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                                 Appellate Court                        Date: 2017.08.14
                                                                        09:44:05 -05'00'




    Johnston v. Illinois Workers’ Compensation Comm’n, 2017 IL App (2d) 160010WC



Appellate Court      KEVIN JOHNSTON, Appellant, v. THE ILLINOIS WORKERS’
Caption              COMPENSATION COMMISSION (The East Dundee Fire Protection
                     District, Appellee).



District & No.       Second District
                     Docket No. 2-16-0010WC


Filed                April 13, 2017
Rehearing denied     June 12, 2017



Decision Under       Appeal from the Circuit Court of Kane County, No. 15-MR-736; the
Review               Hon. David R. Akemann, Judge, presiding.



Judgment             Affirmed in part and vacated in part.


Counsel on           Timothy D. O’Neil, of Foote Mielke Chavez & O’Neil, LLC, of
Appeal               Geneva, for appellant.

                     William B. Isaly, of Ancel Glink Diamond Bush DiCianni &
                     Krafthefer, PC, of Naperville, for appellee.



Panel                JUSTICE HARRIS delivered the judgment of the court, with opinion.
                     Justices Hoffman, Hudson, and Moore concurred in the judgment and
                     opinion.
                     Presiding Justice Holdridge dissented, with opinion.
                                              OPINION

¶1       On February 25, 2014, claimant, Kevin Johnston, filed an application for adjustment of
     claim pursuant to the Illinois Workers’ Compensation Act (Act) (820 ILCS 305/1 to 30
     (West 2012)), seeking benefits from the East Dundee Fire Protection District (employer). He
     alleged he suffered injuries to his person “while shoveling snow in [the] fire department
     parking lot.” Following a hearing, the arbitrator denied benefits under the Act, finding the
     employer had successfully rebutted the presumption under section 6(f) of the Act (820 ILCS
     305/6(f) (West 2012)) that claimant’s heart or vascular disease or condition arose out of his
     employment as a firefighter and, further, that claimant did not suffer accidental injuries that
     arose out of his employment nor was his current condition of ill-being causally related to the
     alleged accident. On review, the Illinois Workers’ Compensation Commission (Commission)
     affirmed and adopted the arbitrator’s decision. On judicial review, the circuit court of Kane
     County confirmed the Commission’s decision.
¶2       On appeal, claimant asserts that the Commission erred in finding the employer had
     successfully rebutted the statutory presumption found in section 6(f) of the Act. In the
     alternative, claimant contends that the Commission’s finding his heart attack did not arise out
     of and was not causally related to a work accident was against the manifest weight of the
     evidence. We affirm in part and vacate in part.

¶3                                         I. BACKGROUND
¶4       The following evidence relevant to this appeal was elicited at the July 14, 2014,
     arbitration hearing.
¶5       Claimant testified he was 43 years old and had been employed by the employer as a
     full-time firefighter, in various ranks, since 1999, most recently as a lieutenant. As a full-duty
     firefighter, claimant worked shifts of 24 hours on and 48 hours off, with each 24-hour shift
     beginning and ending at 6 a.m. Claimant explained that regardless of his rank, he always had
     full firefighter duties which included “responding on calls, dealing with structure fires,
     ceiling detectors, fire alarms[,] *** auto accidents, patient care, [and] mitigating the
     hazards.”
¶6       Claimant denied any knowledge of having a heart condition, heart disease, or
     hypertension prior to February 5, 2014. He testified that he smoked 1 to 1½ packs of
     cigarettes per day since the 1990s, but in January 2014, he started smoking an electronic
     cigarette, which uses liquid nicotine, in an attempt to quit smoking. In February 2014,
     claimant weighed approximately 265 pounds and stood six feet, one inch, tall.
¶7       Claimant testified he drove a diesel pickup truck as his personal vehicle and, in the
     winter, he parked his truck next to the fire department’s “back garage” so he could plug the
     truck’s engine block heater into an electrical outlet. If a parking spot next to the garage was
     not available when he arrived at work, he would park wherever a spot was available, and
     once a spot opened up by the garage, he would move his truck.
¶8       Claimant further testified that when snow was on the ground, the firefighters on duty
     would remove the snow from the sidewalks, parking lot, and driveway with shovels and
     snowblowers, which were provided by the employer and stored in the fire department’s



                                                 -2-
       garage. According to claimant, it was not uncommon for him to clear snow by himself,
       although often a group of firefighters worked together to clear the snow.
¶9          Claimant testified he reported to work shortly before 6 a.m. on the morning of February
       5, 2014. He could not recall what the weather was like that morning. His last memory prior to
       suffering a heart attack that morning and waking up in the hospital was “talking to one of the
       guys that was coming off shortly after I got in.” He did not recall using a snowblower or a
       shovel to clear snow that morning. He admitted he could have gone outside to smoke a
       cigarette that morning, but he could not recall that either.
¶ 10        Claimant underwent emergency quadruple bypass surgery on February 6, 2014. At the
       time of the arbitration hearing, claimant had just finished 12 weeks of cardiac rehab. He had
       not yet been released to return to work.
¶ 11        The evidence depositions of four fellow firefighters, Tyler Burd, Ashley Rebou, Jeremy
       Schwab, and Kanen Terry were introduced into evidence.
¶ 12        Tyler Burd testified he worked for the employer as a firefighter and emergency medical
       technician (EMT). According to Burd, on the morning of February 5, 2014, claimant walked
       into the fire station “around 5:59” a.m., which was “unusually late for him.” Burd stated that
       upon entering the building, claimant walked past him on the main floor and proceeded
       upstairs to the dayroom where he sat down and spoke with Lieutenant Parthun for “about half
       an hour or so.” Burd testified that after the two had finished their conversation, Lieutenant
       Parthun told Burd that claimant “was going outside to shovel around his car.” According to
       Burd, there was approximately three to four inches of snow on the ground that morning.
       Approximately 10 minutes after Lieutenant Parthun had mentioned claimant was going
       outside to shovel snow, Burd looked out the back door and saw claimant lying facedown at
       the south end of the garage. He ran over to claimant, rolled him over, and found he did not
       have a carotid pulse, so he ran inside to call for help and then returned to claimant. Burd
       testified that Schwab and Rebou rushed out. As Rebou started compressions, Burd ran back
       inside to get Lieutenant Parthun. Within a few minutes, they had claimant on a backboard
       and took him into the building where they used a defibrillator and “[b]rought him back to
       life.” They then put claimant in an ambulance and transported him to the hospital. According
       to Burd, “[t]here was a lot of snow on the ground, so it was a very slow ride” to the hospital.
¶ 13        Burd did not recall hearing a snowblower on the morning of February 5, 2014, but he
       recalled having seen a snowblower in front of the garage, which was approximately five to
       six feet from claimant’s body. The snowblower had been removed from the garage, and the
       garage door was closed. Burd recalled seeing claimant’s truck and testified that the snow
       around the truck had been cleared. Burd acknowledged that the spot would have been empty
       of snow if another vehicle had been parked there overnight. Burd testified that snow removal
       was regularly done by the firefighters and that “[i]f there’s snow on the ground, we removed
       it.”
¶ 14        Burd further testified he knew claimant smoked “quite a bit” or “at least two packs a
       day.” According to Burd, claimant would typically smoke out by the garage. He also testified
       that claimant was “not the healthiest eater,” as he often observed him eating fast food.
¶ 15        Ashley Rebou testified she worked for the employer as a firefighter/paramedic. She was
       working on the morning of February 5, 2014, and was in the dayroom when claimant came
       in. According to Rebou, claimant “just sat down” and “[d]idn’t say anything,” which was
       unusual, but then she got up and went downstairs to check her “rig” while claimant and

