Opinion
No. 1-16-3353WC-U
03-09-2018
BARBARA CARLINI, wife of DON R. CARLINI, deceased, Plaintiff-Appellant, v. ILLINOIS WORKERS' COMPENSATION COMMISSION and DRC ECLECTIC INSURANCE AGENCY, INC., Defendants-Appellees.
Appeal from the Circuit Court of Cook County
No. 16-L-5018
Honorable James M. McGing, Judge, Presiding.
JUSTICE HUDSON delivered the judgment of the court.
Presiding Justice Holdridge and Justices Hoffman, Harris, and Barberis concurred in the judgment.
ORDER
¶ 1 Held: The decision of the Illinois Workers' Compensation Commission finding decedent did not suffer a heart attack arising out of and in the course of his employment was not contrary to the manifest weight of the evidence where decedent's heart attack occurred while decedent was exercising at a health club.
¶ 2 I. INTRODUCTION
¶ 3 Claimant, Barbara Carlini (as wife of decedent Don R. Carlini) appeals an order of the circuit court of Cook County confirming a decision of the Illinois Workers' Compensation
Commission (Commission) denying her claim for benefits pursuant to the Illinois Workers' Compensation Act (Act) (820 ILCS 305/1 et seq. (West 2006)). For the reasons that follow, we affirm.
¶ 4 II. BACKGROUND
¶ 5 Claimant's decedent, Don Carlini, was an insurance agent. He also was the owner of respondent, DRC Eclectic Insurance Agency, Inc., which was a Farmer's Insurance affiliate. On February 20, 2007, claimant's decedent suffered a heart attack while exercising on a treadmill at a health club during his lunch period. He never regained consciousness and died on February 26, 2007. Claimant had previously suffered a heart attack in 1993 and, in 2004, he sought medical care for chest pain.
¶ 6 Leah Jason, decedent's daughter, testified that she is employed by respondent. She was so employed in 2006 and 2007. At that time, decedent, her aunt (Geralyn Nocita), and her grandmother (Gloria Carlini) were also employed by respondent. Decedent owned the business and was the principal insurance agent. Typically, decedent would arrive for work at about 9 a.m., around noon he would go to work out, and then he would return and stay into the evening. Business was bad in 2006 and 2007. Insurance rates had increased and the agency was having difficulties retaining customers. Jason said it was "a very stressful time." Decedent exhibited stress while at work in December 2006. However, after decedent returned from working out, he stood "a little bit taller" and had "new energy." Jason stated sometimes he would "even come back with a smile." He would then typically remain at work until about 8 p.m.
¶ 7 Farmer's set quotas that had to be met in order to qualify for a bonus. Decedent believed they had met one such quota toward the end of 2006. However, it was later determined that they
did not. A juvenile life insurance policy did not qualify for full credit, as a regular policy would, and this caused them to fall short of the quota. The bonus would have been about $10,000.
¶ 8 Additionally, a short time prior to decedent's death, a customer was claiming decedent had not advised her that she needed workers' compensation insurance. Jason testified that this required decedent to file an "errors and omissions" report. This caused decedent stress. While defendant typically ate a bagel for lunch, in December 2006, he started eating chocolate, which he did when he was "stressed out"—particularly after learning about the "errors and omissions issue." Following his 1993 heart attack, decedent had followed a healthy diet. Prior to the issue arising, Jason never observed decedent eating chocolate in this manner.
¶ 9 On February 20, 2007, Jason and decedent were working. Decedent "was sitting at his desk, and he was kind of stiff." He looked "terrible" and appeared to be stressed and in pain. Nevertheless, decedent went to his health club. A short time later, Jason's aunt received a call stating decedent had collapsed. Jason arrived at the health club at the same time as the paramedics. Decedent was transported to Westlake Hospital, where he survived 6 days but never regained consciousness. He died on February 26, 2007.
¶ 10 On cross-examination, Jason testified that she still works for respondent, which is now owned by decedent's wife. Jason testified that it was "questionable" as to whether the agency continued to be successful. Jason agreed that, as the owner, decedent could determine the hours he worked and was in charge of hiring, firing, and work load. Following his 1993 heart attack, decedent had open heart surgery—a quadruple bypass. He was treated by Dr. Humowiecki. Decedent took medication for his heart. In 2004, decedent experienced chest pains, but Jason did not recall him being hospitalized at that time. When decedent experienced a heart attack on February 20, 2007, he was working out on either a stair master or a treadmill.
