Compensability of Heart Attack Claims

You cannot begin a discussion regarding heart attacks without mentioning Twice Over Clean, Inc. v. Industrial Commission 214 Ill. 403, 827 N.E.2d 409, 292 Ill.Dec. 880. But before you discuss Twice Over you must first deal with the prior dialog between the Illinois Supreme Court and the Appellate Court of Illinois, Industrial Commission Division in Sisbro, Inc. v. Industrial Commission 207 Ill. 193, 797 N.E.2d 665, 278 Ill.Dec. 70.

Sisbro involved a truck driver with a degenerative ankle problem. He stepped out of his delivery truck and into a pothole, twisting his ankle. There was conflicting medical testimony. The Petitioner was diabetic and had treatment for the same foot, for preventative reasons, every two to three months up until the time of the accident. The treater testified that the condition of ill-being could be caused by trauma. The respondent's expert testified that the condition of ill-being developed slowly over time as a result of the poorly controlled diabetic condition. The arbitrator found a causal connection between the injury and subsequent condition of ill-being. On review, the Commission affirmed. The respondent filed a review in the circuit court, arguing, among other arguments, that there was no accident. The circuit court affirmed the decision of the Commission. The respondent filed in the Appellate Court, Industrial Commission Division. The Appellate Court reversed the Commission finding that "[a]n employee whose preexisting condition was aggravated by an accident at work is not entitled to [worker's compensation] benefits 'where [his] health has so deteriorated that any normal, daily activity could have caused the injury, or where the activity engaged in presents risks no greater than that to which the general public is exposed.'" The Illinois Supreme Court granted the employee's petition for leave to appeal.

The Supreme Court succinctly stated the employer's position when it stated:

"In the case at bar, the Commission found that claimant's act of twisting his ankle as he stepped down from the 18-wheeler delivery truck was an accidental injury which arose out of and in the course of his employment. Sisbro does not seriously dispute this finding. Rather, Sisbro argues that this accidental injury was not causally-related to claimant's disabling condition, Charcot osteoarthropathy. Sisbro argues that the overwhelming weight of the evidence shows that claimant's condition (Charcot) was the result of a preexisting condition (diabetes) and that his preexisting condition (diabetes) was so "out of control" that it could have been aggravated by normal activities of life. Moreover, Sisbro contends that the appellate court correctly overturned the Commission's decision as against the manifest weight of the evidence because the Commission failed to consider whether the "normal daily activity exception" to compensability applied under the facts of this case."

The Supreme Court stated the mantra of every petitioner's attorney. That is that, "the accident need not be the sole cause or major cause of the condition of ill-being. It only need be a contributing factor and the Commission is the finder of fact". The employer's mantra has been that "if the employee's health has so far deteriorated that any normal daily activity is an overexertion, or the activity engaged in presents no greater risk that that to which the general public is exposed, compensation should be denied". The Supreme Court rejected the argument that there exists a "normal daily activity exception" to the general rule allowing compensation for work-related injuries which aggravate or accelerate a preexisting condition. Sisbro contends that the majority of the appellate court was correct when it held 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. In rejecting this argument the Supreme Court relied upon a series of heart attack cases. (Illinois Bell Telephone Co. v Industrial Commission 35 Ill.2d 474, 220 N.E.2d 435 (1966) and National Malleable & Steel Casting Co. v Industrial Commission, 32 Ill.2d 189, 204 N.E.2d 748) The Supreme Court ruled that even if the employee's condition of ill-being had so far deteriorated that any normal activity of daily living could have caused the problem, it is still compensable if there was a finding by the Commission that the accident was in fact a contributing factor.

While Sisbro was pending before the Supreme Court, not far behind was the Twice Over case. Twice Over dealt with an employee who was working in an unheated building and removing asbestos. It was extremely cold in the building. He began to experience chest pain the afternoon of the alleged accident. That evening he was taken to the hospital by ambulance and was diagnosed as having an acute inferior myocardial infarction. At trial his family doctor testified that the myocardial infarction (MI) was caused by the physical activity at work. The family doctor also testified that the employee's right coronary artery was 90% occluded and that any activity or no activity could put sufficient stress on the heart and result in an MI. He agreed that the employee was a heart attack waiting to happen. The employer's cardiologist testified, on direct examination, that the work activity did not cause the MI and that the enzyme levels did not support the contention that the MI occurred in the afternoon. The cardiologist's testimony on cross examination agreed that the enzymatic studies could be read as being consistent with an MI during working hours. The arbitrator and Commission found that the employee sustained a work related injury when he was removing asbestos from the building and that work activity contributed to the MI. The circuit court affirmed.

