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1997 MTWCC 37
ROBERT CHEETHAM, JR.
LIBERTY NORTHWEST INSURANCE CORPORATION
Summary: 51-year old heavy equipment and crane operator suffered an aortic dissection after spending 20 to 30 minutes trying to start a gas powered pump, requiring 50 to 70 pulls on a cord similar to those on lawn mowers. Two physicians, a cardiologist and a family practitioner, testified the dissection was precipitated by claimant's strenuous work, which significantly raised his blood pressure. They opined the work contributed 51% or more to the dissection when compared to claimant's pre-existing aortic disease.
Held: The general criteria for a compensable injury under section 39-71-119(2), MCA (1995) are met where an usual strain at work caused claimant internal physical harm, verified by objective medical findings. In cases of cardiovascular incidents, section 39-71-119(5)(a), MCA (1995), permits compensation "only if the accident is the primary cause of the physical condition in relation to other factors contributing to the physical condition," with "primary cause" defined as "a cause that, with a reasonable degree of medical certainty, is responsible for more than 50% of the physical condition." Here, two physicians credibly testified the specific condition suffered by claimant, aortic dissection, was more than 50% attributable to claimant's episode of high blood pressure, which in turn was caused by strenuous work activities. The condition is compensable.
The trial in this matter was held on March 19, 1997, in Kalispell, Montana. Petitioner, Robert Cheetham, Jr. (claimant), was present and represented by Mr. David W. Lauridsen. Respondent, Liberty Northwest Insurance Corporation (Liberty), was represented by Mr. Larry W. Jones. No trial transcript has been prepared.
Exhibits: Exhibits 1 through 3 were admitted without objection.
Witnesses and Depositions: Claimant, his wife (Ingeborg Cheetham), and Dr. Keith R. Weeks were sworn and testified. The parties also agreed to the Court's consideration of the depositions of claimant, Dr. John N. Kalbfleisch, Dr. Keith R. Weeks, claimant's mother (Lois Cheetham), claimant's father (Robert Cheetham, Sr.), and Dr. Stephen P. Hiro.
Issues Presented: The issues presented for decision as restated by the Court are:
At trial, claimant withdrew his request for a penalty.
Having considered the Pretrial Order, the testimony presented at trial, the demeanor and credibility of the witnesses, the depositions, the exhibits, and the arguments of the parties, the Court makes the following:
1. Claimant is 51 years old, is married to Ingeborg Cheetham, and lives in West Glacier, Montana.
2. Claimant's occupation is as a heavy equipment and crane operator.
3. On August 7, 1996, claimant was working as a heavy equipment operator for Hawkeye Construction (Hawkeye). On that day, Hawkeye was engaged in constructing oil containment ditches around transformers of an electric substation in Bigfork, Montana. The purpose of the ditches was to catch and contain any oil leaking from the transformers. To assure containment, the ditch was sprayed with a foam type, impermeable material. To assure that the ditch was in fact impermeable, Hawkeye was required to fill the ditches with water to check for leaks.
4. On August 7th, claimant and other Hawkeye employees were checking for leaks by pumping water into the ditch from the adjacent Flathead River. Another employee was having difficulty starting one of the pumps, which was gas powered, and flooded the engine. Claimant went to help.
5. Claimant attempted to start the pump by placing one of his feet on the pump and pulling the starter cord upward, much as one would do when starting a lawnmower. He pulled the cord between 50 and 70 times over the next 20 to 30 minutes, finally starting the pump.
6. The foregoing occurred at approximately noon. The temperature was in the neighborhood of 100 degrees Fahrenheit.
7. As claimant stood up from his efforts he felt lightheaded, felt tightness in his chest, and began having difficulty breathing.
8. Claimant managed to call his physician, Dr. John Kalbfleisch, who felt he was having a heart attack. A hospital helicopter was dispatched to pick up claimant.