¶ 11 Insurance premiums increased in 2006. This led to increased commissions for existing policies. Such changes are expected in the insurance business. On redirect-examination, Jason explained that increased premiums also resulted in policies leaving and fewer new policies being written. Jason added that they made less money compared to the previous year.
¶ 12 Barbara Carlini (claimant), decedent's wife, then testified. She and decedent were married on May 20, 1972. Decedent worked for respondent, which was an "S Corp." The office was in Melrose Park. Decedent had a heart attack in 1993, which led to a quadruple bypass. Following the heart attack, in accordance with Humowiecki's advice, decedent consumed a low fat diet and worked out regularly. In December 2006, claimant observed decedent pacing and eating chocolate. He was "edgy" and "quick to anger." This was unusual. When the errors and omissions claim was made against him, decedent was upset. She stated that "[h]is face looked cowed." His "shoulders were drooping" and he appeared "defeated." However, on Sundays, when spending time with his family, decedent appeared as though his "spirits were lifted." Decedent experienced no unusual events in his personal life from December 2006 to February 2007. In January 2007, claimant learned that the agency had failed to obtain the bonus it was trying to get. Claimant observed that decedent was stressed and anxious. As the owner, decedent could set his own hours and hire people.
¶ 13 On cross-examination, claimant testified that she was now "running" the insurance agency. She agreed that errors and omissions claims are part of the business; however, she could only recall the one from 2006 being filed against decedent. Decedent was on multiple medications since his first heart attack. Barbara filed an accident report in December 2007. On it, she stated that decedent was working out at the time of the 2007 heart attack.
¶ 14 Geralyn Nocita next testified for claimant. She is decedent's sister and has been employed by respondent for 15 years. In 2006 and 2007, respondent employed three people: decedent, Jason, and Nocita. In December 2006, an error and omissions claim had been filed by Faye Alcort. Such a claim had never been filed against respondent in the past. Decedent was very upset. Moreover, in January 2007, decedent learned that the agency did not qualify for a bonus that he had believed it had earned. Nocita observed decedent yelling at the district manager, which was unlike him. Away from work, decedent was relaxed.
¶ 15 Nocita was an agent. In 2006, they were writing fewer policies than usual. She explained that the cost of premiums had gone up. According to Nocita, the volume of policies was "down a lot."
¶ 16 Typically, decedent "watched what he ate." He did not eat junk food "at all." However, in December 2006, decedent was eating chocolate.
¶ 17 On cross-examination, Nocita stated she was a "co-producer." Decedent was the manager and could control his work schedule. The errors and omissions claim would have been covered by respondent's insurance. It would not have had a "significant financial impact on the company." On redirect-examination, Nocita testified that decedent was working longer hours in December 2006, as he was trying to attain the bonus.
¶ 18 Respondent then called T.J. McClure. McClure is an "agency development manager" for Farmers. In 2007, respondent had about 1,800 policies in place, which would put it in the top third of Farmer's agencies in the area. The contract under which decedent operated made him an independent contractor, who could run his agency as he saw fit.
¶ 19 Dr. Stephen Humowiecki testified via evidence deposition. He is board certified in family medicine. Decedent was one of his patients. He began treating decedent in 1993
following his first heart attack. According to Humowiecki, decedent had undergone a triple bypass (other testimony indicated that it was a quadruple bypass). Humowiecki saw decedent regularly over the next 14 years. A stress test in 2000 revealed no evidence of ischemia, nor did another stress test in June 2004. Anxiety was also an ongoing issue. Humowiecki referred decedent to a psychologist, who, in turn, referred him to a psychiatrist, due to decedent's "stress, anxiety and overeating." Humowiecki explained many people overeat in response to stress. A record from a visit on June 8, 2005, indicated that decedent was "very anxious on Mondays." This anxiety was connected to the commencement of the workweek. Humowiecki testified that stress is a "major factor in cardiovascular disease."
