (1976), our
supreme court considered the effect of rebuttable presumptions and explained as follows:
“With regard to the procedural effect of presumptions, most jurisdictions in this
country follow the rule that a rebuttable presumption may create a prima facie case as
to the particular issue in question and thus has the practical effect of requiring the
party against whom it operates to come forward with evidence to meet the
presumption. However, once evidence opposing the presumption comes into the case,
the presumption ceases to operate, and the issue is determined on the basis of the
evidence adduced at trial as if no presumption had ever existed. (See 1 Jones,
Evidence sec. 3:8 (6th ed. 1972).) The burden of proof thus does not shift but remains
with the party who initially had the benefit of the presumption. Consistent with this
view, Dean Wigmore states in his treatise on evidence that ‘the peculiar effect of a
presumption “of law” (that is, the real presumption) is merely to invoke a rule of law
compelling the jury to reach the conclusion in the absence of evidence to the contrary
from the opponent. If the opponent does offer evidence to the contrary (sufficient to
satisfy the judge’s requirement of some evidence), the presumption disappears as a
rule of law, and the case is in the jury’s hands free from any rule ***.’ (9 Wigmore,
Evidence sec. 2491, at 289 (3d ed. 1940).)” (Emphasis omitted.)
¶ 37 The supreme court provided further guidance with regard to rebuttable presumptions in
Franciscan Sisters Health Care Corp. v. Dean, 95 Ill. 2d 452, 448 N.E.2d 872 (1983). In that
case, the court expanded upon its discussion in Diederich, noting “[t]he prevailing theory
regarding presumptions that Illinois follows and Diederich speaks about is Thayer’s
bursting-bubble hypothesis: once evidence is introduced contrary to the presumption, the
bubble bursts and the presumption vanishes.” Id. at 462, 448 N.E.2d at 877. In other words,
once evidence has been presented to rebut the presumption, the metaphorical bubble bursts
and the trier of fact must then consider the evidence presented in the case as if the
presumption had never existed. Id.
¶ 38 2. The Amount of Evidence Necessary
to Rebut the Section 6(f) Presumption
¶ 39 “The amount of evidence that is required from an adversary to meet the presumption is
not determined by any fixed rule.” Id. at 463, 448 N.E.2d at 877. Generally, “[t]he party
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contesting the presumption must come forward with sufficient evidence to support a finding
of the nonexistence of the presumed fact.” R.J. Management Co. v. SRLB Development
Corp., 346 Ill. App. 3d 957, 965, 806 N.E.2d 1074, 1081 (2004). However, in some cases
where compelling policy considerations are at issue, the “party attacking a presumption has a
greater burden of production than merely producing evidence sufficient to support a
reasonable trier of fact’s finding as to the nonexistence of the presumed fact.” Id. (citing
Michael H. Graham, Cleary and Graham’s Handbook of Illinois Evidence § 302.5, at 88 (8th
ed. 2004)). In those cases, “the challenging party must overcome a ‘strong’ presumption by
clear and convincing evidence.” Id. “The clear and convincing standard requires proof
greater than a preponderance but not quite approaching the criminal standard of proof beyond
a reasonable doubt.” Enbridge Energy (Illinois), L.L.C. v. Kuerth, 2016 IL App (4th) 150519,
¶ 134. “Although this strong presumption commonly arises in fiduciary relationships, it has
also been applied in other contexts.” Id.
¶ 40 In some statutes, which provide for a rebuttable presumption, our legislature has provided
specific language regarding the amount of evidence a party contesting the presumption must
present. For example, section 11-5.3(c) of the Probate Act of 1975 (755 ILCS 5/11-5.3(c)
(West 2014)) provides, “[t]here shall be a rebuttable presumption that a parent of a minor is
willing and able to carry out day-to-day child care decisions concerning the minor, but the
presumption may be rebutted by a preponderance of the evidence.” In contrast, section
1(D)(i) of the Adoption Act (750 ILCS 50/1(D)(i) (West 2014)) provides that the conviction
of any one of a number of listed criminal offenses “shall create a presumption that a parent is
depraved which can be overcome only by clear and convincing evidence.”
¶ 41 Unlike the above statutes, section 6(f) is silent as to the amount of evidence required to
rebut the presumption therein. As such, we must determine, as a matter of statutory
construction, whether the rebuttable presumption provided for in section 6(f) falls into the
strong or ordinary category, requiring either clear and convincing evidence or merely “some
evidence,” respectively, to the contrary. Because the task before us is one of statutory
interpretation, we employ a de novo standard of review. Freeman United Coal Mining Co. v.