9. Claimant was helicoptered to Kalispell Regional Hospital, where Dr. Keith P. Weeks, a cardiologist, diagnosed an aortic aneurysm. (Ex. 3 at 1-2.) Claimant was then transported to St. Patrick Hospital in Missoula, where Dr. Stephen P. Hiro, who is board certified in cardiothoracic surgery, diagnosed an "[a]cute dissection of the ascending aorta with moderate aortic insufficiency." (Ex. 3 at 45.) Dr. Hiro operated, resecting the aorta (operatively removing a portion of it) and inserting a dacron aortic graft. (Id. at 45- 47.)
10. For the technically curious, aortic dissection is described in a medical article set out as Exhibit 2. In simple terms, it is a tear in the inner wall of the aorta, which allows hemorrhage of blood into the medial layer of the vessel, thereby compromising circulation and frequently causing death. Approximately 2,000 cases occur annually in the United States, so it is an uncommon condition. (Ex. 2 at 3.)
11. At the time claimant's aortic dissection occured, Hawkeye was insured by Liberty.
12. Claimant submitted a claim for compensation to Liberty alleging that his condition was work related. (Ex. 1.) Liberty denied the claim.
13. Aortic dissection occurs in persons that have a preexisting degeneration of the media (middle wall)(1) of the aorta. (Ex. 2; Weeks Dep. at 29; Hiro Dep. at 15.) "Degeneration of the aortic media is believed to be a prerequisite for the development of aortic dissection." (Ex. 2 at 4.) A tear then occurs in the inner wall (intima) of the vessel, allowing hemorrhage into the media. (Ex. 2; Weeks Dep. at 8-9; Hiro Dep. at 12-13.)
14. There are two mechanisms involved in the actual dissection. (Ex. 2 at 3; Weeks Dep at 28; Hiro Dep. at 12.) The physicians treating claimant were unable to determine which mechanism occurred in claimant, thus further discussion of the mechanisms is unnecessary.
15. Weakening of the media is due to genetic disease, such as Marfan syndrome, and/or chronic high blood pressure. (Ex. 2 at 4; Weeks Dep. at 17; Kalbfleisch Dep. at 17; Hiro Dep. at 11, 18-20.) Dr. Hiro testified that "the overwhelming reason to have dissection in America is long-standing hypertension." (Hiro Dep. at 21.) On the other hand, the aortas of most hypertensive persons do not dissect. (See Weeks Dep. at 20 and Finding 10.)
16. Three doctors testified regarding causation of the claimant's condition. Dr. Weeks testified by deposition and also at trial. Both Dr. Kalbfleisch and Dr. Hiro testified by deposition. As previously stated, Dr. Weeks is a cardiologist and Dr. Hiro is a cardiothoracic surgeon. Dr. Kalbfleisch is a family practitioner.
17. Dr. Hiro and Dr. Weeks agreed that claimant suffered from aortic degeneration which contributed to his dissection. (Weeks Dep. at 17, 30, 31; Hiro Dep. at 10.) Dr. Weeks felt it was likely due in part to genetic factors. (Weeks Dep. at 17, 36.) Dr. Hiro opined that his "best assumption" was that, despite a lack of medically documented long-term hypertension, it was due to long-standing hypertension (Hiro Dep. at 23.) Both agreed that the preexisting degeneration made him susceptible to aortic dissection. (Weeks Dep. at 17; Hiro Dep. at 19-21 and passim.)
18. Both Dr. Weeks and Dr. Kalbfleisch testified that, in their medical opinions, the August 7th aortic dissection was precipitated by claimant's strenuous attempts to start the pump engine, which significantly raised claimant's blood pressure. (Weeks Dep. at 18, 31; Kalbfleisch Dep. at 15.) Dr. Weeks testified:
(Weeks Dep. at 18.) Both Dr. Weeks and Dr. Kalbfleisch further opined that claimant's work that day contributed 51% or more to the dissection when compared to claimant's preexisting aortic disease. (Weeks Dep. at 21-23, 35, 38; Kalbfleisch Dep. at 15.)
19. While Dr. Weeks pointed out there is no precise scientific way to prove the role of exertion in the dissection, or measure the relative contributions, in percentages, of claimant's preexisting disease and his claimant's work on August 7th, or to make such determinations with 100% assurance, he was firm in his conclusion that to a reasonable degree of medical probability claimant's work on the 7th contributed 51% or more to the dissection. He based his opinion on his clinical experience and training. Specifically, he testified:
(Weeks Dep. at 21-23, 35, 38.)