                                                  -3-
       Lieutenant Parthun talked. Shortly thereafter, while she and other firefighters were in the
       main ambulance, claimant walked past them and went outside. Lieutenant Parthun stopped to
       talk and told them that claimant “was going out to shovel or get the snow out of his parking
       spot.” Rebou testified that a little later Schwab came in and told them that claimant “was
       down,” so she went outside, checked for a pulse, and started compressions. They later moved
       him inside. According to Rebou, while outside, she observed a snowblower in front of the
       garage door, approximately two to three feet from claimant’s body.
¶ 16       Jeremy Schwab testified that, on February 5, 2014, he was working for the employer as a
       firefighter/paramedic. He recalled that claimant arrived to work at 5:59 a.m. He stated it was
       unusual for claimant to arrive so late. He observed claimant come into the dayroom, and
       without saying anything to anyone, he “flopped into the recliner as if something—something
       was off.” Schwab stated that around 6:30 or 6:45 a.m., he heard claimant “was outside snow
       blowing.” Shortly thereafter, he responded to Burd’s call for assistance and saw claimant
       facedown in the snow. Schwab recalled seeing a snowblower and testified there was one to
       three inches of snow on the ground.
¶ 17       Kanen Terry testified he worked for the employer as a firefighter/paramedic. He recalled
       that claimant arrived to work at approximately 6 a.m. on the morning of February 5, 2014.
       According to Terry, this was unusually late for claimant, but he stated there was four to six
       inches of snow on the ground that morning. Later, as Terry was checking the rigs, Schwab
       ran in and said “[claimant] is down” or “[claimant] coded.” Terry testified he went outside
       and saw claimant on the ground with Rebou “hovering” over him. He then assisted in the
       resuscitation efforts. Terry did not recall seeing a snowblower or a shovel near claimant’s
       body. However, he did observe that the parking spot where claimant’s truck was parked was
       clear of snow “from line to line,” and it looked like someone had removed the snow.
¶ 18       Dr. Christopher Berry, a board certified interventional cardiologist, testified by way of
       evidence deposition. Dr. Berry first saw claimant on February 8, 2014. He treated claimant
       postoperatively, managing his cardiac arrhythmia and counseling him on lifestyle
       modifications, including weight loss, smoking cessation, and diet. According to Dr. Berry,
       claimant suffered a myocardial infarction of the “demand-related ischemia” type, meaning
       that “he had severe preexisting coronary artery disease which was aggravated by the activity
       he was performing.”
¶ 19       Dr. Berry testified that, based on his limited research regarding coronary heart disease
       and its relation to a firefighter’s occupational exposure, there appeared to be “an association
       of cardiac events in firemen that is above and beyond that which would be expected of
       age-matched controls.” Thus, he opined that occupational exposure as a firefighter “can be
       considered a risk factor” for coronary artery disease. Dr. Berry further testified that claimant
       suffered additional risk factors for coronary artery disease, including obesity, a family history
       of coronary artery disease, and a history of smoking. Dr. Berry also stated there was some
       evidence that claimant was “mildly diabetic” as well. Regarding claimant’s smoking, Dr.
       Berry was unable to recall how many packs of cigarettes per day, or for how long, claimant
       had smoked.
¶ 20       In Dr. Berry’s opinion, an activity, such as snow removal, could trigger a cardiac
       arrhythmia in a person who suffered from blocked or partially blocked arteries like claimant.
       However, he stated that acute myocardial infarction does not necessarily have to be provoked
       by activity and that claimant could have suffered the same ischemic event at rest.