Industrial Comm’n, 317 Ill. App. 3d 497, 503, 739 N.E.2d 1009, 1014 (2000).
¶ 42 “In interpreting the Act, our primary goal is to ascertain and give effect to the intent of
the legislature.” Cassens Transport Co. v. Illinois Industrial Comm’n, 218 Ill. 2d 519, 524,
844 N.E.2d 414, 418 (2006). “The language used in the statute is normally the best indicator
of what the legislature intended,” and “[e]ach undefined word in the statute must be given its
ordinary and popularly understood meaning.” Gruszeczka v. Illinois Workers’ Compensation
Comm’n, 2013 IL 114212, ¶ 12, 992 N.E.2d 1234. “[W]here the statutory language is clear, it
will be given effect without resort to other aids for construction.” Id. However, where a
statute is ambiguous, we may consider other sources, including legislative history, to
determine the legislature’s intent. Id. ¶ 17.
¶ 43 Here, after a careful review of section 6(f), we are unable to discern from the language of
the Act the amount of evidence necessary to overcome the rebuttable presumption contained
therein. Because it could be either clear and convincing evidence or just some evidence to the
contrary that is necessary to rebut the presumption, we are unable to apply the statute without
looking beyond the Act’s language. Krohe v. City of Bloomington, 204 Ill. 2d 392, 397-98,
789 N.E.2d 1211, 1214 (2003). Accordingly, we consider the legislative history behind
section 6(f) to determine the legislature’s intent. Id.; see also People v. Rose, 268 Ill. App. 3d
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174, 178, 643 N.E.2d 865, 868 (1994) (“where the language is ambiguous, it is appropriate to
examine the legislative history”).
¶ 44 Here, the floor debates on House Bill 928, which enacted section 6(f) of the Act in Public
Act 95-316 (eff. Jan 1, 2008), are helpful. During the floor debate, the bill’s sponsor,
Representative Hoffman, was asked to explain the rationale behind the proposed legislation.
He responded as follows:
“Well, I think the current law, what would happen is a firefighter who has these
diseases has to come in and the Workers’ Compensation Act only covers you for
work-related injuries. So you have to prove that the injury was a result of activities on
the job. Many times that’s very difficult with these types of diseases to prove. Yet we
know over, and over, and over again that it’s more likely than not that they were a
result of the activities of the firefighter while on the job, because there’s a higher
incidence of these types of illnesses as a result of that type of employment. So what
this does is if you have it you could bring your action, it doesn’t mean you’re going to
get compensated, it doesn’t mean you’re going to win, it doesn’t mean that you have
proven beyond any doubt or conclusively that this happened on the job, it only means
that the employer can then come in and bring contrary evidence as to whether or not
it happened on the job.” (Emphasis added.) 95th Ill. Gen. Assem., House
Proceedings, Apr. 27, 2007, at 68-69 (statements of Representative Hoffman).
Representative Hoffman further explained how the rebuttable presumption would apply to a
hypothetical firefighter who developed lung cancer toward the end of his career. He stated
that an employer could introduce evidence of the firefighter’s smoking history to rebut the
presumption that the cancer arose out of his employment as a firefighter. Id. at 81. He
continued, “[s]o don’t think it’s conclusive that simply because you have lung cancer, you’re
going to get compensation of the Worker’s Compensation Act. What we’re saying is, we’ll
get you to the hearing. Then the other side can bring in evidence that you smoked for thirty
(30) years and therefore, it wasn’t a result of the actions taken at work.” Id. at 82.
¶ 45 Based on the above legislative history, we find that section 6(f) does not involve a strong
rebuttable presumption, requiring clear and convincing evidence. Rather, we conclude that
the legislature intended an ordinary rebuttable presumption to apply, simply requiring the
employer to offer some evidence sufficient to support a finding that something other than
claimant’s occupation as a firefighter caused his condition.