¶ 20 During a November 2006 visit, decedent reported that work was "very stressful and depressing." Decedent was "eating more and carelessly." Humowiecki attributed decedent's overeating to his stress level. Humowiecki examined decedent on December 26, 2006, and noted no evidence of ischemia. However, decedent was exhibiting signs of anxiety and depression, so Humowiecki increased the dosage of Wellbutrin he had prescribed to decedent. Humowiecki saw decedent a final time on February 14, 2007. He recorded decedent's blood pressure as 110 over 70, which he stated was "very good." He again noted no indication of ischemia. Decedent was drinking large quantities of Diet Coke, which Humowiecki understood to be the caffeinated variety. Humowiecki believed decedent's use of a treadmill at the health club may have precipitated his heart attack. He opined that stress was a major factor in decedent's atherosclerosis and the buildup of plaque in his arteries.
¶ 21 On cross-examination, Humowiecki acknowledged that he is not a cardiologist, a psychiatrist, or a psychologist. He agreed that decedent had a heart condition that pre-existed that 2007 heart attack. This placed decedent at a significant risk for another heart attack.
Humowiecki testified that intense physical stress could be dangerous to individuals with "severe preexisting coronary artery disease like" decedent. However, he also stated that "vigorous exercise" should be encouraged in individuals with heart disease. In decedent's case, as there was no evidence of ischemia, his 2007 heart attack was "most likely" the result of "plaque rupture." None of the history Humowiecki reviewed indicated that decedent underwent any "unusual work-related stressful events that triggered [his] heart attack." Humowiecki did not document particular examples of work stress in his records. He agreed that "stress is part of everyone's life" to some degree.
¶ 22 Dr. Richard A. Levy testified that he is board certified in cardiovascular disease and internal medicine. He reviewed decedent's records and death certificate. He also relied on the deposition of Humowiecki and statements from Jason, Barbara Carlini, and Nocita. Levy testified that responses to stress described by the witnesses were "associated with cortisol issues," which "causes acute triggering mechanisms," "weakens plaques," and potentially makes more plaque. Thus, Levy continued, "I believe that his stressors and his response to his stressors hastened the time where he was going to have a heart attack and/or fatal arrhythmia." He added, "I believe it was the trigger of the exercise right proximate to whatever was going on acutely or chronically in his life that was causing stress that would either make plaque somewhat unstable or change around his coagulation profile that—he had his heart attack at the time which he did." The stress decedent was under "made the plaques more likely to have a triggering event."
¶ 23 Dr. Dan Fintel next testified for respondent. He specializes in cardiovascular disease, nuclear cardiology, and internal medicine. He reviewed decedent's medical records on respondent's behalf. After his review, he authored a two-page report. Fintel testified that decedent "had very advanced ischemic coronary artery disease," for which he "had been
receiving excellent medical management" dating back to 1993. Fintel opined that decedent's fatal heart attack was caused by his "long-standing and advanced ischemic coronary artery disease." Fintel added that an "alternate explanation" was that decedent's heart attack was a "direct consequence of the exercise and his underlying coronary artery disease, although [Fintel believed] the former is more likely than the latter." He further opined that "work related activities were in no way a cause or contributor to the fatal arrhythmia that occurred during [decedent's] lunch hour." However, he later acknowledged that decedent's condition following his 1993 heart attack "set up a condition in which any kind of activity could have led to a fatal event." Fintel believed that the sort of stress decedent experienced was "normal workday stress" that did not rise to the level of the sort of stress necessary to cause a heart attack.
¶ 24 On cross-examination, Fintel acknowledged that chronic stress can elevate blood pressure and cholesterol levels. Further, both are "shown to be contributing factors to susceptibility to a heart attack." However, it has not been shown that "ordinary levels of stress increase the chance of a heart attack." Stress can change the way blood clots. Depending on the degree of stress, stress could be a contributing factor to a heart attack. Fintel admitted he never examined decedent, nor did he ever speak with any of decedent's coworkers or family members about decedent's work activities in the period leading up to his death. On redirect-examination, Fintel stated that the fact that decedent had a normal stress test in the years prior to his death did not change his opinion.