                                                   -4-
¶ 21        Dr. Dan Fintel, a board certified physician in internal medicine, cardiovascular diseases,
       critical care medicine, and nuclear cardiology, examined claimant in April 2014 at the
       employer’s request. Dr. Fintel performed a physical examination of claimant and reviewed
       claimant’s medical records. According to Dr. Fintel, claimant reported having no memory of
       the events leading up to his cardiac arrest, which Dr. Fintel explained was “very common.”
       Dr. Fintel testified claimant suffered from preexisting undiagnosed severe triple vessel
       coronary disease and the ischemic event experienced by claimant on February 5, 2014, could
       have been caused by claimant’s exposure to cold air alone, regardless of whether he shoveled
       any snow. Dr. Fintel noted “that any activity on a day in which the ambient temperature was
       15 degrees in a cardiac patient can be life threatening or life ending.” In addition, based on
       his review of claimant’s medical records, Dr. Fintel believed claimant had suffered a cardiac
       event, or a silent heart attack, prior to February 5, 2014, of which claimant may not have
       been aware of.
¶ 22        Dr. Fintel was asked his opinion “as to might or could the ingestion of heightened levels
       of nicotine delivered by an e-cigarette cause a heart attack in a person with [claimant’s]
       cardiac profile.” He responded that “there is emerging evidence that the nicotine in
       e-cigarettes, similar to the nicotine in conventional cigarettes, can cause cardiac problems in
       patients.” Dr. Fintel further testified that, in the course of his examination, claimant was
       unable to describe specific dates or days in which he was exposed to smoke, gases, or
       materials of combustion due to fighting fires. In Dr. Fintel’s opinion, the medical treatment
       claimant received following the February 5, 2014, ischemic event was causally connected to
       his severe underlying preexisting triple vessel coronary artery disease.
¶ 23        On cross-examination, Dr. Fintel testified that he did not know the dosage of nicotine that
       claimant was using in his e-cigarette and that it was “speculation as to the impact, if any, of
       the e-cigarette on the event of February 5, 2014.” Dr. Fintel further testified he was unaware
       of any significance between claimant’s occupation, which required him to respond to an
       average of “300 calls per year,” and his coronary artery disease because Dr. Fintel was
       “unaware of what extent of smoke exposure [claimant] had in [his] fire suppression
       activities.” However, Dr. Fintel acknowledged the existence of a body of literature that has
       found an increased risk of coronary artery disease in firefighters. Dr. Fintel further testified
       that claimant had other risk factors for developing coronary artery disease, including a
       20-year smoking history, which he felt was “probably the major cause chronically of
       developing advanced atherosclerosis,” and a family history of heart disease. In Dr. Fintel’s
       opinion, “[w]orking as a fireman is not considered to be a regular risk factor for coronary
       artery disease. It depends on occupational exposure and data that I don’t have available to
       me.” He continued, “[i]t could be a risk factor based on what his occupational exposure was,
       but it is not definitely a risk factor.”
¶ 24        Dr. Fintel also authored a report in which he opined that “[claimant’s] vocational duties
       did not cause the underlying disease process de novo.” During his deposition, Dr. Fintel was
       asked what he meant by the phrase “de novo.” He responded, “I was trying to express my
       opinion that his underlying disease was a direct consequence of his multiple risk factors, the
       smoking, the family history, his male sex, et cetera, and that work as a fireman was not the
       cause of his underlying coronary artery disease, that had he been doing another job he would
       still have experienced progressive and life-threatening coronary disease.”



                                                  -5-
¶ 25       On September 17, 2014, the arbitrator issued his decision in the matter. He found that the
       employer had successfully rebutted the presumption set forth in section 6(f) of the Act “by
       showing that [claimant’s] preexisting coronary artery disease alone was the cause of the
       cardiac event on February 5, 2014.” The arbitrator “discount[ed] Dr. Berry’s opinion that
       occupational exposure could have played a role in this case, given that there was absolutely
       no evidence submitted that would quantify or even generally describe the type or frequency
       of [claimant’s] exposure in this regard.” He noted, “the evidence overwhelming[ly] shows
       that [claimant] had multiple risk factors―including the fact that he was obese, had a family
       history of coronary artery disease, was a long-term and heavy smoker, and was possibly
       diabetic or prediabetic as well as hypertensive―and that the near fatal cardiac event he
       subsequently suffered could have happened at anytime and anywhere.” The arbitrator further
       concluded that claimant “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 found claimant failed to prove that he suffered accidental injuries
       arising out of his employment or that his current condition of ill-being was causally related to
       the alleged accident.
¶ 26       On June 1, 2015, the Commission affirmed and adopted the decision of the arbitrator.
       (We note that it also erroneously remanded the case “for a determination of a further amount
       of temporary total compensation or of compensation for permanent disability, if any,
       pursuant to Thomas v. Industrial Comm’n, 78 Ill. 2d 327, 399 N.E.2d 1322 (1980).”)
¶ 27       On December 22, 2015, the circuit court of Kane County confirmed the Commission’s
       decision.
¶ 28       This appeal followed.

¶ 29                                        II. ANALYSIS
¶ 30       On appeal, claimant asserts the Commission erred in finding the employer had
       successfully rebutted the statutory presumption found in section 6(f) of the Act. In the
       alternative, claimant contends the Commission’s finding his heart attack did not arise out of
       and was not causally related to a work accident was against the manifest weight of the
       evidence.

¶ 31                                    A. Section 6(f) of the Act
¶ 32       As noted, claimant first asserts the Commission erred in finding the employer had
       successfully rebutted the presumption found in section 6(f) of the Act. Specifically, claimant
       contends that the evidence showing he had other risk factors for developing coronary artery
       disease was insufficient to rebut the presumption that his coronary artery disease arose out of
       his employment as a firefighter. We will review the Commission’s determination that the
       employer presented sufficient evidence to rebut the statutory presumption under the manifest
       weight of the evidence standard.
¶ 33       Section 6(f) of the Act provides, in pertinent part, as follows:
              “Any condition or impairment of health of an employee employed as a firefighter,
              emergency medical technician (EMT), or paramedic which results directly or
              indirectly from any bloodborne pathogen, lung or respiratory disease or condition,
              heart or vascular disease or condition, hypertension, tuberculosis, or cancer resulting


                                                  -6-
              in any disability (temporary, permanent, total, or partial) to the employee shall be
              rebuttably presumed to arise out of and in the course of the employee’s firefighting,
              EMT, or paramedic employment and, further, shall be rebuttably presumed to be
              causally connected to the hazards or exposures of the employment. *** However, this
              presumption shall not apply to any employee who has been employed as a firefighter,
              EMT, or paramedic for less than 5 years at the time he or she files an Application for
              Adjustment of Claim concerning this condition or impairment with the Illinois
              Workers’ Compensation Commission.” 820 ILCS 305/6(f) (West 2014).

