{ "id": 2505745, "name": "MARION LUDWIG, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Ottawa Industrial Sand Company, Appellee)", "name_abbreviation": "Ludwig v. Industrial Commission", "decision_date": "1989-09-26", "docket_number": "No. 3\u201488\u20140852WC", "first_page": "729", "last_page": "736", "citations": [ { "type": "official", "cite": "192 Ill. App. 3d 729" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "398 N.E.2d 327", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "148 Ill. App. 3d 48", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3643890 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill-app-3d/148/0048-01" ] }, { "cite": "531 N.E.2d 379", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "176 Ill. App. 3d 545", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3589733 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/176/0545-01" ] } ], "analysis": { "cardinality": 742, "char_count": 16252, "ocr_confidence": 0.739, "pagerank": { "raw": 6.89516513629939e-08, "percentile": 0.4192952948222078 }, "sha256": "55d78b5a66ea05bff26e04f5432fe60dff20b4d0dccde2130e0bb9b6e8d7804c", "simhash": "1:ab87fd8f587b361a", "word_count": 2533 }, "last_updated": "2023-07-14T18:46:08.994081+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "MARION LUDWIG, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Ottawa Industrial Sand Company, Appellee)." ], "opinions": [ { "text": "JUSTICE McNAMARA\ndelivered the opinion of the court:\nPetitioner, Marion Ludwig, widow of the deceased employee Harold Ludwig, appeals from the Industrial Commission\u2019s (Commission\u2019s) denial of worker\u2019s compensation benefits for a fatal myocardial infarction decedent suffered allegedly as a result of his employment with respondent Ottawa Industrial Sand Company. An arbitrator found a causal connection between the death and the work activities and awarded petitioner $356.41 per week until the period of 20 years has passed, or until $250,000 has been paid, whichever is greater, plus medical and burial expenses, and $9,440 for attorney fees. The Commission set aside the award, finding that petitioner failed to prove a causal connection. The circuit court of La Salle County confirmed the Commission\u2019s decision. Petitioner appeals, contending that the Commission\u2019s finding of no causal connection is against the manifest weight of the evidence.\nDecedent worked as a maintenance foreman for respondent, where he had been employed for 25 years. Decedent\u2019s last day of work was September 10, 1983. He died of heart failure on the following day. No autopsy was performed.\nThree major issues arose: whether decedent suffered stress as a result of increased work pressures several months before his death; whether decedent suffered stress from unusually heavy physical exertions the day before his death; and whether petitioner proved causal connection between either type of stress and decedent\u2019s death.\nWitnesses for petitioner testified that from June through September 10, 1983, decedent carried extra responsibilities and suffered unusual stress at work.\nBob Savage, a co-worker, testified that during 1983 the maintenance employees had been doing more work with less manpower. Certain jobs had been eliminated, and the machinery broke down frequently. They were also short of men, especially during the week prior to decedent\u2019s death. Decedent had complained about these problems to Savage.\nRuss Myers, a co-worker, testified similarly. Decedent was pushing himself very hard and complained that there was too much work. Some days decedent tried to help Myers on physical jobs, but decedent would \u201cget real short winded and have to sit down.\u201d Myers saw such physical reactions once or twice a week.\nSteve Hicks, a co-worker, testified that in September 1983 there were shortages and equipment shutdowns. Moreover, decedent assumed additional responsibilities because the other foreman was on vacation.\nDonald Thompson, a maintenance clerk, gave a written statement to respondent that the week prior to his death, decedent was depressed and complained he did not feel he could do his job.\nPetitioner testified that her husband was often fatigued during the six months prior to his death and complained of insufficient manpower at work. He worked six or seven days a week and was called to work at odd hours a dozen times during the last six months of his life. In the six weeks before his death, decedent worked four Saturdays.