Ghere v. Industrial Commission

Citations: 663 N.E.2d 1046; 278 Ill. App. 3d 840; 215 Ill. Dec. 532; 1996 Ill. App. LEXIS 171Docket: 4 — 95 — 0476WC

Court: Appellate Court of Illinois; March 27, 1996; Illinois; State Appellate Court

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Elsie Ghere, widow of Jim Ghere, appeals a trial court's confirmation of the Industrial Commission's decision, which upheld an arbitrator's ruling regarding her husband's death. She contends that (1) the arbitrator wrongly excluded Dr. Climaco's testimony, (2) a letter from the Illinois State Water Survey was improperly denied as evidence, and (3) the finding that her husband did not sustain a work-related injury on August 22, 1990, is against the manifest weight of the evidence. 

Jim Ghere collapsed at work while employed as a flagman for Howell Asphalt and died from a heart attack, as noted on his death certificate. On the day he collapsed, he had begun work at 6:30 a.m. and was tasked with keeping traffic clear while paving a highway. Witness Roger Carter testified that Ghere worked long hours in hot, humid conditions without taking breaks for water or relief. Another witness, Tim Murphy, confirmed the high temperatures and also observed Ghere get a drink before collapsing. The claimant noted that Ghere had undergone prostate surgery three months prior but had no prior heart issues. Dr. Climaco, the decedent's physician, had treated him multiple times since 1979, with the last visit occurring in early 1990. The court ultimately affirmed the Commission's decision.

Dr. Climaco testified that he did not treat the decedent for heart issues. The employer objected to Dr. Climaco's opinions on the cause of death and any causal connection to the decedent's work environment, arguing that these opinions were not disclosed 48 hours prior to the arbitration hearing; the arbitrator upheld this objection. The claimant then presented Dr. Stuart Frank's deposition, a cardiologist who stated that the decedent's medical records were insufficient for a definitive determination regarding the cause of death or its connection to environmental factors. Dr. Frank suggested that the likely causes of death were a myocardial infarction (heart attack) or fatal ventricular arrhythmia. He clarified that ventricular arrhythmia is a condition where the heart cannot effectively pump blood, leading to death.

During questioning, Dr. Frank was presented with hypothetical scenarios about the decedent's work conditions, including heat and potential exposure to harmful gasses. He indicated that exposure to excessive gas or carbon monoxide might have precipitated or accelerated the heart conditions. However, he also noted his lack of familiarity with a flagman's activities and could not confidently assess the relationship between the decedent's work environment and his death, although he later stated that the work activities could have provoked a heart issue.

James Campbell, the paving superintendent, testified that he assigned the decedent to be the lead flagman and observed no signs of distress or need for a break shortly before the decedent collapsed. He noted that the air temperature was 70 to 75 degrees and explained that while there would be some heat difference from standing near the asphalt paver, the decedent was positioned far enough away (150 to 200 feet) that he would not feel significant heat from the asphalt.

Dr. Stephen Schuman, an internist and cardiologist, provided testimony for the employer, stating the decedent's death resulted from cardiac arrest due to either primary ventriculation or a spontaneous blood clot related to coronary disease. He noted that the decedent experienced ventricular fibrillation, which is a rapid and chaotic heart rhythm, and asserted that this event was coincidental. Dr. Schuman emphasized that coronary disease is prevalent among men over 60 and that heart attacks often occur without warning. He found no link between the decedent's work activities or environment and his death, maintaining his opinion regardless of the temperature on August 22, 1990, which the employer documented as a maximum of 78 degrees and a minimum of 67 degrees. 

The claimant attempted to introduce a letter concerning air temperature from the Illinois State Water Survey, but the arbitrator excluded it on hearsay grounds. The arbitrator ruled that the claimant failed to prove the decedent sustained an accidental injury related to employment, a decision upheld by the Commission and confirmed by the Douglas County circuit court. 

The claimant argued that the arbitrator erred by not allowing Dr. Climaco to testify on potential causal connections between the decedent’s work and his heart attack. The arbitrator disallowed Dr. Climaco’s testimony due to a lack of timely disclosure of his opinions as required by section 12 of the Illinois Workers' Compensation Act, which mandates that a surgeon’s report be provided to the employer 48 hours prior to the hearing. The claimant contended that section 12 applies only to examining physicians, not treating physicians, a position not definitively addressed by the supreme court or appellate courts. The summary suggests that restricting section 12 to examining physicians would undermine its intended purpose.

Section 12 aims to prevent surprise medical testimony during arbitration by requiring an employee's physician to provide records to the employer at least 48 hours before the hearing. The court held that this requirement is not limited to examining doctors. In the cited case of Nollau, the arbitrator allowed a treating physician to testify without prior submission of a report, as there was no evidence that records were requested, indicating that testimony cannot be excluded solely for lack of record submission. However, in the current case, the employer had Dr. Climaco’s reports in advance, but his opinion regarding the causal link between the decedent's work environment and heart attack was not mentioned in the records. Thus, the arbitrator correctly upheld the employer's objection to this testimony.

The claimant's argument for admitting a non-certified letter from the Illinois State Water Survey as evidence was rejected, as it does not meet the hearsay exception established in precedent. Finally, the claimant contended that the Commission's finding of no accidental injury related to employment was against the manifest weight of the evidence. However, the burden is on the claimant to prove all elements of the claim, and the Commission's factual determinations are upheld unless clearly against the evidence.

In Hansel. Gretel Day Care Center v. Industrial Commission, the court upheld the Commission's authority to assess witness credibility, resolve evidence conflicts, and determine the weight of evidence, stating that the Commission's decision should only be overturned if it is against the manifest weight of the evidence. The case involved a claimant arguing that the decedent's work activities led to his heart attack, supported by conflicting medical testimonies. Dr. Frank suggested a possible connection between the work environment and the decedent's death, while Dr. Schuman firmly denied any link, irrespective of the ambient temperature on the day in question.

The claimant also presented testimonies regarding temperature conditions on August 22, 1990, with discrepancies between witnesses. Evidence from the National Climatic Data Center indicated a maximum temperature of 78 degrees, contrasting with claims of higher temperatures. Additionally, while one witness argued that heat from asphalt significantly increased the temperature, another clarified that the decedent was too far from the source of heat to be affected.

Ultimately, the Commission found sufficient factual evidence to support its conclusion that the decedent's death did not arise from his employment. The court affirmed the Commission's decision, concluding that it was not against the manifest weight of the evidence.