¶ 34                          1. Presumptions and Rebuttable Presumptions
¶ 35       Because section 6(f) of the Act provides for a rebuttable presumption, we first discuss the
       legal analysis relevant to the application of such a presumption.
¶ 36       In Diederich v. Walters, 65 Ill. 2d 95, 100-01, 357 N.E.2d 1128, 1130-31 (1976), our
       supreme court considered the effect of rebuttable presumptions and explained as follows:
               “With regard to the procedural effect of presumptions, most jurisdictions in this
               country follow the rule that a rebuttable presumption may create a prima facie case as
               to the particular issue in question and thus has the practical effect of requiring the
               party against whom it operates to come forward with evidence to meet the
               presumption. However, once evidence opposing the presumption comes into the case,
               the presumption ceases to operate, and the issue is determined on the basis of the
               evidence adduced at trial as if no presumption had ever existed. (See 1 Jones,
               Evidence sec. 3:8 (6th ed. 1972).) The burden of proof thus does not shift but remains
               with the party who initially had the benefit of the presumption. Consistent with this
               view, Dean Wigmore states in his treatise on evidence that ‘the peculiar effect of a
               presumption “of law” (that is, the real presumption) is merely to invoke a rule of law
               compelling the jury to reach the conclusion in the absence of evidence to the contrary
               from the opponent. If the opponent does offer evidence to the contrary (sufficient to
               satisfy the judge’s requirement of some evidence), the presumption disappears as a
               rule of law, and the case is in the jury’s hands free from any rule ***.’ (9 Wigmore,
               Evidence sec. 2491, at 289 (3d ed. 1940).)” (Emphasis omitted.)
¶ 37       The supreme court provided further guidance with regard to rebuttable presumptions in
       Franciscan Sisters Health Care Corp. v. Dean, 95 Ill. 2d 452, 448 N.E.2d 872 (1983). In that
       case, the court expanded upon its discussion in Diederich, noting “[t]he prevailing theory
       regarding presumptions that Illinois follows and Diederich speaks about is Thayer’s
       bursting-bubble hypothesis: once evidence is introduced contrary to the presumption, the
       bubble bursts and the presumption vanishes.” Id. at 462, 448 N.E.2d at 877. In other words,
       once evidence has been presented to rebut the presumption, the metaphorical bubble bursts
       and the trier of fact must then consider the evidence presented in the case as if the
       presumption had never existed. Id.

¶ 38                           2. The Amount of Evidence Necessary
                               to Rebut the Section 6(f) Presumption
¶ 39       “The amount of evidence that is required from an adversary to meet the presumption is
       not determined by any fixed rule.” Id. at 463, 448 N.E.2d at 877. Generally, “[t]he party


                                                  -7-
       contesting the presumption must come forward with sufficient evidence to support a finding
       of the nonexistence of the presumed fact.” R.J. Management Co. v. SRLB Development
       Corp., 346 Ill. App. 3d 957, 965, 806 N.E.2d 1074, 1081 (2004). However, in some cases
       where compelling policy considerations are at issue, the “party attacking a presumption has a
       greater burden of production than merely producing evidence sufficient to support a
       reasonable trier of fact’s finding as to the nonexistence of the presumed fact.” Id. (citing
       Michael H. Graham, Cleary and Graham’s Handbook of Illinois Evidence § 302.5, at 88 (8th
       ed. 2004)). In those cases, “the challenging party must overcome a ‘strong’ presumption by
       clear and convincing evidence.” Id. “The clear and convincing standard requires proof
       greater than a preponderance but not quite approaching the criminal standard of proof beyond
       a reasonable doubt.” Enbridge Energy (Illinois), L.L.C. v. Kuerth, 2016 IL App (4th) 150519,
       ¶ 134. “Although this strong presumption commonly arises in fiduciary relationships, it has
       also been applied in other contexts.” Id.
¶ 40       In some statutes, which provide for a rebuttable presumption, our legislature has provided
       specific language regarding the amount of evidence a party contesting the presumption must
       present. For example, section 11-5.3(c) of the Probate Act of 1975 (755 ILCS 5/11-5.3(c)
       (West 2014)) provides, “[t]here shall be a rebuttable presumption that a parent of a minor is
       willing and able to carry out day-to-day child care decisions concerning the minor, but the
       presumption may be rebutted by a preponderance of the evidence.” In contrast, section
       1(D)(i) of the Adoption Act (750 ILCS 50/1(D)(i) (West 2014)) provides that the conviction
       of any one of a number of listed criminal offenses “shall create a presumption that a parent is
       depraved which can be overcome only by clear and convincing evidence.”
¶ 41       Unlike the above statutes, section 6(f) is silent as to the amount of evidence required to
       rebut the presumption therein. As such, we must determine, as a matter of statutory
       construction, whether the rebuttable presumption provided for in section 6(f) falls into the
       strong or ordinary category, requiring either clear and convincing evidence or merely “some
       evidence,” respectively, to the contrary. Because the task before us is one of statutory
       interpretation, we employ a de novo standard of review. Freeman United Coal Mining Co. v.
       Industrial Comm’n, 317 Ill. App. 3d 497, 503, 739 N.E.2d 1009, 1014 (2000).
¶ 42       “In interpreting the Act, our primary goal is to ascertain and give effect to the intent of
       the legislature.” Cassens Transport Co. v. Illinois Industrial Comm’n, 218 Ill. 2d 519, 524,
       844 N.E.2d 414, 418 (2006). “The language used in the statute is normally the best indicator
       of what the legislature intended,” and “[e]ach undefined word in the statute must be given its
       ordinary and popularly understood meaning.” Gruszeczka v. Illinois Workers’ Compensation
       Comm’n, 2013 IL 114212, ¶ 12, 992 N.E.2d 1234. “[W]here the statutory language is clear, it
       will be given effect without resort to other aids for construction.” Id. However, where a
       statute is ambiguous, we may consider other sources, including legislative history, to
       determine the legislature’s intent. Id. ¶ 17.
¶ 43       Here, after a careful review of section 6(f), we are unable to discern from the language of
       the Act the amount of evidence necessary to overcome the rebuttable presumption contained
       therein. Because it could be either clear and convincing evidence or just some evidence to the
       contrary that is necessary to rebut the presumption, we are unable to apply the statute without
       looking beyond the Act’s language. Krohe v. City of Bloomington, 204 Ill. 2d 392, 397-98,
       789 N.E.2d 1211, 1214 (2003). Accordingly, we consider the legislative history behind
       section 6(f) to determine the legislature’s intent. Id.; see also People v. Rose, 268 Ill. App. 3d