\nWitnesses for respondent testified that from June through September 10, 1983, respondent\u2019s workload had not increased. David De-Coursey, a co-worker, testified that the work load in the maintenance department during the week prior to decedent\u2019s death was no different than it had been during the previous 13 years. David Kistenfeger, the supervisor of industrial relations, testified that there were more men working in September 1983 in relation to actual production than there were in 1985.\nWitnesses for petitioner testified that on September 10, 1983, the day before his death, decedent exerted unusual physical efforts at work when he used an 80-pound pry bar to work on a 200- to 400-pound pump.\nSavage testified that decedent showed an employee how to repair a pump, after which decedent sat down and said, \u201cThat\u2019s it, I can\u2019t do anymore.\u201d Decedent\u2019s face was drained of color, he was sweating, and his respiration was fast. Several months after decedent\u2019s death, Savage signed a statement written out by the personnel director stating that on September 10, decedent seemed relaxed and showed no discomfort after removing the plate from the pump.\nRod Miller, a general repairman, gave a written statement to respondent that decedent took the propeller out of the tank by himself on September 10 and that \u201che was grabbing hold of his chest that day and his breathing wasn\u2019t normal.\u201d\nJoe Harper, a general repairman, gave a statement to respondent that on the afternoon of September 10, decedent was sitting in the weld shop and said he didn\u2019t feel very well.\nPetitioner testified that on September 10, decedent came home from work and went right to bed, complaining of fatigue, pain in his stomach, and he had trouble catching his breath. He did not sleep well.\nThe September 11 emergency room report states that on that day decedent \u201ccollapsed at home after complaining of chest pain\u201d and that he asked petitioner to call the rescue squad. Decedent died within an hour. The death certificate states that the cause of death was cardiopulmonary arrest due to acute arteriosclerotic heart disease.\nAccording to the medical records, decedent suffered from several preexisting conditions. In 1971 he was hospitalized for coughing blood. In 1979, he was hospitalized for chest and arm pain and was diagnosed as having angina pectoris. In 1980, he saw Dr. Ghafoor for skipping heart beats. He also suffered from hypertension and had heart disease risk factors of cigarette smoking and a family history of heart disease. On September 7, 1983, decedent saw Dr. Ghafoor and complained of pain in his upper abdomen and lower chest, an irregular heart beat, and coughing up blood. Decedent declined Dr. Ghafoor\u2019s recommendation that he be hospitalized for bronchial tests. Decedent also suffered from colon polyps and silicosis. There was no testimony that any of these factors alone caused his death, and many of the conditions were ruled out by all the doctors as having any possible connection with the cause of death.\nIn regard to causal connection, Dr. Robert Bettasso, a general surgeon, testified as an expert for petitioner that decedent\u2019s death was in part precipitated by the stressful work situation during the several months before his death, or by the reported physical exertions on September 10, 1983. Both the physical and the mental stress could cause myocardial infarct.\nDr. Albert O\u2019Berto, a surgeon and petitioner\u2019s family doctor, testified similarly for petitioner. He stated that the months of stress and the September 10 incident could contribute to the myocardial infarction. Decedent had been under stress. The physical stress was the most obvious.\nDr. Louis McKeever testified as an expert for respondent regarding causal connection. He found the employment was not a \u201cdirect\u201d cause of death because of the delay of one day between work and death. He also stated, however, that it is possible to suffer infarction one day and have the pain go away for some time. Dr. McKeever testified that the additional months of stress at work did not contribute to the heart problem because decedent had been doing the same basic job for many years. However, Dr. McKeever also testified that anxiety, frustration and emotional stress in the work environment could create an extra load on the heart.\nPetitioner contends that the Commission\u2019s finding of no causal connection between decedent\u2019s death and his employment is against the manifest weight of the evidence.\nThe question of causal connection is one within the unique province of the Industrial Commission, and we will not disturb its finding unless it is contrary to the manifest weight of the evidence. Cook v. Industrial Comm\u2019n (1988), 176 Ill. App. 3d 545, 531 N.E.2d 379.