The Appellate Court, in citing its first decision in Sisbro, stated that the Twice Over case presented a stronger argument for the proposition that were the evidence establishes that the claimant's condition of ill-being is so far deteriorated that any stress even the most ordinary exertion, will bring on the heart attack, then the injury is not compensable. The Appellate Court reversed the Commission and denied compensability.

The employee filed a petition for leave to appeal to the Supreme Court. In a one paragraph order the Supreme Court, On October 7, 2003, directed the Appellate Court as follows:

"Petition for leave to appeal or appeal as a matter of right denied. In the exercise of this Court's supervisory authority, the Appellate Court, Third District, Industrial Commission Division, is instructed to vacate its judgment in Twice Over Clean v. Haulk, case No. 3-02-0353WC, and to reconsider in light of this Court's opinion in Sisbro, Inc. v. Industrial Comm'n, case No. 93729, 207 Ill.2d 198, 278 Ill. Dec. 70, 797 N.E.2d 665, 2003 WL 21197099 (05/22/03)."

On reconsideration the Appellate Court (Twice Over Clean v. Industrial Commission 348 Ill.App.3d 638, 809 N.E.2d 778, 284 Ill.Dec. 212) carved out a new rule for heart attack cases totally disregarding or misinterpreting the Supreme Court's ruling in Sisbro. The appellate court created an affirmative defense to any work injury by ruling that:

"But where, as here, the heart has deteriorated so that any exertion becomes an over‑exertion, where the mere circumstance that the employee was engaged in some kind of physical labor is what impels the doctor to testify that his work caused his death, we would have reached a point, if this Award were to be upheld, where all that is necessary to sustain an Award is that the employee shall have died of a heart attack. Here, it is plain that in the opinion of the only physician whose testimony could support the Award, death resulted from the circumstance that the employee had been subjected to any kind of exertion, even the exertion of merely being alive, so that, in this assistant medical examiner's opinion, death might easily have occurred during sleep."

The Court found the particular fact situation in Twice Over to be compelling in that if an individual's heart condition had so far deteriorated that the normal daily activity might have caused the heart attack, then the case is not compensable. "We hold that in light of his susceptibility to a heart attack outside of work, he failed in the first instance to prove a sufficient causal connection between his work and his injury." The Appellate Court basically ruled that even if the workplace contributed to the petitioner's heart attack, if in fact his heart condition had so far deteriorated that any activity or no activity could put sufficient stress on the heart to result in a myocardial infarction, then the employee has the burden of proving that the work accident was a sufficient causal connection. In essence, they ruled that "the normal daily activity" exception became an affirmative defense for the employer.

The Illinois Supreme Court accepted the employee's petition for appeal to the Supreme Court and reversed the Appellate Court. The Illinois Supreme Court took the Appellate Court to task and found that the testimony before the Commission noted that even though the employee's heart attack might have been inevitable, it was in fact caused by his heavy lifting that put extreme stress on his heart. In reversing the Appellate Court, the Supreme Court noted the Appellate Court majority held that the normal daily activity limitation bars compensation based entirely on one isolated statement by the treating doctor that any activity or no activity could have put sufficient stress on the heart to result in the myocardial infarction. In citing the dissent in the Appellate Court, the dissenting Justice noted that the employee's symptoms began during the performance of heavy labor under extreme temperature conditions. The majority of the Appellate Court ignored pertinent facts found by the Commission. The Supreme Court ruled that the Commission did in fact find sufficient causal connection between this work activity and the heart attack. The Court noted that, "The normal daily activity limitation, while relevant to the question of causation, cannot be applied as a matter of law to defeat" the employee's claim. It was error for the Appellate Court to reverse the Commission simply because of the susceptibility of a heart attack outside of work.

