Johnston v. Ill. Workers' Comp. Comm'n
| Decision Date | 13 April 2017 |
| Docket Number | No. 2-16-0010WC,2-16-0010WC |
| Citation | 80 N.E.3d 573,2017 IL App (2d) 160010 WC |
| Parties | Kevin JOHNSTON, Appellant, v. The ILLINOIS WORKERS' COMPENSATION COMMISSION et al. (The East Dundee Fire Protection District, Appellee). |
| Court | United States Appellate Court of Illinois |
Timothy D. O'Neil, of Foote Mielke Chavez & O'Neil, LLC, of Geneva, for appellant.
William B. Isaly, of Ancel Glink Diamond Bush DiCianni & Krafthefer, PC, of Naperville, for appellee.
¶ 1 On February 25, 2014, claimant, Kevin Johnston, filed an application for adjustment of claim pursuant to the Illinois Workers' Compensation Act (Act) ( 820 ILCS 305/1 to 30 (West 2012)), seeking benefits from The East Dundee Fire Protection District (employer). He alleged he suffered injuries to his person "while shoveling snow in [the] fire department parking lot." Following a hearing, the arbitrator denied benefits under the Act, finding the employer had successfully rebutted the presumption under section 6(f) of the Act ( 820 ILCS 305/6(f) (West 2012)) that claimant's heart or vascular disease or condition arose out of his employment as a firefighter and further, that claimant did not suffer accidental injuries which arose out of his employment nor was his current condition of ill-being causally related to the alleged accident. On review, the Illinois Workers' Compensation Commission (Commission) affirmed and adopted the arbitrator's decision. On judicial review, the circuit court of Kane County confirmed the Commission's decision.
¶ 2 On appeal, claimant asserts that the Commission erred in finding the employer had successfully rebutted the statutory presumption found in section 6(f) of the Act. In the alternative, claimant contends that the Commission's finding his heart attack did not arise out of and was not causally related to a work accident was against the manifest weight of the evidence. We affirm in part and vacate in part.
¶ 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 garage. According to claimant, it was not uncommon for him to clear snow by himself, although often a group of firefighters worked together to clear the snow.
¶ 9 Claimant testified he reported to work shortly before 6 a.m. on the morning of February 5, 2014. He could not recall what the weather was like that morning. His last memory prior to suffering a heart attack that morning and waking up in the hospital was "talking to one of the guys that was coming off shortly after I got in." He did not recall using a snowblower or a shovel to clear snow that morning. He admitted he could have gone outside to smoke a cigarette that morning, but he could not recall that either.
¶ 10 Claimant underwent emergency quadruple bypass surgery on February 6, 2014. At the time of the arbitration hearing, claimant had just finished 12 weeks of cardiac rehab. He had not yet been released to return to work.
¶ 11 The evidence depositions of four fellow firefighters, Tyler Burd, Ashley Rebou, Jeremy Schwab, and Kanen Terry, were introduced into evidence.
¶ 12 Tyler Burd testified he worked for the employer as a firefighter and Emergency Medical Technician (EMT). According to Burd, on the morning of February 5, 2014, claimant walked into the fire station "around 5:59" a.m. which was "unusually late for him." Burd stated that upon entering the building, claimant walked past him on the main floor and proceeded upstairs to the dayroom where he sat down and spoke with Lieutenant Parthun for "about half an hour or so." Burd testified that after the two had finished their conversation, Lieutenant Parthun told Burd that claimant "was going outside to shovel around his car." According to Burd, there was approximately three to four inches of snow on the ground that morning. Approximately 10 minutes after Lieutenant Parthun had mentioned claimant was going outside to shovel snow, Burd looked out the back door and saw claimant lying face down at the south end of the garage. He ran over to claimant, rolled him over, and found he did not have a carotid pulse, so he ran inside to call for help and then returned to claimant. Burd testified that Schwab and Rebou rushed out. As Rebou started compressions, Burd ran back inside to get Lieutenant Parthun. Within a few minutes, they had claimant on a backboard and took him into the building where they used a defibrillator and "[b]rought him back to life." They then put claimant in an ambulance and transported him to the hospital. According to Burd, "[t]here was a lot of snow on the ground, so it was a very slow ride" to the hospital.
¶ 13 Burd did not recall hearing a snowblower on the morning of February 5, 2014, but he recalled having seen a snowblower in front of the garage which was approximately five to six feet from claimant's body. The snowblower had been removed from the garage and the garage door was closed. Burd recalled seeing claimant's truck and testified that the snow around the truck had been cleared. Burd acknowledged that the spot would have been empty of snow if another vehicle had been parked there overnight. Burd testified that snow removal was regularly done by the firefighters and that "[i]f there's snow on the ground, we removed it."
¶ 14 Burd further testified he knew claimant smoked "quite a bit," or "at least two packs a day." According to Burd, claimant would typically smoke out by the garage. He also testified that claimant was "not the healthiest eater," as he often observed him eating fast food.
¶ 15 Ashley Rebou testified she worked for the employer as a firefighter/paramedic. She was working on the morning of February 5, 2014, and was in the dayroom when claimant came in. According to Rebou, claimant "just sat down" and "[d]idn't say anything" which was unusual, but then she got up and went downstairs to check her "rig" while claimant and Lieutenant Parthun talked. Shortly thereafter, while she and other firefighters were in the main ambulance, claimant walked past them and went outside. Lieutenant Parthun stopped to talk and told them that claimant "was going out to shovel or get the snow out of his parking spot." Rebou testified that a little later, Schwab came in and told them that claimant "was down," so she went outside, checked for a pulse, and started compressions. They later moved him inside. According to Rebou, while outside, she observed a snowblower in front of the garage door, approximately two to three feet from claimant's body.
¶ 16 Jeremy Schwab testified that, on February 5, 2014, he was working for the employer as a firefighter/paramedic. He recalled that claimant arrived to work at 5:59 a.m. He stated it was unusual for claimant to arrive so late. He observed claimant come into the dayroom, and without saying anything to anyone, he "flopped into the recliner as if something—something was off." Schwab stated that around 6:30 or 6:45 a.m., he heard claimant "was outside snow blowing." Shortly thereafter, he responded to Burd's call for assistance and saw claimant face down in the snow. Schwab recalled seeing a snowblower and testified there was one to three inches of snow on the ground.
¶ 17 Kanen Terry testified he worked for the employer as a firefighter/paramedic. He recalled that claimant arrived to work at approximately 6 a.m. on the morning of February 5, 2014. According to Terry, this was unusually late for claimant, but he stated there was four to six inches of snow on the ground that morning. Later, as Terry was checking the rigs, Schwab ran in and said "[claimant] is down" or "[claimant] coded." Terry testified he went outside and saw claimant on the ground with Rebou "hovering" over him. He then assisted in the resuscitation efforts. Terry did not recall seeing a snowblower or a shovel near claimant's body. However, he did observe that the parking spot where claimant's truck was parked was clear of snow "from line to line," and it looked like someone had removed the snow.
¶ 18 Dr. Christopher Berry, a board certified interventional cardiologist, testified by way of evidence deposition. Dr. Berry first saw claimant on February 8, 2014. He treated claimant postoperatively, managing his cardiac arrhythmia and...
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Simpson v. Ill. Workers' Comp. Comm'n
...the present case under advisement, this court was asked to determine the application of this presumption in Johnston v. Workers' Compensation Comm'n , 2017 IL App (2d) 160010WC, 414 Ill.Dec. 430, 80 N.E.3d 573. In the Johnston opinion, we set forth in detail how the presumption is to be app......