¶ 25 The arbitrator found that claimant failed to prove that decedent's heart attack arose out of and occurred in the course of his employment with respondent. He noted that "decedent was not at work nor was he working when his heart attack occurred and therefore, he did not sustain an accident in the course of his employment." Regarding stress, the arbitrator found that there was
no evidence that decedent was subject to "any unusual stress due to his work duties." Decedent's job was "not any more stressful than any other business." The arbitrator found claimant's theory that decedent's heart attack resulted from "fresh, unstable plaque" to be mere conjecture. He found that the opinions of Humowiecki and Levi were "not supported by competent medical evidence, findings or tests." The Commission adopted the decision of the arbitrator and affirmed. The circuit court confirmed the Commission, and this appeal followed.
¶ 26 III. ANALYSIS
¶ 27 Claimant raises two main issues on appeal. First, she contends that the Commission's decision that decedent did not suffer a work-related accident is against the manifest weight of the evidence. Second, she contends that several affidavits should be admitted as they form the basis of Levy's opinion. We disagree with both contentions. Claimant also makes a number of brief arguments as to what benefits she is entitled that is wholly derivative of her success on her first argument. As that argument fails, we need not address these additional points.
¶ 28 A. Whether Decedent Suffered a Work-Related Accident.
¶ 29 It is axiomatic that a claimant must prove the occurrence of an accident that arose out of and occurred in the course of employment. Illinois Bell Telephone Co. v. Industrial Comm'n, 131 Ill. 2d 478, 483 (1989). To succeed, a claimant must prove both of these elements. Id. This inquiry presents a question of fact for the Commission. Beattie v. Industrial Comm'n, 276 Ill. App. 3d 446, 449 (1995). Therefore, we will not reverse unless the Commission's decision is contrary to the manifest weight of the evidence. Ghere v. Industrial Comm'n, 278 Ill. App. 3d 840, 847 (1996). A decision is against the manifest weight of the evidence only if an opposite conclusion is clearly apparent. Id.
¶ 30 The arising-out-of element refers to a causal connection between an injury and some risk connected to a claimant's employment. Beattie, 276 Ill. App. 3d at 449. Whether an injury occurs in the course of employment is determined with reference to the "time, place and circumstances under which the accident occurred." Id. Of course, an employer takes an employee as the employer finds the employee, so the presence of a preexisting condition does not automatically defeat recovery under the Act. General Refractories v. Industrial Comm'n, 255 Ill. App. 3d 925, 930 (1994). We note that claimant has neither pleaded nor argued this case under a repetitive-trauma theory. See Peoria County Belwood Nursing Home v. Industrial Comm'n, 115 Ill. 2d 524 (1987); see also Durand v. Industrial Comm'n, 224 Ill. 2d 53 (2006).
¶ 31 In reviewing a factual decision of the Commission, we must remember that it is primarily for the Commission to resolve conflicts in the record, assign weight to evidence, assess the credibility of witness's testimony, and draw reasonable inference therefrom. Beattie, 276 Ill. App. 3d at 449. Furthermore, we owe particular deference to the Commission's resolution of medical issues, as the Commission's expertise in that arena is well recognized. Long v. Industrial Comm'n, 76 Ill. 2d 561, 566 (1979). Our inquiry concerns not whether some other tribunal might reach a different result, but whether there is sufficient evidence in the record to support the Commission's decision. Boatman v. Industrial Comm'n, 256 Ill. App. 3d 1070, 1072 (1993).
¶ 32 Here, there was clearly ample evidence to support the Commission's decision. It is undisputed that decedent was not at work at the time of his fatal heart attack; he was at the gym exercising. He also was not engaged in a work-related activity. On its face, it appears clear that claimant's heart attack did not occur in the course of employment. Dr. Fintel flatly testified that there was no relationship between decedent's employment and his February 2007 heart attack.
Claimant points to work stress in an attempt to tie decedent's heart attack to his employment. However, Fintel explained that the sort of stress decedent experienced in the course of his employment was not unusual and would not have contributed to his heart attack. Though there was testimony that decedent experienced higher degrees of stress on Mondays due to the commencement of the work week, his heart attack occurred on a Tuesday. Beyond this, while there was testimony of stressors occurring in the months leading to decedent's heart attack, nothing indicated decedent was under any unusual stress on the day it occurred.