In attempting to prove that a heart attack is related to a work injury, the petitioner will always increase the likelihood of a successful award if he can prove that the employee at the time of the injury was in fact engaged in strenuous work and work that was not usual and ordinary. However, the mere fact that the employee was working and there is testimony that that work contributed to his heart attack should not bar compensability.

For an individual's employment to be determined to be a causative factor in development of his heart attack, he must prove by a preponderance or greater weight of the evidence, that the work stress, either mental or physical, precipitated the heart attack. Republic Steel Corp. v. Industrial Commission, 26 Ill. 2d 32, 185 N.E.2d 877 (1962). The employment need not be the "sole" or "principal" causative factor in development of the heart attack, but must be "a causative factor" in same. Sears, Roebuck & Co. v. Industrial Commission, 79 Ill.2d 59, 402 N.E.2d 231 (1980). A pre-existing heart condition does not preclude a finding of compensability as the Industrial Commission may find from the evidence presented that the employee's work duties aggravated or exacerbated his underlying condition and precipitated the heart attack. Generally, even when an employee suffers from heart disease, the employee may recover workers' compensation benefits for a heart attack which brings on the disability or death if the heart attack is work related. When there is work-related stress, either physical or mental, that aggravates an employee's heart disease so as to cause a heart attack, there is an accidental injury or death arising out of and in the course of employment. Wheelan Funeral Home v. Industrial Commission. 208 Ill.App.3d 832, 567 N.E.2d 662, 153 Ill. Dec. 704 (3rd Dist. 1991).

An employer, however, is not liable for a heart attack that results from heart disease that is so far advanced that any stress, even the most ordinary exertion, will bring on the attack, since it is only a coincidence that such an attack occurs at work, rather than somewhere else, and the resulting disability cannot be said to have been caused by an exertion greater than that which would be expected by the general public. Doyle v. Industrial Commission, 86 111.2d 544, 427 N.E.2d 544 (1981). Finally, when the stress involved is purely mental, one must examine the stress to determine whether same is greater than that which would be expected by the general public and where the stress is no greater than that which all workers face; there is insufficient evidence to support a finding of accident. Esco Corp. v. Industrial Commission, 169 Ill.App.3d 376, 523 N.E.2d 589 (4th Dist. 1988). However, the stress need not be greater than that experienced by his co-workers. Baggett v. Industrial Commission, 201 Ill.2d 187, 775 N.E.2d 908 (2002). In each case the finding of accident is a question of fact for the Industrial Commission to determine. Where the evidence is conflicting, it is for the Industrial Commission to resolve conflicts in the evidence and determine where the preponderance of the evidence lies. Such a finding cannot be overturned on appeal absent a determination that said finding is against the manifest weight of the evidence. Illustrative Cases

In 1966, the Supreme Court decided. Illinois Bell Telephone Co. v. Industrial Commission, 35 I11.2d 474, 220 N.E.2d 435 (1966), which consisted of the following facts: The deceased had been a lineman for the company for many years, but in 1959 suffered a heart attack which was unconnected with his work wherein he was hospitalized for approximately two weeks and off of work for several months. When he returned to the company, he was provided with a light clerical job at his previous salary. His clerical job consisted basically of working at a desk where he cross-checked data on punch cards and inventory records. At times he would go on errands with papers or records. On February 19, 1963, he delivered some papers to another office about four (4) blocks away, walking each way, and when he returned, he began to perspire and feel ill. He was taken home where he laid down on the couch and at approximately 11: 45 p.m. he became unconscious. He was transported to the hospital where he was pronounced dead on arrival. The company contended that the heart attack from winch Mr. Stockcr died did not arise from his employment, but from natural risk to which all persons with his disability are exposed.

The Supreme Court, in reversing the Industrial Commission and the Circuit Court of Cook County which had awarded death benefits, held that:

"... he walked on the streets every day in whatever he might be doing, whether on personal errands or occupational ones. The exertion involved and the risk incurred are nothing more than those to which the general public is equally exposed, the record showed that Stocker regularly engaged in activities around his home which were at least equally as strenuous as the four (4) block walk on the day of his death.