                                                   -8-
       174, 178, 643 N.E.2d 865, 868 (1994) (“where the language is ambiguous, it is appropriate to
       examine the legislative history”).
¶ 44       Here, the floor debates on House Bill 928, which enacted section 6(f) of the Act in Public
       Act 95-316 (eff. Jan 1, 2008), are helpful. During the floor debate, the bill’s sponsor,
       Representative Hoffman, was asked to explain the rationale behind the proposed legislation.
       He responded as follows:
                   “Well, I think the current law, what would happen is a firefighter who has these
               diseases has to come in and the Workers’ Compensation Act only covers you for
               work-related injuries. So you have to prove that the injury was a result of activities on
               the job. Many times that’s very difficult with these types of diseases to prove. Yet we
               know over, and over, and over again that it’s more likely than not that they were a
               result of the activities of the firefighter while on the job, because there’s a higher
               incidence of these types of illnesses as a result of that type of employment. So what
               this does is if you have it you could bring your action, it doesn’t mean you’re going to
               get compensated, it doesn’t mean you’re going to win, it doesn’t mean that you have
               proven beyond any doubt or conclusively that this happened on the job, it only means
               that the employer can then come in and bring contrary evidence as to whether or not
               it happened on the job.” (Emphasis added.) 95th Ill. Gen. Assem., House
               Proceedings, Apr. 27, 2007, at 68-69 (statements of Representative Hoffman).
       Representative Hoffman further explained how the rebuttable presumption would apply to a
       hypothetical firefighter who developed lung cancer toward the end of his career. He stated
       that an employer could introduce evidence of the firefighter’s smoking history to rebut the
       presumption that the cancer arose out of his employment as a firefighter. Id. at 81. He
       continued, “[s]o don’t think it’s conclusive that simply because you have lung cancer, you’re
       going to get compensation of the Worker’s Compensation Act. What we’re saying is, we’ll
       get you to the hearing. Then the other side can bring in evidence that you smoked for thirty
       (30) years and therefore, it wasn’t a result of the actions taken at work.” Id. at 82.
¶ 45       Based on the above legislative history, we find that section 6(f) does not involve a strong
       rebuttable presumption, requiring clear and convincing evidence. Rather, we conclude that
       the legislature intended an ordinary rebuttable presumption to apply, simply requiring the
       employer to offer some evidence sufficient to support a finding that something other than
       claimant’s occupation as a firefighter caused his condition.

¶ 46                           3. Whether the Employer Introduced Evidence
                                     Sufficient to Rebut the Presumption
¶ 47       Here, it is undisputed that at the time of arbitration, claimant suffered from coronary
       artery disease and was entitled to the benefit of the presumption set forth in section 6(f) by
       virtue of his 15-plus years of work as a firefighter. The arbitrator found that the employer had
       rebutted the presumption “by showing that [claimant’s] preexisting coronary artery disease
       alone was the cause of the cardiac event on February 5, 2014.” However, this finding by the
       arbitrator fails to properly frame the presumed fact. The presumed fact here is that claimant’s
       coronary artery disease—not just the cardiac event—arose out of his employment as a
       firefighter. Thus, the issue before us is whether the evidence introduced by the employer was
       sufficient to rebut the presumed fact as we have stated it.


                                                   -9-
¶ 48        Initially, we note that, in applying the section 6(f) presumption here, it is irrelevant
       whether claimant was performing a work function, i.e., shoveling snow, at the time of his
       heart attack because, as we have stated, it is claimant’s underlying coronary artery
       disease—which manifested itself at the time of claimant’s heart attack—to which the
       presumption attaches. Further, in order for the presumption to attach, it is immaterial whether
       a claimant has submitted specific evidence to show his actual level of occupational
       exposure—he simply must establish he has worked as a firefighter for at least five years.
       Consequently, the determinative issue here is whether the employer successfully rebutted the
       presumption that claimant’s coronary artery disease arose out of and in the course of his
       employment.
¶ 49        In that regard, the record shows Dr. Fintel authored a report after examining claimant and
       his medical records. In considering whether claimant’s occupation as a firefighter placed him
       at risk for premature coronary artery disease, Dr Fintel wrote, “[claimant’s] vocational duties
       did not cause the underlying disease process de novo.” When asked at his deposition what he
       meant by the phrase “de novo,” Dr. Fintel responded, “I was trying to express my opinion
       that his underlying disease was a direct consequence of his multiple risk factors, the smoking,
       the family history, his male sex, et cetera, and that work as a fireman was not the cause of his
       underlying coronary artery disease, that had he been doing another job he would still have
       experienced progressive and life-threatening coronary disease.” (Emphasis added.) Dr.
       Fintel noted that claimant had multiple risk factors for developing coronary artery disease. In
       particular, claimant (1) had a 20-year history of smoking 1 to 1½ packs of cigarettes per day,
       (2) had a family history of heart disease, (3) was possibly “mildly diabetic,” and (4) was
       obese. Dr. Fintel testified that claimant’s history of smoking “at least a pack per day” for 20
       years leading up to his heart attack was “probably the major cause chronically of developing
       advanced atherosclerosis.”
¶ 50        Dr. Fintel’s testimony stands in opposition to the presumed fact that claimant’s coronary
       artery disease arose out of his employment. Given this evidence and that the employer
       needed only to rebut the section 6(f) presumption by presenting some contrary evidence, we
       find the presumption was rebutted. Accordingly, the Commission’s finding on this issue was
       not against the manifest weight of the evidence.
¶ 51        We address here claimant’s assertion that in order to rebut the presumption, the employer
       had to do more than simply point to other potential causes of his coronary artery disease
       without first excluding occupational exposure as a contributing cause. He cites to case law in
       support of the proposition that to prove causation, a claimant need only establish his
       occupational exposure was a factor in the resulting condition of ill-being. See Gross v.
       Illinois Workers’ Compensation Comm’n, 2011 IL App (4th) 100615WC, ¶¶ 22-23, 60
       N.E.2d 587. While it is correct that in order to obtain an award of benefits under the Act, a
       claimant need only prove an employment risk was a cause of his condition of ill-being
       (Sisbro, Inc. v. Industrial Comm’n, 207 Ill. 2d 193, 205, 797 N.E.2d 665, 673 (2003)), we
       find this basic proposition of law is not applicable in the context of a section 6(f)
       presumption. Nothing contained in the legislative debates on House Bill 928 indicates the
       legislature intended that an employer be required to eliminate any occupational exposure as a
       possible contributing cause of a claimant’s condition in order to successfully rebut the
       presumption that the disease or condition arose out of his employment. Claimant cites no
       authority in support of this proposition and we decline to so hold. We note that if the

                                                  - 10 -
       employer is successful in rebutting the section 6(f) presumption, at that point the claimant
       may, if the evidence supports it, assert that his occupational exposure was a cause of his
       condition of ill-being, along the lines of Sisbro, thus entitling him to an award of benefits.

