Helmer v. State Accident Insurance Fund

FOLEY, J. This is a workmen’s compensation case. The claimant suffered a heart attack and the question for determination is whether or not the heart attack was causally connected to claimant’s work. The hearing officer determined against the workman as did the Workmen’s Compensation Board. The circuit court reversed, finding that the heart attack was work-connected and the State Accident Insurance Fund appeals. The hearing officer’s opinion fairly sets forth the facts: “At the time of the contested incident claimant was a 50-year-old meat cutter who owned and operated the Russellville Market at 10301 S.E. Stark, Portland, Oregon. He has worked at this trade since 1936, having started as an apprentice, except for three and a half years in the Navy. From 1957 until 1972 he managed meat markets in some of the larger grocery stores and in April 1972 purchased and opened the Russellville Market. He elected coverage as a self-employed person. “Claimant had suffered with an ulcer since 1963 so discomfort or epigastric pressure near the stomach and just below the breast bone were not unusual experiences for him. On Thursday, October 26, 1972 claimant noticed a stomach discomfort and — 450 — began drinking rich milk (Half and Half) to coat the stomach and relieve the discomfort. This brought temporary relief but did not change the progression of the problem. On Friday claimant was worse and began taking Maalox, turned pale in appearance and developed periods of sweating. Rest, milk and Maalox gave temporary relief. “On Friday evening claimant worked two hours extra, a common occurrence on Fridays, and arrived home feeling quite ill. He ate a dinner of beef broth which his wife had selected because of claimant’s illness. While eating and watching television, claimant had another episode of discomfort and a ‘feeling of pressure’ just below the breast bone but this time it was a little more painful and some pain extended into his shoulders and his arms. Rest, milk and Maalox did not relieve the discomfort at this time and claimant walked around the house for additional relief. He retired early that evening. That the discomfort on this occasion was not relieved by rest, milk and Maalox is a distinction which assumes great importance in determining the probable time of the myocardial infarction. “Claimant worked on Saturday until about 3:00 p.m. when his condition was much worse, longer rest periods were required, sweating was more noticeable and his color was described as green or gray. He consulted Dr. Reiner by telephone on Saturday and went to the outpatient clinic at Portland Adventist Hospital Sunday morning for a further checkup. An EKG- at that time confirmed a myocardial infarction of recent date and the enzyme studies placed the time at about 36 hours prior to the examination. On the basis of these facts the doctors are in agreement that the myocardial infarction occurred at about 8:00 p.m. on Friday, October 27, 1972. The Hearing Officer so finds.” As the hearing officer found, both doctors agreed that the myocardial infarction occurred while the patient was at home after work. This was at a time — 451 — during the evening when he was eating dinner and watching television. His treating doctor, Dr. Estill Deitz, an internist who testified that his practice involves 45 to 50 per cent heart cases, felt that the evening cardiac attack was work-connected. He stated in answer to the question of whether he believed claimant’s work activity “* * * was a material, contributing factor to the production of the myocardial infarction”: “A Yes, I believe that it was a contributing factor. “Q And upon what basis do yon make this opinion? “A Well, I think this would be based on the fact that Mr. Helmer had had symptoms several days prior to coming into the hospital, he had had definite aggravation of symptoms during his work activities. He had noted lifting, working fast, made it worse, perspiring. He had noted going into the cold atmosphere of the freezer would tend to make the symptoms worse, and whether -or not it actually caused it, I can’t answer that question, but I do feel it was a contributing factor.” The other doctor, Dr. Herbert Griswold, Jr., a cardiologist specializing in that field, acknowledged the possibility of a preinfarction syndrome while the claimant was working rather than the epigastric distress described by claimant. After hearing the testimony of the claimant and his witnesses at the hearing, however, he testified: “It would be my feeling, based upon this information — this is my first opinion — that he probably had some peptic ulcer disease, and while watching television Friday evening, on the 27th, he had a myocardial infarction. As