... (claims) to be compensable, must not only be sustained in the course of the employment, but must also arise out of it. It must be of such character that it may be seen to have had its origin in the nature of, or have been incidental to, the employment or it must have been the result of a risk to which by reason of the employment, the injured employee was exposed to a greater degree than if he had not been so employed. The mere fact that he was at work on the day of his heart attack and left early is not sufficient to establish a causal relationship between his employment, and his subsequent death, nor is it enough where one's heart has deteriorated so that any exertion becomes an overexertion, to merely show that he engaged in some type of physical therapy before suffering the attack".

In Doyle v. Industrial Commission, 86 Ill.2d 544 (1981), the Court was presented with a situation wherein it was alleged that the stress of the work environment had brought on the Petitioner's subsequent disability. The Petitioner had risen to the position of regional sales manager, but a recent budgetary cutback had left him without any field or salesman brokerage clerks, but he had been asked to increase his business in his region by a third (1/3). In the eight (8) months before his heart attack, Doyle spent about ten (10) hours a day in the office along with some weekends. He also traveled extensively and in 1976, had made nineteen (19) presentations to potential clients. On August 13, 1976, while at lunch with a business associate, he was struck by vivid coronary pain, went to a hospital, was admitted, and suffered a heart attack resulting in permanent disability. The records showed that the claimant suffered from progressive heart disease. The Petitioner stood 6 feet 2 inches tall and weighed about 250 pounds and had suffered chest pains as far back as 1965. In 1974, a stress test revealed that he suffered from ischemic heart disease, a shortage of blood to the heart caused by a buildup or atherosclerotic plaque within the coronary arteries. As the three coronary arteries became increasingly blocked, the blood supply to his heart was further reduced so that the chest pains occurred more often and more severely. When the heart needed a larger supply of blood, as in periods of physical activity or emotional stress, the arteries were not able to supply it and pain resulted. In this way, stress can be said to cause the symptoms, but not the disease. Mr. Doyle smoked three to four packs of cigarettes a day when his disease was diagnosed and cut down to one or two packs a day at the time of the attack. At the time of his diagnosis, Mr. Doyle was also advised to lose weight and was put on medication to keep his diabetes under control because both of which, obesity and diabetes, have been linked to heart disease. The employer's medical expert thought that nothing associated with work contributed to Doyle's disease, while Mr. Doyle's physician thought that work related stress might have contributed to the attack. In fact, he had told Doyle to take it easy when the heart disease was diagnosed. Mr. Doyle's doctor did testify that the myocardial infarction could have occurred absent any exertion. The Supreme Court went on to state, in addressing the compensability of this claim:

"When workers' physical structures, diseased or not, give way under the stress of even their usual tasks, the law views this as an accident arising out of and in the course of employment. The one exception to this rule is when the heart disease is so far gone, that any stress, even the most ordinary exertion, will bring on the massive symptom of heart attack. In that case the employer is not liable, because it is only coincidence that the attack occurred at work rather than somewhere else ♦ the disability can truly be said to be not work related. Thus, compensation is denied where the employee's disability is brought on under exertion no greater than would be expected by the general public, as where the worker sat at a desk, taking orders, walking toward the first aid station, or where the employee's attack followed a walk around a freight yard."

The Commission implicitly found that Doyle's attack was not caused by work related stress, but that the heart disease had progressed to the point where any stress was too much.

