Griffin v. Time DC, Inc.

BUTTLER, P. J. Claimant appeals from a Workers’ Compensation Board order denying her widow’s benefits under ORS 656.204.1 We affirm. Claimant’s husband, now deceased, had a history of coronary heart disease. In 1971, he had aneurysm surgery. While at work in January, 1975, he inhaled diesel fumes, which caused an acute coronary insufficiency. He suffered a myocardial infarction the next day. He was then determined to be permanently and totally disabled by Determination Order on March 11, 1976. In 1978, he had chest pains diagnosed as a possible thoracic aortic aneurysm. Dr. Olson, his treating physician at that time, did not believe that his symptoms were related to the aneurysm and did not recommend any surgical intervention. He stated that that surgery “is very high risk and would be of particular risk to a patient who has sustained an arterial lateral myocardial infarction” and who smokes 45 packs of cigarettes per year. By 1980, deceased’s coronary heart disease had worsened to the degree that he could not exert himself at all. He was hospitalized again that fall and released. In January, 1981, he was hospitalized with a diagnosis of coronary artery disease. It was determined that a large thoracic aortic aneurysm was displacing his esophagus. Surgery (a gastrostomy) was performed to relieve the esophagus obstruction caused by the thoracic aortic aneurysm. On February 10, 1981, he died. The death certificate listed the cause of death as respiratory arrest due to encroachment on the trachia by a thoracic aneurysm. [502] Claimant contends that she is entitled to benefits under ORS 656.204: “If death results from the accidental injury, payments shall be made as follows: <<* * * * * >5 She contends that the work injury in 1975 worsened deceased’s heart disease to such an extent that surgery to repair the aneurysm was impossible, contributing to his ultimate death in 1981. Accordingly, she argues, death resulted from the accidental injury. The burden is on claimant to demonstrate that death resulted from the 1975 work injury. Youngren v. SAIF, 6 Or App 297, 299, 487 P2d 107, rev den (1971). The referee found that she had not met her burden and denied her claim; the Board affirmed. The reports of three doctors are pertinent. Dr. O’Dell, speaking of the decedent in 1980, said that “* * * he will never be a candidate for surgery because of the extremely poor left ventrical function due to his recurrent myocardial infarctions.” It was he who filled out the death certificate stating that the aneurysm was the cause of death. Dr. Olson, at claimant’s request, wrote a letter shortly prior to the hearing stating his opinion that the thoracic aneurysm was first found in 1978 «* * * an(j jje [decedent] was felt not to be an operative candidate for the thoracic aneurysm, because of his cardiovascular status. The fact that he was not an operative candidate for the vascular surgery because of his cardiac disease allowed the aneurysm to progress and eventually was directly responsible for his death.” That report, however, is not consistent with his earlier report2 of September, 1978, when he wrote that “* * * I would not recommend any surgical intervention at this time. This surgery is very high risk and would be of particular risk to a patient who has sustained an anteral lateral myocardial infarction and has a 45 pack per year smoking history.” [503] In February, 1981, Dr. Olson wrote that Mr. Griffin entered the hospital with problems clearly related to the aneurysm and that he could not associate those problems with the myocardial infarction that had occurred in 1975. Dr. Rogers, who had treated the deceased after the 1975 work-related incident, stated in two separate reports after decedent’s death that he felt death was due to the advanced nature of the deceased’s coronary heart disease with chronic failure.3 However, it was his opinion that if deceased had died of a rupture of the thoracic aneurysm as the death certificate stated, «* * * i Would not attribute death in any way to his coronary disease because the resection of aortic arch aneurysms is largely experimental and very high risk and would not be attempted probably in a man of 65 with chronic obstructive pulmonary disease, even if his heart were of average health.” He concluded that death was “* * * due to the very advanced nature of his coronary heart disease with chronic failure or low output state, perhaps aggravated by the debilitating effects of the tube gastrostomy done 2/5/81, with his death coming 2/10/81.” Claimant, however, does not rely on that conclusion of Dr. Rogers; she concedes that decedent’s death was caused by the aortic aneurysm. There was no autopsy performed, and we are not convinced by the medical evidence that the death “resulted from” deceased’s 1975 injury at work, because the preponderance of that evidence is that death resulted from the aortic aneurysm, which did not “result from” the 1975 injury or from the coronary condition that rendered the decedent totally disabled in 1976. The medical evidence also convinces us that the surgical procedure to accomplish the resection of the aortic arch aneurysm is very high risk surgery that would not have been performed on the decedent in 1978, regardless of the 1975 compensable injury.4 [504] Affirmed. Footnotes [1] ORS 656.204 (amended by Or Laws 1981, ch 874, § 15), provided, in pertinent part: “If death results from the accidental injury, payments shall be made as follows: “(1) The cost of burial shall be paid, not to exceed $1,000 in any case. “(2) If the worker is survived by a spouse, monthly benefits shall be paid * ** * to the surviving spouse until remarriage.” Claimant has abandoned her claim below that she is eligible for benefits under ORS 656.208; she concedes that she does not come within that statute, because she did not marry deceased until more than two years after his work-related injury. [2] The dissent ignores Dr. Olson’s earlier opinion. The inconsistency between the two reports is part of the conflicting medical evidence. [3] Claimant does not contend that the decedent died as a result of his coronary heart disease, but concedes he died as a result of the aneurysm. [4] We do not agree with the dissent that claimant would “probably” recover if the decedent had undergone the surgery to correct the aneurysm and had died during surgery (slip opinion at 3). Given the reports of both Drs. Olson and Rogers that it was a “very high risk” procedure, that statement is doubtful.