I heard the story, that would be one opinion. — 452 — “As I heard the story of Mr. Helmer, in which he was doing various things, going into the cold, coming back, he developed this epigastric distress, again, no note that I heard, and I listened very closely, this pain was pretty much what would be covered by a hand in the epigastric region, no radiation there except little pain into the shoulders a couple of times, one would raise the question, if he wasn’t having some angina during that period of time. However, the heart attack, by the documentation, the consistency of two physicians’ histories, taken independently, as well as the history secured by the investigator for the State Accident Insurance Fund, I am certain that the heart attack occurred while off work, on the evening on or about 8:00 P.M., Friday, the 27th of October. “Q Now, with reasonable medical probability, Doctor, and assuming that the actual infarction did occur the evening of Friday while he was watching television, and all based on reasonable medical probability, would any of the preceding events, pains or what have you at work, or the conditions of work, in your opinion, bear any substantial or material causal relationship to the happening of the infarction at the time and place it, in fact, happened? “A Probably not, and the reason is that, usually, most cardiologists feel, if there is a causal relationship between work and myocardial infarction, it must be related, usually, in a time sequence and to a specific activity. In other words, a person must perform a certain task at that time, within a period- — a reasonable period of time, develop a myocardial infarction. Based upon the data in the record, I would say he probably was having peptic ulcer disease, because even Dr. Deitz, in his admitting note, includes this in his diagnosis, and Dr. Deitz, in that note, probable felt he probably had both at that time or he wouldn’t have put it in the initial note, which is in the medical record.” — 453 — On cross-examination Dr. Griswold testified: “Q You would have to say that there is a possibility, if not a probability that the work activities aggravated the coronary artery disease contributing to the myocardial infarction? “A I could say possible. The fact that this occurred in the evening while he was off work puts it in the usual realm of possibility, not probability.” The expert medical testimony gives rise to two possible interpretations. Either the claimant, in the two days preceding the claimant’s myocardial infarction, was suffering from a peptic ulcer disease and fortuitously sustained the myocardial infarction on Friday evening, or the claimant was having a preinfarction syndrome which culminated in the evening myocardial infarction. Both medical experts agreed that the claimant’s symptoms preceding the heart attack could have been consistent with cardiac distress. Claimant urges that there was no objective evidence that he was, in fact, suffering from a peptic ulcer. However, his own testimony and the symptomatology expressed through his own doctors indicated that he was suffering from peptic ulcer disease. We review the record de novo and are required to make our own determination from the facts developed by the medical testimony. “* * * This is a question of fact and as triers of fact we are required to select which medical hypothesis is correct where, as here, conflicting ones are presented. Sahnow v. Fireman’s Fund Ins. Co., 3 Or App 164, 470 P2d 378 (1970), aff'd 260 Or 564, 491 P2d 997 (1971).” Cardwell v. SAIF, 6 Or App 175, 180, 486 P2d 587, Sup Ct review denied (1971). The burden is upon the claimant to prove a causal connection between the work activity and the compen — 454 — sable injury — in this ease, between the work activity and the myocardial infarction. The hearing officer found that that burden had not been met, which finding was concurred in by the Workmen’s Compensation Board. The Board said: “The Hearing Officer’s order denies the claim and faithfully summarizes the evidence including the medical opinions. “There is expert medical testimony that no causal connection exists; there is also expert medical testimony that causal connection exists. This case must be resolved by its own facts and the medical opinion applied to the facts. The Workmen’s Compensation Board concluded that claimant’s myocardial infarction did not arise out of his employment. We agree with the determination made by the hearing officer and the Workmen’s Compensation Board and find that claimant failed to meet his burden of proving that the work activity bore a causal connection to claimant’s myocardial infarction. See Schwehn v. SAIF, 17 Or App 50, 520 P2d 467, Sup Ct review denied (1974). Reversed.