by Craig D. Hasenbalg (Winter 2018)
Section 6(f) of the Illinois Workers’ Compensation Act creates a rebuttable presumption that a firefighter, EMT or paramedic suffering any condition or impairment of health resulting directly or indirectly from any blood-borne pathogen, lung or respiratory disease or condition, heart or vascular disease or condition, hypertension, tuberculosis, or cancer resulting in any disability, arose out of and in the course of the employee’s firefighting, EMT, or paramedic employment. In Johnston v. Illinois Workers’ Compensation Commission, 2017 IL App (2d) 160010WC, the Illinois Appellate Court had an opportunity to determine what amount of evidence the employer must present in order to rebut that presumption. In a decision with one dissent, a panel of Illinois Appellate Court judges held that the answer to that question is: “not much”.
In Johnston, the claimant was a firefighter working for the East Dundee Fire Protection District. The claimant testified that he had smoked one to one and a half packs of cigarettes per day since the 1990s, and in February of 2014, he weighed 265 lbs. and stood 6’1” tall. On the morning of February 5, 2014, the claimant arrived at work just before the start of his 6:00 a.m. shift. On snowy mornings, the claimant testified that he parked his diesel pick-up truck next to the fire department’s back garage, so he could plug the truck’s engine block heater into an available electrical outlet. The morning of February 5th was no different.
At the arbitration hearing, the claimant indicated he had no memory of the events of February 5, 2014. His last memory was talking to one of the firefighters who was going off duty. After that, the claimant’s only memory was of waking up in the hospital.
Other testimony completed the picture. Shortly after talking to a lieutenant who was going off duty, the claimant proceeded outside to shovel snow. Shortly thereafter, others noticed the claimant laying face-down outside, and rushed to his side to render life-saving assistance. Testimony later revealed that the claimant had suffered a heart attack. The claimant filed under the Act that he suffered personal injuries while shoveling snow in the fire department’s parking lot.
Part of the claimant’s claim relied on the presumption arising under § 6(f) of the Act, and it was uncontested that the presumption applied. Therefore, the claimant argued that his heart disease or heart condition was rebuttably presumed to have been caused by the claimant’s employment as a firefighter, entitling him to compensation for his injuries.
However, first the Illinois Workers’ Compensation Commission, and then the circuit and appellate courts told the claimant, “not so fast.” The claimant’s claim was rejected because the presumption is rebuttable, and the court held that the employer had successfully rebutted the presumption. The presumption, according to the appellate court, burst like a bubble.
The court began its analysis by discussing the amount of evidence that the employer must present in order for the presumption to be properly rebutted. The court discussed two alternatives. On the one hand, the court first discussed a “clear and convincing evidence” standard which would have required the employer to make a “strong” showing that the presumed fact did not exist. The second alternative was to apply a less stringent evidentiary showing, where the employer must simply provide “some evidence” that the presumed fact does not exist.
The court turned to the legislative history behind §6(f) of the Act, and held that the “some evidence” standard should apply. In Johnston, not only was the employer able to point to the claimant’s long-term smoking habit, but also his “obesity,” to rebut the presumption. More effective, however, was the employer’s expert, who provided his opinion that the claimant’s work as a firefighter was not the cause of his underlying coronary artery disease. Even if the claimant had been performing another job, he would still have experienced progressive and life-threatening coronary disease. In other words, the employer’s expert witness testified that the claimant’s unhealthy lifestyle was the cause of the heart condition that led to the claimant’s injuries. This was deemed by the court to satisfy the “some evidence” standard, and the presumption was thus rebutted.
The dissent raised two issues which may be addressed in future cases. First, the dissent criticized the majority’s analysis of the legislative history of §6(f). The majority quoted from only one legislator, and, according to the dissent, statements solely from the bill’s sponsor can hardly be considered a full and complete analysis of legislative history. Second, the dissent argued that before the opinion of the employer’s expert should be accepted, the employer should have provided evidence to specifically disprove that the claimant’s employment as a firefighter caused his heart condition. In Johnston, because the expert admitted that the claimant’s employment could be a factor giving rise to the claimant’s coronary artery condition, the dissenting justice argued that the presumption still applied.
It is unlikely — in the short term at least — the dissent’s argument will be successfully resurrected. Only time will tell if the evidentiary argument has been permanently laid to rest.