\nThe Commission found it particularly significant that Savage was impeached \u201cby his statement three months after the alleged accident that Decedent was more relaxed that day than he had been previously and that he showed no sign of discomfort after knocking the plate off the pump. The Commission finds that Savage\u2019s testimony lacked credibility and that Petitioner failed to prove an onset of symptoms associated with Decedent\u2019s activities on September 10,1983.\u201d\nQuestions regarding a witness\u2019 credibility are generally left to the Commission to resolve. However, Savage was never impeached regarding the additional physical activities decedent performed the day before he died. In both statements, Savage said decedent exerted physical effort in removing the plate from the 200-pound pump. Thus the Commission\u2019s characterization of the impeachment is not quite accurate. The key fact was not impeached.\nMore importantly, several witnesses testified without contradiction that decedent performed this task on September 10, one day before his death.\nThe Commission also states that because of Savage\u2019s impeachment, petitioner failed to show an \u201cimmediate *** onset of symptoms after the September 10 exertion.\u201d\nSeveral witnesses supported Savage\u2019s later statement that decedent showed signs of ill-health on September 10 and that decedent did heavy physical work that day. Harper described decedent\u2019s ill-health that afternoon. Miller described decedent\u2019s heavy work and stated that decedent was grabbing his chest and that his breathing was not normal. Savage consistently stated that decedent performed heavy work that day. Petitioner testified to decedent\u2019s problems with fatigue, stomach pain and breathing problems immediately upon arriving home from work September 10.\nThe Commission rejected the opinions on causal connection offered by petitioner\u2019s two medical experts and adopted \u201cDr. McKeever\u2019s opinion that Decedent\u2019s death could not be related to his employment\u201d because, according to Dr. McKeever, the onset of symptoms was neither \u201cimmediate\u201d nor \u201ccontinuous.\u201d\nThe evidence, however, even absent Savage\u2019s testimony, demonstrated that decedent had performed heavy exertion and was sick immediately on September 10. Regarding causation, Dr. O\u2019Berto testified for petitioner that the September 10 incident was the \u201cmost obvious\u201d factor of stress contributing to the cause of death. Dr. O\u2019Berto also testified that 48 hours could pass before the full extent of the infarct became apparent, depending on the degree of damage caused by the initial physical stress. Dr. Bettasso testified for petitioner that the September 10 physical stress could be a precipitating factor for acute myocardial infarction. Dr. Bettasso testified further that the cardiac disease is a process. For example, physical exertion could be a precipitating factor of acute myocardial infarction before the patient is aware of it. There could be a day between the stress and the rhythm disturbance. An EKG might not even manifest the infarct for one to three days.\nDr. McKeever offered self-contradictory testimony regarding whether an \u201cimmediate\u201d onset of symptoms was necessary to show a causal connection to the cardiac arrest the next day. He first testified that it could not take 18 to 24 hours for infarctions to fully demonstrate themselves. \u201cIf there are [such infarctions], I don\u2019t know about them.\u201d Dr. McKeever went on to state on cross-examination, however, that the symptomatology could be periodic. \u201cRight. That is possible. He could have an infarction the day before, the pain goes on away and he goes about his business and then \u2014 .\u201d Dr. McKeever testified that such physical exertion followed by chest pains and fatigue which persisted to the next day \u201cwould qualify for being very suspicious of being an infarction.\u201d\nThe Commission also found that petitioner failed to prove her alternative contention that the recent increase in work was a contributing causative factor in decedent\u2019s death. Actually, all three physicians stated that the stressful work situation could have contributed to decedent\u2019s death. Dr. Bettasso noted decedent\u2019s \u201cantecedent history of decreased work tolerance,\u201d which can be a \u201cprecipitating factor of pre-existing disease.\u201d Dr. O\u2019Berto stated that decedent\u2019s recent months at work showed \u201cthis man has been under stress,\u201d and that the stress contributed to the cause of death.