¶ 46 3. Whether the Employer Introduced Evidence
Sufficient to Rebut the Presumption
¶ 47 Here, it is undisputed that at the time of arbitration, claimant suffered from coronary
artery disease and was entitled to the benefit of the presumption set forth in section 6(f) by
virtue of his 15-plus years of work as a firefighter. The arbitrator found that the employer had
rebutted the presumption “by showing that [claimant’s] preexisting coronary artery disease
alone was the cause of the cardiac event on February 5, 2014.” However, this finding by the
arbitrator fails to properly frame the presumed fact. The presumed fact here is that claimant’s
coronary artery disease—not just the cardiac event—arose out of his employment as a
firefighter. Thus, the issue before us is whether the evidence introduced by the employer was
sufficient to rebut the presumed fact as we have stated it.
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¶ 48 Initially, we note that, in applying the section 6(f) presumption here, it is irrelevant
whether claimant was performing a work function, i.e., shoveling snow, at the time of his
heart attack because, as we have stated, it is claimant’s underlying coronary artery
disease—which manifested itself at the time of claimant’s heart attack—to which the
presumption attaches. Further, in order for the presumption to attach, it is immaterial whether
a claimant has submitted specific evidence to show his actual level of occupational
exposure—he simply must establish he has worked as a firefighter for at least five years.
Consequently, the determinative issue here is whether the employer successfully rebutted the
presumption that claimant’s coronary artery disease arose out of and in the course of his
employment.
¶ 49 In that regard, the record shows Dr. Fintel authored a report after examining claimant and
his medical records. In considering whether claimant’s occupation as a firefighter placed him
at risk for premature coronary artery disease, Dr Fintel wrote, “[claimant’s] vocational duties
did not cause the underlying disease process de novo.” When asked at his deposition what he
meant by the phrase “de novo,” Dr. Fintel responded, “I was trying to express my opinion
that his underlying disease was a direct consequence of his multiple risk factors, the smoking,
the family history, his male sex, et cetera, and that work as a fireman was not the cause of his
underlying coronary artery disease, that had he been doing another job he would still have
experienced progressive and life-threatening coronary disease.” (Emphasis added.) Dr.
Fintel noted that claimant had multiple risk factors for developing coronary artery disease. In
particular, claimant (1) had a 20-year history of smoking 1 to 1½ packs of cigarettes per day,
(2) had a family history of heart disease, (3) was possibly “mildly diabetic,” and (4) was
obese. Dr. Fintel testified that claimant’s history of smoking “at least a pack per day” for 20
years leading up to his heart attack was “probably the major cause chronically of developing
advanced atherosclerosis.”
¶ 50 Dr. Fintel’s testimony stands in opposition to the presumed fact that claimant’s coronary
artery disease arose out of his employment. Given this evidence and that the employer
needed only to rebut the section 6(f) presumption by presenting some contrary evidence, we
find the presumption was rebutted. Accordingly, the Commission’s finding on this issue was
not against the manifest weight of the evidence.
¶ 51 We address here claimant’s assertion that in order to rebut the presumption, the employer
had to do more than simply point to other potential causes of his coronary artery disease
without first excluding occupational exposure as a contributing cause. He cites to case law in
support of the proposition that to prove causation, a claimant need only establish his
occupational exposure was a factor in the resulting condition of ill-being. See Gross v.
Illinois Workers’ Compensation Comm’n, 2011 IL App (4th) 100615WC, ¶¶ 22-23, 60
N.E.2d 587. While it is correct that in order to obtain an award of benefits under the Act, a
claimant need only prove an employment risk was a cause of his condition of ill-being
(Sisbro, Inc. v. Industrial Comm’n, 207 Ill. 2d 193, 205, 797 N.E.2d 665, 673 (2003)), we
find this basic proposition of law is not applicable in the context of a section 6(f)
presumption. Nothing contained in the legislative debates on House Bill 928 indicates the
legislature intended that an employer be required to eliminate any occupational exposure as a
possible contributing cause of a claimant’s condition in order to successfully rebut the
presumption that the disease or condition arose out of his employment. Claimant cites no
authority in support of this proposition and we decline to so hold. We note that if the
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employer is successful in rebutting the section 6(f) presumption, at that point the claimant
may, if the evidence supports it, assert that his occupational exposure was a cause of his
condition of ill-being, along the lines of Sisbro, thus entitling him to an award of benefits.