¶ 52                         B. Whether Claimant Suffered a Work Accident
¶ 53       As explained, once a party has successfully rebutted a presumption such as the section
       6(f) presumption here, the presumption vanishes and the parties proceed as if the
       presumption never existed. Accordingly, we now consider claimant’s alternative argument
       that the Commission’s subsequent finding that his heart attack did not arise out of a work
       accident was against the manifest weight of the evidence. It is important to note that, while
       claimant asserted in his section 6(f) argument above that it was his underlying coronary
       artery disease that presumptively arose out of his employment, he argues in this second part
       of his appeal that the “cardiac event” arose out of his efforts to clear snow in the parking lot
       that day and that the Commission’s finding to the contrary is against the manifest weight of
       the evidence. Specifically, claimant contends that “[t]he manifest weight of the evidence
       leads to the conclusion that [he] exited the firehouse into cold air for the purpose of clearing
       snow and that [he] did engage in the physical activity of clearing snow using a combination
       of a shovel and/or a snow blower.” In other words, in his alternative argument on appeal,
       claimant does not assert that the manifest weight of the evidence established his occupational
       exposure over the years was a cause of his underlying coronary artery disease—only that his
       work activities on the day in question caused the cardiac event. Thus, we will limit our
       discussion to this argument.
¶ 54       “To obtain compensation under the Act, a claimant bears the burden of showing, by a
       preponderance of the evidence, that he has suffered a disabling injury which arose out of and
       in the course of his employment.” Sisbro, 207 Ill. 2d at 203, 797 N.E.2d at 671. “Both
       elements must be present at the time of the claimant’s injury in order to justify
       compensation.” Springfield Urban League v. Illinois Workers’ Compensation Comm’n, 2013
       IL App (4th) 120219WC, ¶ 25, 990 N.E.2d 284. An injury occurs “in the course of
       employment” when it “occur[s] within the time and space boundaries of the employment.”
       Sisbro, 207 Ill. 2d at 203, 797 N.E.2d at 671. An injury “arises out of” employment when
       “the injury had its origin in some risk connected with, or incidental to, the employment so as
       to create a causal connection between the employment and the accidental injury.” Id.
¶ 55       Whether an injury arose out of and in the course of one’s employment is generally a
       question of fact, and the Commission’s determination on this issue will not be disturbed
       unless it is against the manifest weight of the evidence. Brais v. Illinois Workers’
       Compensation Comm’n, 2014 IL App (3d) 120820WC, ¶ 19, 10 N.E.3d 403. “In resolving
       questions of fact, it is within the province of the Commission to assess the credibility of
       witnesses, resolve conflicts in the evidence, assign weight to be accorded the evidence, and
       draw reasonable inferences from the evidence.” Hosteny v. Illinois Workers’ Compensation
       Comm’n, 397 Ill. App. 3d 665, 674 (2009). “The test is whether the evidence is sufficient to
       support the Commission’s finding, not whether this court or any other tribunal might reach
       an opposite conclusion.” Land & Lakes Co. v. Industrial Comm’n, 359 Ill. App. 3d 582, 592,
       834 N.E.2d 583, 592 (2005). “For the Commission’s decision to be against the manifest
       weight of the evidence, the record must disclose that an opposite conclusion clearly was the
       proper result.” Land & Lakes, 359 Ill. App. 3d at 592, 834 N.E.2d at 592.

                                                  - 11 -
¶ 56       Here, the employer does not dispute that claimant’s heart attack occurred in the course of
       his employment. Thus, our focus is limited to whether claimant’s heart attack occurred
       “while [he was] shoveling snow in [the] fire department parking lot” as he alleged in his
       application for adjustment of claim.
¶ 57       To that end, we note that claimant has no recollection of the events immediately
       preceding his heart attack. As stated, claimant’s last memory prior to suffering his heart
       attack and waking up in the hospital was “talking to one of the guys that was coming off
       shortly after I got in.” In fact, claimant admitted that, instead of going outside to shovel
       snow, he could have gone outside in order to smoke a cigarette.
¶ 58       Additionally, the record shows that, while three of claimant’s fellow firefighters heard
       that claimant “was going outside to shovel” or “was outside snow blowing,” no one actually
       heard a snowblower or saw claimant shoveling or blowing snow. Further, although three of
       the four witnesses recalled seeing a snowblower outside, they could not agree as to the
       location of the snowblower in proximity to claimant’s body. In particular, one witness
       recalled the snowblower was five to six feet from claimant’s body, while another
       remembered the snowblower being only two to three feet from claimant’s body, and yet
       another did not recall seeing a snowblower at all. Finally, while the record shows that two of
       the witnesses recalled claimant’s parking spot being clear of snow, one of them
       acknowledged that the spot would have been empty of snow if another vehicle had been
       parked there overnight. In short, the evidence surrounding claimant’s unwitnessed heart
       attack failed to establish the heart attack arose out of his employment.
¶ 59       Based on our review of the record, we cannot say the Commission’s finding that claimant
       was not removing snow at the time of his heart attack was error. Thus, the Commission’s
       determination that claimant’s heart attack did not arise out of his employment was not against
       the manifest weight of the evidence. Further, even if it could be argued claimant had not
       confined his manifest weight argument to his heart attack, but had also included the
       development of his coronary artery disease, we would find the Commission’s decision that he
       did not suffer accidental injuries that arose out of his employment was not against the
       manifest weight of the evidence. Claimant presented no evidence that his occupational
       exposure contributed to cause his coronary artery disease. Instead, Dr. Berry testified only
       that there existed medical research that generally supports a correlation between a
       firefighter’s occupational exposure and the development of coronary artery disease. Dr.
       Berry did not opine that claimant’s occupational exposure contributed to cause his disease.
       Thus, claimant failed to establish a causal connection existed between his occupational
       exposure and coronary artery disease.
¶ 60       In closing, we note that, despite denying claimant benefits under the Act, the Commission
       remanded the matter pursuant to Thomas, 78 Ill. 2d 327, 399 N.E.2d 1322. This remand was
       in error.

