In an astounding development to all Illinois workers' compensation observers, a majority of the members of our very, very, very liberal Appellate Court, Workers’ Comp Division, joins with the Illinois Workers' Compensation Commission and lower court to deny a claim by an firefighter.

Eugene Keefe

In Johnston v. Illinois Workers' Compensation Commission, the Illinois Appellate Court, WC Division, in a 4-1 decision, agreed that a firefighter described as "a heart attack waiting to happen" should not receive workers' compensation benefits for a heart attack sustained simply cleaning his firehouse parking spot of snow.

The Appellate Court's opinion affirmed decisions by an arbitrator, the Workers' Compensation Commission and Judge David Akemann from the Circuit Court of Kane County. All agreed that claimant Kevin Johnston, age 46, had so many risk factors for a heart attack, his cardiac event could have occurred "anytime and anywhere," as the arbitrator described it. Those risk factors were enough to overcome Illinois' statutory presumption that all heart attacks suffered by firefighters at any time are a compensable injury.

The facts and expert opinions in this ruling are a solid outline of how to best defend any Illinois WC heart attack/stroke/death claim whether it involves a firefighter, or any worker. 

Johnston had worked for the East Dundee Fire Protection District for 15 years when he went into work on a 15-degree day in February 2014. A heavy smoker who often brought high cholesterol/salt fast food into work, the 6-feet 1-inch, 265-pound Johnston was in the process of attempting to get healthier. A month before, he had switched to e-cigarettes after 20 continuous years of smoking a pack a day. 

It snowed in East Dundee the night before, so after talking with a coworker in the firehouse, Johnston went to clean the area around his car. A coworker found him lying in the snow about 10 minutes later. Within minutes, a team of coworkers performed chest compressions and strapped Johnston to a backboard, using a defibrillator to revive him. They drove him to the hospital in an ambulance. The next day, he underwent emergency quadruple bypass surgery and survived the event.

Two weeks later, Johnston applied for workers' compensation benefits. The East Dundee Fire Protection District denied his application, and the matter went to an arbitration hearing five months later. At the hearing, four of Johnston's coworkers testified, making note that Johnston smoked "quite a bit" and was "not the healthiest eater." Two physicians submitted testimony as well: one who treated Johnston, and the other who examined him at his employer's request.

Johnston's treating physician, cardiologist Dr. Christopher Berry, testified that he had counseled Johnston on how to live a healthier life and told him he had coronary artery disease. Dr. Berry testified that Johnston's 15 years as a firefighter could be "considered a risk factor" for coronary artery disease.

Johnston had additional risk factors: obesity, a family history of coronary artery disease and a history of smoking. There was evidence that Johnston was "mildly diabetic" due to his habitus as well, Johnston noted.

Clearing snow could trigger cardiac arrest in a person with arteries as blocked as Johnston's, Dr. Berry testified, but at that point, it would be just as likely that a heart attack would occur at rest or doing just about anything.

Dr. Dan Fintel, the defense cardiologist who examined Johnston at his employer's request, said simply walking into the cold outdoors could have triggered the firefighter's heart attack.

"Any activity on a day in which the ambient temperature was 15 degrees in a cardiac patient can be life threatening or life ending," Fintel testified. Asked whether working as a firefighter was a risk factor for coronary artery disease, Fintel said it could be. Since he did not have access to evidence indicating how often Johnston was exposed to smoke, Fintel could not say for sure.

As we indicate above, the arbitrator considered all evidence and denied the claim. Johnston "was a heart attack waiting to happen, and his employment activities neither aggravated nor accelerated his already severe and highly advanced coronary artery disease," the arbitrator wrote.

The Workers' Compensation Commission panel affirmed and adopted the arbitrator's opinion. Circuit Court Judge Dave Akemann, who was an IWCC hearing officer earlier in his career, confirmed the decision.

On appeal, Johnston attempted to persuade the Appellate Court that the IWCC's finding was contrary to the "manifest weight of the evidence."

Please note that Illinois law has a presumption that cardiac issues for a firefighter with five years of service are compensable. I don’t agree with the basis for the “firefighter’s presumption,” but the law is the law.

My problem with the firefighter’s presumption is the urban legend or myth that all firefighters are surrounded by and breathe clouds of smoke at work every day of every year. In my opinion, very few firefighters actually breathe smoke during regular work that usually involves more medical calls than live firefighting.

In this claim, I would assume the petitioner's attorney would have introduced evidence of exposure to smoke during live fires, if they had such evidence. The dearth of testimony/evidence of Johnston's exposure to smoke from a live fire jumps out at anyone reviewing the ruling. What rhymes with “breathing equipment” that protects firefighters from the smoke at the occasional live fire?

Therefore, the Appellate Court first had to consider whether the East Dundee Fire Protection District presented enough evidence to prove Johnston's coronary artery disease was not linked to work, thus rebutting the presumption in Illinois law that firefighters' heart conditions are compensable. After considering the simple facts, and Dr. Berry and Dr. Fintel's expert testimony, the court decided that the district presented enough evidence to rebut the presumption. 

I salute the four members of the Appellate Court for writing an excellent and well-reasoned ruling that makes enormous common- and legal sense to me.

Justice William E. Holdridge, who we thought of as being from Republican roots in Peoria, dissented in a ruling we feel is about as liberal/radical as any WC justice could write. Justice Holdridge thought Dr. Fintel's opinion was insufficient to rebut the presumption.

"Even assuming … that the claimant's coronary artery condition was initially triggered solely by personal risk factors such as smoking and obesity (which is not clear from the evidence), Dr. Fintel lacked sufficient information to conclude that the claimant's condition was not aggravated or accelerated by his occupational exposure to smoke and fumes," Holdridge wrote in his sole dissenting opinion.

We agree with other court watchers who have been quoted to say that if you follow Justice Holdridge’s logic, it would be virtually impossible to ever overcome the firefighter’s presumption. In my view, Justice Holdridge will never deny a claim by a firefighter, regardless of whether all of the other nine hearing officers, including the arbitrator, IWCC panel, Circuit Court judge and the other four justices disagree.

Eugene Keefe is a founding partner of Keefe, Campbell, Biery and Associates, a Chicago-based workers' compensation defense firm. This column was reprinted with his permission from the firm's client newsletter.