¶ 52 B. Whether Claimant Suffered a Work Accident
¶ 53 As explained, once a party has successfully rebutted a presumption such as the section
6(f) presumption here, the presumption vanishes and the parties proceed as if the
presumption never existed. Accordingly, we now consider claimant’s alternative argument
that the Commission’s subsequent finding that his heart attack did not arise out of a work
accident was against the manifest weight of the evidence. It is important to note that, while
claimant asserted in his section 6(f) argument above that it was his underlying coronary
artery disease that presumptively arose out of his employment, he argues in this second part
of his appeal that the “cardiac event” arose out of his efforts to clear snow in the parking lot
that day and that the Commission’s finding to the contrary is against the manifest weight of
the evidence. Specifically, claimant contends that “[t]he manifest weight of the evidence
leads to the conclusion that [he] exited the firehouse into cold air for the purpose of clearing
snow and that [he] did engage in the physical activity of clearing snow using a combination
of a shovel and/or a snow blower.” In other words, in his alternative argument on appeal,
claimant does not assert that the manifest weight of the evidence established his occupational
exposure over the years was a cause of his underlying coronary artery disease—only that his
work activities on the day in question caused the cardiac event. Thus, we will limit our
discussion to this argument.
¶ 54 “To obtain compensation under the Act, a claimant bears the burden of showing, by a
preponderance of the evidence, that he has suffered a disabling injury which arose out of and
in the course of his employment.” Sisbro, 207 Ill. 2d at 203, 797 N.E.2d at 671. “Both
elements must be present at the time of the claimant’s injury in order to justify
compensation.” Springfield Urban League v. Illinois Workers’ Compensation Comm’n, 2013
IL App (4th) 120219WC, ¶ 25, 990 N.E.2d 284. An injury occurs “in the course of
employment” when it “occur[s] within the time and space boundaries of the employment.”
Sisbro, 207 Ill. 2d at 203, 797 N.E.2d at 671. An injury “arises out of” employment when
“the injury had its origin in some risk connected with, or incidental to, the employment so as
to create a causal connection between the employment and the accidental injury.” Id.
¶ 55 Whether an injury arose out of and in the course of one’s employment is generally a
question of fact, and the Commission’s determination on this issue will not be disturbed
unless it is against the manifest weight of the evidence. Brais v. Illinois Workers’
Compensation Comm’n, 2014 IL App (3d) 120820WC, ¶ 19, 10 N.E.3d 403. “In resolving
questions of fact, it is within the province of the Commission to assess the credibility of
witnesses, resolve conflicts in the evidence, assign weight to be accorded the evidence, and
draw reasonable inferences from the evidence.” Hosteny v. Illinois Workers’ Compensation
Comm’n, 397 Ill. App. 3d 665, 674 (2009). “The test is whether the evidence is sufficient to
support the Commission’s finding, not whether this court or any other tribunal might reach
an opposite conclusion.” Land & Lakes Co. v. Industrial Comm’n, 359 Ill. App. 3d 582, 592,
834 N.E.2d 583, 592 (2005). “For the Commission’s decision to be against the manifest
weight of the evidence, the record must disclose that an opposite conclusion clearly was the
proper result.” Land & Lakes, 359 Ill. App. 3d at 592, 834 N.E.2d at 592.
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¶ 56 Here, the employer does not dispute that claimant’s heart attack occurred in the course of
his employment. Thus, our focus is limited to whether claimant’s heart attack occurred
“while [he was] shoveling snow in [the] fire department parking lot” as he alleged in his
application for adjustment of claim.
¶ 57 To that end, we note that claimant has no recollection of the events immediately
preceding his heart attack. As stated, claimant’s last memory prior to suffering his heart
attack and waking up in the hospital was “talking to one of the guys that was coming off
shortly after I got in.” In fact, claimant admitted that, instead of going outside to shovel
snow, he could have gone outside in order to smoke a cigarette.
¶ 58 Additionally, the record shows that, while three of claimant’s fellow firefighters heard
that claimant “was going outside to shovel” or “was outside snow blowing,” no one actually
heard a snowblower or saw claimant shoveling or blowing snow. Further, although three of
the four witnesses recalled seeing a snowblower outside, they could not agree as to the
location of the snowblower in proximity to claimant’s body. In particular, one witness
recalled the snowblower was five to six feet from claimant’s body, while another
remembered the snowblower being only two to three feet from claimant’s body, and yet
another did not recall seeing a snowblower at all. Finally, while the record shows that two of
the witnesses recalled claimant’s parking spot being clear of snow, one of them
acknowledged that the spot would have been empty of snow if another vehicle had been
parked there overnight. In short, the evidence surrounding claimant’s unwitnessed heart
attack failed to establish the heart attack arose out of his employment.