¶ 61                                       III. CONCLUSION
¶ 62       For the reasons stated, we vacate the circuit court’s decision to the extent it affirmed the
       Commission’s remand of the case, and we vacate the Commission’s remand. We otherwise
       affirm the circuit court’s judgment confirming the Commission’s decision.



                                                  - 12 -
¶ 63       Affirmed in part and vacated in part.

¶ 64        PRESIDING JUSTICE HOLDRIDGE, dissenting.
¶ 65        I dissent. The majority states that, in order to rebut the statutory presumption that the
       claimant’s vascular disease and resulting heart attack were causally related to his
       employment as a firefighter, an employer must offer some evidence sufficient to support a
       finding that “something other than [the] claimant’s occupation as a firefighter caused his
       condition.” Supra ¶ 45. According to the majority, an employer can make this showing (and
       rebut the statutory presumption) even if it does not “eliminate any occupational exposure as a
       possible contributing cause” of the claimant’s condition. Supra ¶ 51. From this premise, the
       majority concludes that the employer successfully rebutted the statutory presumption in this
       case by presenting Dr. Fintel’s opinions that (1) the claimant’s coronary artery disease was a
       direct consequence of multiple, non-work-related risk factors, including the claimant’s
       smoking history, his obesity, his diabetes, his male gender, and his family history; (2) the
       claimant’s work as a fireman was “not the cause of” his underlying coronary artery disease;
       and (3) “had [the claimant] been doing another job[,] he still would have experienced
       progressive and life-threatening coronary disease.” (Emphasis and internal quotation marks
       omitted.) Supra ¶ 49.
¶ 66        I disagree. To rebut the presumption, the opposing party must present evidence that is
       “sufficient to support a finding of the nonexistence of the presumed fact.” (Internal quotation
       marks omitted.) Franciscan Sisters Health Care Corp. v. Dean, 95 Ill. 2d 452, 462-63
       (1983). Here, the presumed fact is that the claimant’s cardiovascular condition and ensuing
       heart attack were causally connected to his employment as a firefighter. In order to establish
       such a causal connection under the Act, a claimant must prove that some act or phase of his
       employment was a causative factor in his ensuing injuries. Land & Lakes Co. v. Industrial
       Comm’n, 359 Ill. App. 3d 582, 592 (2005). A work-related injury need not be the sole or
       principal causative factor, as long as it was a causative factor in the resulting condition of
       ill-being. Sisbro, Inc. v. Industrial Comm’n, 207 Ill. 2d 193, 205 (2003). Even if the claimant
       had a preexisting degenerative condition that made him more vulnerable to injury, recovery
       for an accidental injury will not be denied as long as he can show that his employment was
       also a causative factor. Sisbro, 207 Ill. 2d at 205; Swartz v. Industrial Comm’n, 359 Ill. App.
       3d 1083, 1086 (2005). A claimant may establish a causal connection in such cases if he can
       show that a work-related injury played a role in aggravating or accelerating his preexisting
       condition. Mason & Dixon Lines, Inc. v. Industrial Comm’n, 99 Ill. 2d 174, 181 (1983);
       Azzarelli Construction Co. v. Industrial Comm’n, 84 Ill. 2d 262, 266 (1981); Swartz, 359 Ill.
       App. 3d at 1086.1 Accordingly, the statutory presumption of causation in this case required
       the fact finder to presume that the claimant’s work as a firefighter was a contributing cause
       of his underlying cardiovascular condition, which caused his heart attack and his ensuing

           1
             Similarly, to recover compensation under the Occupational Diseases Act (820 ILCS 310/1 et seq.
       (West 2014)), the claimant must prove that he suffers from an occupational disease that is causally
       connected to his employment. Bernardoni v. Industrial Comm’n, 362 Ill. App. 3d 582, 596 (2005).
       However, the occupational activity need not be the sole or even the principal causative factor, as long as
       it is a causative factor in the resulting condition of ill-being. Id.; see also Gross v. Illinois Workers’
       Compensation Comm’n, 2011 IL App (4th) 100615WC, ¶ 22.

                                                      - 13 -
       disability. To rebut this presumption, the employer was required to present some contrary
       evidence suggesting that the claimant’s employment was not a contributing cause of his
       cardiovascular condition. 2 For example, the employer could rebut the presumption by
       presenting expert opinion testimony that (1) exposure to smoke or toxic fumes while fighting
       fires is not a risk factor for the claimant’s cardiovascular condition or (2) the claimant’s
       particular level of exposure to smoke or toxic fumes on the job did not causally contribute to
       his cardiovascular condition.
¶ 67       Here, the employer did neither. Instead, it presented Dr. Fintel’s opinion that the
       claimant’s coronary artery disease was caused by multiple, non-work-related risk factors and
       not by his work as a firefighter. In my view, Dr. Fintel’s opinion was insufficient to rebut the
       presumption of causation in this case. Dr. Fintel acknowledged that medical literature has
       noted an increased risk of coronary artery disease in firefighters, and he conceded that the
       claimant’s work as a firefighter “could be a risk factor” for coronary artery disease depending
       on his level of exposure to smoke. On cross-examination, Dr. Fintel stated that he was
       unaware of any connection between the claimant’s occupation and his coronary artery
       disease because he was “unaware of what extent of smoke exposure [the claimant] had in
       [his] fire suppression activities.” Accordingly, Dr. Fintel did not (and could not) rule out the
       possibility that the claimant’s occupational exposure to smoke and toxic fumes was a
       contributing cause of his coronary artery disease and resulting heart attack.
¶ 68       Given this, Dr. Fintel’s opinion that the claimant’s coronary artery disease was not
       causally connected to his work as a firefighter was without foundation and unworthy of
       credence. Expert opinions “must be supported by facts” (internal quotation marks omitted)
       (Gross, 2011 IL App (4th) 100615WC, ¶ 24) and are only as valid as the facts and reasons
       underlying them (id.; see also Sunny Hill of Will County v. Illinois Workers’ Compensation
       Comm’n, 2014 IL App (3d) 130028WC, ¶ 36). The proponent of expert testimony must lay a
       foundation sufficient to establish the reliability of the basis for the expert’s opinion. Gross,
       2011 IL App (4th) 100615WC, ¶ 24; see also Sunny Hill of Will County, 2014 IL App (3d)
       130028WC, ¶ 36. If the basis of an expert’s opinion is grounded in guess or surmise, it is too
       speculative to be reliable. Gross, 2011 IL App (4th) 100615WC, ¶ 24. Because Dr. Fintel
       acknowledged that the claimant’s employment could be causally related to his coronary
       artery condition “depending on his level of exposure” to smoke on the job but admitted that
       he was unaware of the claimant’s actual level of exposure to smoke as a firefighter, Dr.
       Fintel’s opinion that the claimant’s job was not causally connected to his coronary artery
       condition was speculative and without foundation. Given the information made available to
       him, Dr. Fintel could not reasonably conclude that the claimant’s employment was not a
       contributing cause of his coronary artery disease. Moreover, even assuming arguendo 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
           2
            I disagree with the majority’s statement that, in order to rebut the presumption, the employer
       merely needs to present some evidence sufficient to support a finding that something other than the
       claimant’s occupation caused his condition. Supra ¶ 45. The presumed fact under section 6(f) is that the
       claimant’s occupation was a contributing cause of his condition of ill-being. An employer cannot rebut
       this presumed fact merely by pointing to other potentially contributing causes. Rather, it must present
       evidence sufficient to support a finding that the claimant’s employment was not a contributing cause.