¶ 33 Claimant contends that the Commission should have rejected Fintel's testimony and credited the testimony of Humowiecki and Levy. Claimant asserts that Fintel "did not attribute any part of the causation to [decedent's] work stress because he was unaware of [decedent's] work stress." Claimant continues, "Every physician aware of [decedent's] stress said in medical probability that it was a causative factor of [decedent's] myocardial infarction." (Emphasis omitted.) In support of Fintel's claimed lack of knowledge of decedent's stress, claimant cites a passage from Fintel's deposition where Fintel acknowledged that he did not speak with decedent's family members about the stress decedent was experiencing and that he did not review Humowiecki's deposition. This argument assumes that these sources were the only place Fintel could have learned of decedent's stress. However, Fintel did review Humowiecki's records. On cross-examination,, Fintel testified that he was aware that decedent reported to Humowiecki that "he was experiencing anxiety on Monday mornings." Fintel was also aware that decedent reported a lack of energy on Mondays. Moreover, Fintel was aware of decedent's overeating. Thus, Fintel was not as ignorant of decedent's exposure to work stress as claimant suggests. In any event, such a defect concerns the weight to which Fintel's opinion was entitled, which, as a medical question and an issue of fact, is something to which we owe great deference
to the Commission. See Long, 76 Ill. 2d at 566. We perceive nothing so inadequate in the basis of Fintel's opinion that the Commission's decision to accept it is contrary to the manifest weight of the evidence.
¶ 34 As for Levy and Humowiecki, the Commission found their opinions were not supported by "competent medical evidence, findings or tests." (Emphasis added.) The Commission's finding regarding the competency of the supporting evidence concerns the weight to which it is entitled, a matter primarily for the Commission. Beattie, 276 Ill. App. 3d at 449. Moreover, even if we were to disregard the Commission's rejection of the opinions of Levy and Humowiecki, this would merely create a conflict in the evidence between their testimony and that of Fintel (given that we found claimant's attack on Fintel's credibility lacking). Again, resolving such conflicts is a matter for the Commission in the first instance. Id. In short, we perceive nothing so compelling in the testimony of Levy and Humowiecki (even discounting the Commission's basis for rejecting their opinions) that we could say that the Commission's decision to accept Fintel's is against the manifest weight of the evidence.
¶ 35 In sum, there was evidence that decedent's work stress contributed to his heart attack. Then again, there was evidence that it did not. This is precisely the sort of question the Commission is routinely called upon to address, and we owe deference to its resolution of such medical issues (Long, 76 Ill. 2d at 566). Given the state of the record, we cannot say that an opposite conclusion to the Commission's is clearly apparent. Further, if decedent's work stress did not provide a relationship between his heart attack and his employment, we certainly could not say the Commission's determination that his heart attack did not occur in the course of employment is contrary to the manifest weight of the evidence (we further note the Commission discounted claimant's argument that decedent suffered from an unusual amount of stress,
finding: "There is no medical evidence that the decedent had any unusual stress due to his work duties" and that decedent's job was "not any more stressful than any other business." ). Quite simply, the heart attack occurred away from decedent's workplace while he was engaged in an activity unrelated to his job.
¶ 36 B. Statements and Affidavits
¶ 37 Claimant next argues that statements and affidavits of Nocita, Jason, and herself should be admitted into evidence as they formed the basis of Levy's opinions. Claimant's argument is that an expert may rely on data that is not in evidence. See Poelker v. Warrensburg Latham Community Unit School District Number 11, 251 Ill. App. 3d 270, 294-95 (1993); In re Marriage of Hunter, 223 Ill. App. 3d 947, 955 (1992). This is the extent of claimant's argument on this point. It is unclear to us how the fact that an expert may rely on data outside the record mandates that data's admission into evidence. Indeed, it would seem to make its admission immaterial, as the expert could rely on it regardless. Claimant makes no attempt to explain further, and we therefore find this argument unpersuasive.
¶ 38 IV. CONCLUSION
¶ 39 In light of the foregoing, the order of the trial court confirming the decision of the Commission is affirmed.
¶ 40 Affirmed.