¶ 59 Based on our review of the record, we cannot say the Commission’s finding that claimant
was not removing snow at the time of his heart attack was error. Thus, the Commission’s
determination that claimant’s heart attack did not arise out of his employment was not against
the manifest weight of the evidence. Further, even if it could be argued claimant had not
confined his manifest weight argument to his heart attack, but had also included the
development of his coronary artery disease, we would find the Commission’s decision that he
did not suffer accidental injuries that arose out of his employment was not against the
manifest weight of the evidence. Claimant presented no evidence that his occupational
exposure contributed to cause his coronary artery disease. Instead, Dr. Berry testified only
that there existed medical research that generally supports a correlation between a
firefighter’s occupational exposure and the development of coronary artery disease. Dr.
Berry did not opine that claimant’s occupational exposure contributed to cause his disease.
Thus, claimant failed to establish a causal connection existed between his occupational
exposure and coronary artery disease.
¶ 60 In closing, we note that, despite denying claimant benefits under the Act, the Commission
remanded the matter pursuant to Thomas, 78 Ill. 2d 327, 399 N.E.2d 1322. This remand was
in error.
¶ 61 III. CONCLUSION
¶ 62 For the reasons stated, we vacate the circuit court’s decision to the extent it affirmed the
Commission’s remand of the case, and we vacate the Commission’s remand. We otherwise
affirm the circuit court’s judgment confirming the Commission’s decision.
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¶ 63 Affirmed in part and vacated in part.
¶ 64 PRESIDING JUSTICE HOLDRIDGE, dissenting.
¶ 65 I dissent. The majority states that, in order to rebut the statutory presumption that the
claimant’s vascular disease and resulting heart attack were causally related to his
employment as a firefighter, an employer must offer some evidence sufficient to support a
finding that “something other than [the] claimant’s occupation as a firefighter caused his
condition.” Supra ¶ 45. According to the majority, an employer can make this showing (and
rebut the statutory presumption) even if it does not “eliminate any occupational exposure as a
possible contributing cause” of the claimant’s condition. Supra ¶ 51. From this premise, the
majority concludes that the employer successfully rebutted the statutory presumption in this
case by presenting Dr. Fintel’s opinions that (1) the claimant’s coronary artery disease was a
direct consequence of multiple, non-work-related risk factors, including the claimant’s
smoking history, his obesity, his diabetes, his male gender, and his family history; (2) the
claimant’s work as a fireman was “not the cause of” his underlying coronary artery disease;
and (3) “had [the claimant] been doing another job[,] he still would have experienced
progressive and life-threatening coronary disease.” (Emphasis and internal quotation marks
omitted.) Supra ¶ 49.
¶ 66 I disagree. To rebut the presumption, the opposing party must present evidence that is
“sufficient to support a finding of the nonexistence of the presumed fact.” (Internal quotation
marks omitted.) Franciscan Sisters Health Care Corp. v. Dean, 95 Ill. 2d 452, 462-63
(1983). Here, the presumed fact is that the claimant’s cardiovascular condition and ensuing
heart attack were causally connected to his employment as a firefighter. In order to establish
such a causal connection under the Act, a claimant must prove that some act or phase of his
employment was a causative factor in his ensuing injuries. Land & Lakes Co. v. Industrial
Comm’n, 359 Ill. App. 3d 582, 592 (2005). A work-related injury need not be the sole or
principal causative factor, as long as it was a causative factor in the resulting condition of
ill-being. Sisbro, Inc. v. Industrial Comm’n, 207 Ill. 2d 193, 205 (2003). Even if the claimant
had a preexisting degenerative condition that made him more vulnerable to injury, recovery
for an accidental injury will not be denied as long as he can show that his employment was
also a causative factor. Sisbro, 207 Ill. 2d at 205; Swartz v. Industrial Comm’n, 359 Ill. App.
3d 1083, 1086 (2005). A claimant may establish a causal connection in such cases if he can
show that a work-related injury played a role in aggravating or accelerating his preexisting
condition. Mason & Dixon Lines, Inc. v. Industrial Comm’n, 99 Ill. 2d 174, 181 (1983);
Azzarelli Construction Co. v. Industrial Comm’n, 84 Ill. 2d 262, 266 (1981); Swartz, 359 Ill.