                                                     - 14 -
       accelerated by his occupational exposure to smoke and fumes. Because Dr. Fintel’s opinion
       lacked sufficient foundation to support a finding of no causal connection, the employer failed
       to rebut the statutory presumption in this case. Franciscan Sisters Health Care Corp., 95 Ill.
       2d at 462-63.
¶ 69       One final point bears mentioning. In determining that an employer rebuts the section 6(f)
       presumption by presenting some evidence that “something other than the claimant’s
       occupation as a firefighter caused his condition,” the majority relies entirely upon certain
       comments made by Representative Hoffman during the floor debates on House Bill 928,
       which enacted section 6(f) in Public Act 95-316 (eff. Jan. 1, 2008).3 Supra ¶¶ 44-45. The
       majority states that it considered this legislative history because it was “unable to discern
       from the language of the Act the amount of evidence necessary” to rebut the presumption. In
       other words, because section 6(f) does not specify a particular quantum or type of evidence
       required to rebut the presumption, the majority concludes that the statute is ambiguous and in
       need of clarification by resort to legislative history.
¶ 70       I disagree. Where statutes are enacted or amended after judicial opinions are published,
       “it must be presumed that the legislature acted with knowledge of the prevailing case law.”
       (Internal quotation marks omitted.) Burrell v. Southern Truss, 176 Ill. 2d 171, 176 (1997);
       see also Bagcraft Corp. v. Industrial Comm’n, 302 Ill. App. 3d 334, 339 (1998); Manago v.
       County of Cook, 2016 IL App (1st) 121365, ¶ 22. We must therefore assume that the
       legislature was aware of and approved the existing common-law standards for overcoming
       rebuttable presumptions when it enacted section 6(f). See Burrell, 176 Ill. 2d at 176. That
       standard was articulated in Franciscan Sisters Health Care Corp. Because section 6(f) does
       not explicitly announce a different standard, we must presume that the legislature
       incorporated the common-law standard. Burrell, 176 Ill. 2d at 176; see also Bagcraft Corp.,
       302 Ill. App. 3d at 338 (“[t]he judiciary will not interpret a statute in a manner that will
       abrogate the common law unless such intent is clearly gleaned from the language of the
       statute”); Malfeo v. Larson, 208 Ill. App. 3d 418, 424 (1990) (a statute “cannot be construed
       as changing the common law beyond what is expressed by the words of the statute or is
       necessarily implied from what is expressed”). Accordingly, there is no ambiguity in section
       6(f) and therefore no need to consider that section’s legislative history. As the majority
       acknowledges, unambiguous statutes must be construed according to their plain meaning,
       without resort to legislative history or other aids for construction.4

           3
             As the majority notes, Representative Hoffman was the bill’s sponsor.
           4
             In my view, the use of legislative history in construing a statute’s meaning is often problematic
       even if the statute is ambiguous. As Justice Scalia noted, “[w]e are governed by laws, not by the
       intentions of legislators.” Conroy v. Aniskoff, 507 U.S. 511, 519 (1993) (Scalia, J., concurring).
       “[L]egislators do not make laws by making speeches on the floor of the legislative chamber.” Town of
       the City of Bloomington v. Bloomington Township, 233 Ill. App. 3d 724, 736 (1992). “They make laws
       by majority vote on a specifically worded bill that has been read three times before each house and
       distributed to each legislator.” Id.; see also Ill. Const. 1970, art. IV, § 8(c), (d). “Neither the disclosed
       nor undisclosed intent of a legislator *** becomes law; only the bill as it reads when passed becomes
       law.” (Emphasis omitted.) Town of City of Bloomington, 233 Ill. App. 3d at 736. Thus, while a court
       may properly consult dictionaries and other appropriate sources in interpreting the meaning of
       ambiguous terms contained in a statute, the intent of any individual legislators prior to the enactment of
       the statute is arguably irrelevant. In any event, statements made by individual legislators during floor

                                                        - 15 -
¶ 71       For the reasons set forth above, I would find that the employer failed to rebut the
       statutory presumption of causation in this case. I would therefore reverse the Commission’s
       decision and remand the matter to the Commission.




       debates or in committee reports do not necessarily reflect the intent of all of the legislators who
       ultimately voted to enact the law in question. Some legislators might not have been aware of such
       statements when they voted. See, e.g., Krohe v. City of Bloomington, 329 Ill. App. 3d 1133, 1139
       (2002) (Steigmann, J., dissenting). Unless the legislator’s statements are included in the language of the
       statute itself, the statements are not voted upon by the legislators or signed into law by the governor.
       Only the language of the statute, as passed, could properly convey the “legislature’s intent” in passing
       the statute, assuming that such an intent exists and is legally relevant.

                                                      - 16 -