In the case of Esco Corp. v. Industrial Commission, 169 Ill.App.3d 376, 523 N.E.2d 589 (4th Dist. 1988), the Appellate Court reversed an award entered by the Industrial Commission which had awarded permanent total disability benefits to the employee. The claimant, Mr. Bullias, had sought workers' compensation benefits following a heart attack which he had suffered. The claimant worked for Esco from April 18, 1950 until April 16, 1982. In April of 1978, the claimant was replaced as director of industrial relations, but experienced no cardiac problems. In September of 1978, he was replaced by Mr. Edward Judice, who became his supervisor. In December of 1979, Mr. Judice spoke with the claimant about his possible termination and advised the claimant that he would have to prove that he was valuable to the company and would have 6 months to hold down the cost of workers' compensation and control absenteeism. The claimant felt shocked and nervous and began sending out resumes. After 1981, the business went in to a decline and a number of employees were terminated. From May 1980 to January 1982, claimant's duties and responsibility were reduced. Claimant became nervous and depressed, taking long car rides at night and watching television frequently. On January 15, 1982, the claimant was advised he was being transferred from the personnel department to the production control department due to a lack of work in personnel. The claimant performed these jobs for three months, but felt unqualified, anxious, and nervous during this time. He felt humiliated and embarrassed about his entire situation, he was often unable to sleep, sometimes vomited on the way to work, and considered suicide. On April 8, 1982, it was suggested to the claimant that he retire early because business was not going well. The claimant requested a full pension which was denied and claimant refused to retire early. On April 16, 1982, the Petitioner was terminated. He testified that when this occurred, he was in complete shock, extremely depressed, and upset. On September 9, 1982, after playing 18 holes of golf, claimant suffered a myocardial infarction at lunch. The Petitioner was diagnosed as having an acute interior wall myocardial infarction.

The family physician testified that he believed there was a causal connection between the work related stress and the cardiac disease. The claimant's history showed no risk factors other than stress at work. The records did indicate that the claimant's mother had died of a heart attack at age 60 and that the claimant's brother had suffered a slight heart attack. It was the family physician's opinion that adrenalin which people under stress release breaks down to catecholamines, which collect and block the arteries. In June of 1983, a coronary artery bypass was performed. Dr. Robert King, the surgeon, testified that stress does cause an outpouring of adrenalin which elevated blood pressure and cortisone, which makes the lining of the arteries more susceptible to damage. He believed that the constriction of claimant's arteries progressed much faster than that of the general population because his self-image had been destroyed. On behalf of the employer, Dr. McGann, a cardiologist, testified that the demotion and termination were only minor risk factors in the myocardial infarction and he believed that the claimant's family history and elevated cholesterol level were the most important factors, The court went on to state:

"If there is work related stress, either physical or emotional that aggravates a disease so as to cause the heart attack, then there is an accidental injury arising out of and in the course of the employment. Whether or not an injury occurs in the course of employment, depends upon the time, place, and circumstances under which the accident occurred. The majority of the stress which claimant points to occurred while he was employed. Compensation has been awarded for heart attacks suffered after the employee left his work.

In the present case, the myocardial infarction occurred five months after claimant was terminated. The term "employment" includes a reasonable time before or after actual employment. We find that a heart attack occurring five months after termination of employment falls outside a period of reasonable time after the actual employment as to permit an award of benefits".

The court went on to state that here, we find that, as a matter of law, claimant's disability is not compensable because his myocardial infarction constituted a subjective reaction to normal working conditions. The stress here was not unusual when compared with the stress found in employment life generally. Claimant found himself in a situation which had no greater dimensions than the situations all employees potentially face, causing mental stress and tension. All workers face the possible loss of employment triggered by an economic decline. This is a normal working condition. Transfers, demotions, new responsibilities, and layoffs or terminations are normal and expected conditions of employment life, as is the accompanying insecurity and worry. The stress stemming from the fear of losing a job was not sufficiently greater than that faced by all workers so as to make the heart attack compensable. The stress was directly referable not to employment duties, but to the inevitable transfers, demotions and terminations which are necessarily attendant to economic declines in a business, and which frequently occur during the several years just prior to a manufacturer's shutdown. Compensation is denied where the employee's disability is brought on under stress no greater than that which would be expected by the general public.