App. 3d at 1086.1 Accordingly, the statutory presumption of causation in this case required
the fact finder to presume that the claimant’s work as a firefighter was a contributing cause
of his underlying cardiovascular condition, which caused his heart attack and his ensuing
1
Similarly, to recover compensation under the Occupational Diseases Act (820 ILCS 310/1 et seq.
(West 2014)), the claimant must prove that he suffers from an occupational disease that is causally
connected to his employment. Bernardoni v. Industrial Comm’n, 362 Ill. App. 3d 582, 596 (2005).
However, the occupational activity need not be the sole or even the principal causative factor, as long as
it is a causative factor in the resulting condition of ill-being. Id.; see also Gross v. Illinois Workers’
Compensation Comm’n, 2011 IL App (4th) 100615WC, ¶ 22.
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disability. To rebut this presumption, the employer was required to present some contrary
evidence suggesting that the claimant’s employment was not a contributing cause of his
cardiovascular condition. 2 For example, the employer could rebut the presumption by
presenting expert opinion testimony that (1) exposure to smoke or toxic fumes while fighting
fires is not a risk factor for the claimant’s cardiovascular condition or (2) the claimant’s
particular level of exposure to smoke or toxic fumes on the job did not causally contribute to
his cardiovascular condition.
¶ 67 Here, the employer did neither. Instead, it presented Dr. Fintel’s opinion that the
claimant’s coronary artery disease was caused by multiple, non-work-related risk factors and
not by his work as a firefighter. In my view, Dr. Fintel’s opinion was insufficient to rebut the
presumption of causation in this case. Dr. Fintel acknowledged that medical literature has
noted an increased risk of coronary artery disease in firefighters, and he conceded that the
claimant’s work as a firefighter “could be a risk factor” for coronary artery disease depending
on his level of exposure to smoke. On cross-examination, Dr. Fintel stated that he was
unaware of any connection between the claimant’s occupation and his coronary artery
disease because he was “unaware of what extent of smoke exposure [the claimant] had in
[his] fire suppression activities.” Accordingly, Dr. Fintel did not (and could not) rule out the
possibility that the claimant’s occupational exposure to smoke and toxic fumes was a
contributing cause of his coronary artery disease and resulting heart attack.
¶ 68 Given this, Dr. Fintel’s opinion that the claimant’s coronary artery disease was not
causally connected to his work as a firefighter was without foundation and unworthy of
credence. Expert opinions “must be supported by facts” (internal quotation marks omitted)
(Gross, 2011 IL App (4th) 100615WC, ¶ 24) and are only as valid as the facts and reasons
underlying them (id.; see also Sunny Hill of Will County v. Illinois Workers’ Compensation
Comm’n, 2014 IL App (3d) 130028WC, ¶ 36). The proponent of expert testimony must lay a
foundation sufficient to establish the reliability of the basis for the expert’s opinion. Gross,
2011 IL App (4th) 100615WC, ¶ 24; see also Sunny Hill of Will County, 2014 IL App (3d)
130028WC, ¶ 36. If the basis of an expert’s opinion is grounded in guess or surmise, it is too
speculative to be reliable. Gross, 2011 IL App (4th) 100615WC, ¶ 24. Because Dr. Fintel
acknowledged that the claimant’s employment could be causally related to his coronary
artery condition “depending on his level of exposure” to smoke on the job but admitted that
he was unaware of the claimant’s actual level of exposure to smoke as a firefighter, Dr.
Fintel’s opinion that the claimant’s job was not causally connected to his coronary artery
condition was speculative and without foundation. Given the information made available to
him, Dr. Fintel could not reasonably conclude that the claimant’s employment was not a
contributing cause of his coronary artery disease. Moreover, even assuming arguendo that
the claimant’s coronary artery condition was initially triggered solely by personal risk factors
such as smoking and obesity (which is not clear from the evidence), Dr. Fintel lacked
sufficient information to conclude that the claimant’s condition was not aggravated or
2
I disagree with the majority’s statement that, in order to rebut the presumption, the employer
merely needs to present some evidence sufficient to support a finding that something other than the
claimant’s occupation caused his condition. Supra ¶ 45. The presumed fact under section 6(f) is that the
claimant’s occupation was a contributing cause of his condition of ill-being. An employer cannot rebut
this presumed fact merely by pointing to other potentially contributing causes. Rather, it must present
evidence sufficient to support a finding that the claimant’s employment was not a contributing cause.