\nDr. McKeever initially testified that \u201cit would be unlikely that the employment would be a direct cause of the death, being that the event occurred several hours to days since his last \u2014 since he was working.\u201d Dr. McKeever explained that he believed \u201c25 years of working in the same business doing relatively the same job in the same environment can no longer be considered an unusual event in that particular individual, and therefore, would not be a stressful situation. It is what he does everyday.\u201d However, Dr. McKeever also testified that anxiety, frustration and emotional stress in the work environment could create an extra load on the heart.\nQuestions regarding contradictions in testimony are generally left to the Commission to resolve. However, notwithstanding Dr. MeKeever\u2019s contradictory testimony, all three doctors stated that the long-term stress at work could contribute to the cause of death here.\nWe conclude that the Commission\u2019s finding of no causal connection, either because there was no emotional stress at work, or because there was no \u201cimmediate\u201d or \u201ccontinuous\u201d onset of symptoms between September 10 and 11, is against the manifest weight of the evidence.\nWe also note the Commission\u2019s reference to decedent\u2019s preexisting conditions. Clearly, decedent suffered from heart-related and other health problems for some time before his death. The week prior to his death he evidenced numerous symptoms of ill-being which the physicians believed could be indicators of cardiac disease. However, an autopsy was not performed, and therefore, none of the doctors could determine precisely whether, e.g., the prior bronchial or heart rhythm problems in any way contributed to the ultimate failure of the heart to function. Moreover, Dr. McKeever testified that the bronchial testing Dr. Ghafoor wished to perform in the hospital several days before decedent died was unrelated to heart disease. Thus, this basis of the Commission\u2019s decision is unsupported by the evidence.\nIn addition, a preexisting heart condition does not preclude an award under the Worker\u2019s Compensation Act (Ill. Rev. Stat. 1985, ch. 48, par. 138.1 et seq.). (Northern Illinois Gas Co. v. Industrial Comm\u2019n (1986), 148 Ill. App. 3d 48, 398 N.E.2d 327.) It is only necessary to show that the stress of the employee\u2019s work was one causative factor and need not exclude every other possible contributing factor. (Northern Illinois Gas Co. v. Industrial Comm\u2019n (1986), 148 Ill. App. 3d 48, 398 N.E.2d 327.) Thus, the Commission\u2019s finding of a preexisting condition certainly does not preclude an award.\nWe also must comment on the Commission\u2019s statement that petitioner\u2019s alternative theory was that decedent died partially as the result of silicosis. Petitioner maintains that \u201cSilicosis is not an issue in this case ***.\u201d The record supports petitioner\u2019s view. Petitioner merely asked the treating physicians during depositions about the diagnosis of silicosis and whether it contributed in any way to the heart condition along with the job-related stress. Dr. Sanford Rabushka testified at a deposition for petitioner that the condition had been diagnosed from chest X rays, but petitioner never offered that deposition. Instead, respondent later offered the deposition despite petitioner\u2019s failure to adopt the theory.\nFor the foregoing reasons, the judgment of the circuit court of La Salle County, confirming the decision of the Industrial Commission, is reversed, and the cause is remanded for further proceedings consistent with the views expressed herein.\nReversed and remanded.\nBARRY, P.J., and WOODWARD, McCULLOUGH and LEWIS, JJ., concur.", "type": "majority", "author": "JUSTICE McNAMARA" } ], "attorneys": [ "Mark A. Schindler and Peter F. Ferracuti, both of Law Offices of Peter F. Ferracuti, P.C., of Ottawa, for appellant.", "Michael E. Rusin, of Stevenson, Rusin & Friedman, Ltd., of Chicago, for appellee." ], "corrections": "", "head_matter": "MARION LUDWIG, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Ottawa Industrial Sand Company, Appellee).\nThird District (Industrial Commission Division)\nNo. 3\u201488\u20140852WC\nOpinion filed September 26, 1989.\nRehearing denied February 5, 1990.\nMark A. Schindler and Peter F. Ferracuti, both of Law Offices of Peter F. Ferracuti, P.C., of Ottawa, for appellant.\nMichael E. Rusin, of Stevenson, Rusin & Friedman, Ltd., of Chicago, for appellee." }, "file_name": "0729-01", "first_page_order": 751, "last_page_order": 758 }