In the case of Wheelan Funeral Home v. Industrial Commission 208 Ill.App.3d 832, 567 N.E.2d 662 (3rd Dist. 1991) the Appellate Court affirmed the decision of the Industrial Commission which found that a fatal myocardial infarction was caused by work related stress. The decedent was 54 years old and had been employed by the Respondent for over 20 years as a funeral director. The deceased's job duties included picking up bodies and bringing them into the funeral home, lifting, embalming and applying cosmetics to the bodies, setting up and remaining on coffin visitation and going to the church and cemetery during funeral services. The deceased had consistently worked overtime in the months prior to his death and had worked 27 hours of overtime in the pay period preceding his death. The day before his death, the deceased worked at a visitation service until approximately 9:30 p.m., had remained on call that evening, and had to pick up and embalm a body. The deceased conducted a funeral service on the morning of his death, October 18, 1984. At approximately 4:00 p.m., the he was sitting in the funeral home at a desk reading a newspaper when he made a gasping noise and dropped over at the desk. He was pronounced dead of a massive myocardial infarction. It should be noted that the record indicated that the deceased was 5 feet 1 inch tall and weighed between 275 and 285 pounds. In 1981 he was diagnosed as having arteriosclerotic coronary artery disease with recent bouts of unstable angina, exogenous obesity, borderline diabetes mellitus, and anemia. In September of 1982 the deceased had increased chest pain and an electrocardiogram revealed evidence of additional myocardial infarction that had not been present on the earlier tracings. In January of 1984, the deceased's angina was increasing which resulted in coronary bypass surgery in February of 1984. The deceased returned to work on April 30, 1984 and the last time his examining physician saw the deceased was on September 25, 1984. Dr. McCormick, the Petitioner's treating physician, opined that the deceased had severe underlying cardiac problems and there was a reasonable likelihood that a work situation could have been a contributing factor to the acute occurrence which led to his death. The medical expert called on behalf of the Respondent testified that the time relationship between the stress and the death of the deceased was too long to establish a causal connection. The Appellate Court, in affirming the decision, stated as follows:

"Generally, even when 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. It is well established that 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 during the course of the employment. Further, 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. In addition, a pre-existing heart condition does not preclude the Commission's finding that the heart attack is compensable."

In the case of Baggett v. Industrial Commission, 201 I11.2d 187, 775 N.E.2d 908 (2002), the Supreme Court reversed the judgment of the Appellate Court and affirmed the Circuit Court judgment which adopted the Arbitrator's award finding Mr. Baggett entitled to permanent total disability benefits. Mr. Baggett was a high school industrial arts teacher. He collapsed at work and it was determined that his collapse was caused by upper gastrointestinal tract bleeding and that the resultant loss in blood volume lead to a heart attack, cardiac arrest and brain damage. A number of witnesses testified at arbitration. The record indicated that Baggett was under substantial stress at the time of his injury. The members of Baggett's building trade's class were required to build houses under strict deadline pressures. Furthermore, prior to Baggett's injury, the school district eliminated one-half of the time he could spend with student workers. That change required Baggett to complete the houses while working half days and with only one class instead of two.

The project was then delayed for reasons beyond Baggett's control and it was as much as five weeks behind schedule. The record further indicated that Baggett's students were inclined to horse play and Baggett's disciplinary duties further interfered with completing the home constructions within the deadline. The record indicated that Baggett's young students worked around scaffolding, power tools, and other hazardous construction conditions that intensified his responsibility to supervise them closely. Under the approaching deadlines, Baggett became pale and tired. He confided in his wife that he was under substantial stress and expressed his concerns about completing the project on time. The Court concluded that the stress Baggett was under was different from the stress generally experienced by the public. His stress affected him cumulatively. The school district argued that Baggett must show that his employment presented a greater risk of stress than his co-workers experienced and that such stress reached an unusual and increased level at the time of his injury. The Court rejected this argument stating that the test was whether the working conditions expose the worker to risks greater than those in the general public. The Court stated that the claimant is not required to show stress greater than that of his co-workers, but that his stress was different from the stress generally experienced by the public. The Court went on to state that for purposes of workers' compensation law, a critical distinction exists between the everyday stress of life accumulating to the point that any daily activity would have led to a specific injury and the every day mental stress of a work environment accumulating to the point that any further work related stress would lead to physical injury.

Both a casual and in depth review of the case law leads to different conclusions as to whether a particular set of facts are compensable or not compensable. As a Petitioner, you are well advised to present the facts in a light most favorable to your client, that is, the activity that he employee was engaged in when he suffered the heart attack was stressful to the extent that the general public is not exposed to such physical or mental stress. That must be followed by medical testimony that supports the claim of compensability. Certainly a cardiologist's opinion should carry more weight than the family doctor's opinion. As for defending these cases, testimony that the alleged activity was no different than any other day is helpful. A cardiologist's opinion that there is no causal connection should be placed in evidence. If there is nothing to rebut the Petitioner's claim, settle the case!