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accelerated by his occupational exposure to smoke and fumes. Because Dr. Fintel’s opinion
lacked sufficient foundation to support a finding of no causal connection, the employer failed
to rebut the statutory presumption in this case. Franciscan Sisters Health Care Corp., 95 Ill.
2d at 462-63.
¶ 69 One final point bears mentioning. In determining that an employer rebuts the section 6(f)
presumption by presenting some evidence that “something other than the claimant’s
occupation as a firefighter caused his condition,” the majority relies entirely upon certain
comments made by Representative Hoffman during the floor debates on House Bill 928,
which enacted section 6(f) in Public Act 95-316 (eff. Jan. 1, 2008).3 Supra ¶¶ 44-45. The
majority states that it considered this legislative history because it was “unable to discern
from the language of the Act the amount of evidence necessary” to rebut the presumption. In
other words, because section 6(f) does not specify a particular quantum or type of evidence
required to rebut the presumption, the majority concludes that the statute is ambiguous and in
need of clarification by resort to legislative history.
¶ 70 I disagree. Where statutes are enacted or amended after judicial opinions are published,
“it must be presumed that the legislature acted with knowledge of the prevailing case law.”
(Internal quotation marks omitted.) Burrell v. Southern Truss, 176 Ill. 2d 171, 176 (1997);
see also Bagcraft Corp. v. Industrial Comm’n, 302 Ill. App. 3d 334, 339 (1998); Manago v.
County of Cook, 2016 IL App (1st) 121365, ¶ 22. We must therefore assume that the
legislature was aware of and approved the existing common-law standards for overcoming
rebuttable presumptions when it enacted section 6(f). See Burrell, 176 Ill. 2d at 176. That
standard was articulated in Franciscan Sisters Health Care Corp. Because section 6(f) does
not explicitly announce a different standard, we must presume that the legislature
incorporated the common-law standard. Burrell, 176 Ill. 2d at 176; see also Bagcraft Corp.,
302 Ill. App. 3d at 338 (“[t]he judiciary will not interpret a statute in a manner that will
abrogate the common law unless such intent is clearly gleaned from the language of the
statute”); Malfeo v. Larson, 208 Ill. App. 3d 418, 424 (1990) (a statute “cannot be construed
as changing the common law beyond what is expressed by the words of the statute or is
necessarily implied from what is expressed”). Accordingly, there is no ambiguity in section
6(f) and therefore no need to consider that section’s legislative history. As the majority
acknowledges, unambiguous statutes must be construed according to their plain meaning,
without resort to legislative history or other aids for construction.4
3
As the majority notes, Representative Hoffman was the bill’s sponsor.
4
In my view, the use of legislative history in construing a statute’s meaning is often problematic
even if the statute is ambiguous. As Justice Scalia noted, “[w]e are governed by laws, not by the
intentions of legislators.” Conroy v. Aniskoff, 507 U.S. 511, 519 (1993) (Scalia, J., concurring).
“[L]egislators do not make laws by making speeches on the floor of the legislative chamber.” Town of
the City of Bloomington v. Bloomington Township, 233 Ill. App. 3d 724, 736 (1992). “They make laws
by majority vote on a specifically worded bill that has been read three times before each house and
distributed to each legislator.” Id.; see also Ill. Const. 1970, art. IV, § 8(c), (d). “Neither the disclosed
nor undisclosed intent of a legislator *** becomes law; only the bill as it reads when passed becomes
law.” (Emphasis omitted.) Town of City of Bloomington, 233 Ill. App. 3d at 736. Thus, while a court
may properly consult dictionaries and other appropriate sources in interpreting the meaning of
ambiguous terms contained in a statute, the intent of any individual legislators prior to the enactment of
the statute is arguably irrelevant. In any event, statements made by individual legislators during floor
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¶ 71 For the reasons set forth above, I would find that the employer failed to rebut the
statutory presumption of causation in this case. I would therefore reverse the Commission’s
decision and remand the matter to the Commission.
debates or in committee reports do not necessarily reflect the intent of all of the legislators who
ultimately voted to enact the law in question. Some legislators might not have been aware of such
statements when they voted. See, e.g., Krohe v. City of Bloomington, 329 Ill. App. 3d 1133, 1139
(2002) (Steigmann, J., dissenting). Unless the legislator’s statements are included in the language of the
statute itself, the statements are not voted upon by the legislators or signed into law by the governor.
Only the language of the statute, as passed, could properly convey the “legislature’s intent” in passing
the statute, assuming that such an intent exists and is legally relevant.
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