20. Exhibit 2, which is a medical article recognized as authoritative by both Drs. Weeks and Hiro, provides some support for the proposition that exertion may in some cases precipitate an aortic dissection. The article notes one study which found an association between strenuous physical exertion and emotional stress and the onset of dissection in 14% of the cases studied.
21. Dr. Hiro was unable to opine that exertion was a 51% contributing cause to claimant's dissection. However, he agreed that claimant's work on August 7th elevated his blood pressure and acknowledged that the exertion may well have been the immediate trigger for the dissection. He testified:
(Hiro Dep. at 23-24, 26, 32-33.)
22. Dr. Hiro was no more qualified than Drs. Weeks or Kalbfleisch to render an opinion on causation. He noted that as a surgeon he thinks of dissections in terms of "trying to correct the problem, not necessarily the etiology of it." (Hiro Dep. at 12; see also id. at 31-32.) .
23. After considering all of the medical testimony and the medical article on aortic dissection, I am persuaded that the claimant's exertion at work on August 7, 1996, precipitated or triggered his aortic dissection. While the dissection would not have occurred absent his underlying degeneration of the aortic media, I am further persuaded that the actual dissection is 51% attributable to his overexertion and is therefore compensable.
24. Liberty's denial of this claim was not unreasonable. The compensability of the claim was reasonably debatable and the case presents difficult medical and legal questions.
1. The 1995 version of the Workers' Compensation Act applies in this case. Buckman v. Montana Deaconess Hospital, 224 Mont. 318, 321, 730 P.2d 380, 382 (1986).
2. Section 39-71-119, MCA (1995), specifies the criteria which must be met for a work-related injury to be compensable. The general criteria which must be met are set out in the first two subsections, as follows:
All of the criteria are met. Claimant suffered internal physical harm and that harm was verified by objective medical findings. At the time of the incident he was engaged in unusually strenuous activity over a period of approximately 20 continuous minutes on a single day. An identifiable part of the body -- the aorta -- was affected.
In cases of cardiovascular incidents, section 39-71-119, MCA (1995), sets out some additional criteria that must be met for the incident to be compensable. Subsection (5) provides:
The first paragraph -- subsection (5)(a) -- has been in the Act since 1987. 1987 Montana Laws, ch. 464, § 3. However, as originally enacted in 1987, the subsection used the word "harm" instead of the word "condition." The latter word was substituted into the section in 1995. 1995 Montana Laws, ch. 243, § 6.
The Montana Supreme Court interpreted subsection 5(a) in Gaumer v. Montana Department of Highways, 243 Mont. 414, 795 P.2d 77 (1990). As already noted, at the time of the decision, the section used the word "harm" rather than "condition," reading:
Focusing on the word "harm," as then used in the section, the Court concluded that the harm referred to in the statute was the specific harm resulting from the industrial accident and not the claimant's "cumulative condition." The Court reasoned as follows:
Id. at 419, 795 P.2d at 80.
Gaumer was decided before the substitution of "condition" for "harm" and thus provided the historical antecedent to the revision. In substituting the word "condition" for harm, the legislature plainly intended to effect a change in the subsection, and by the use of the word condition, plainly intended to require proof that the industrial accident was the primary cause of claimant's cumulative condition. There appears no alternative construction: construing the subsection in accordance with Gaumer would render the amendment meaningless, and is disfavored. Foster v. Kovich, 207 Mont. 139, 144, 673 P.2d 1239, 1243 (1983) (holding here is a presumption that the legislature, in adopting an amendment to a statute, intended to make some change in existing law) (citing Montana Milk Control Board v. Community Creamery Co., 139 Mont. 523, 366 P.2d 151 (1961)). The Court cannot conceive of any alternative constructions.
On the other hand, this Court is cognizant of the Supreme Court's statement in Gaumer concerning the impossibility of proving primary cause if a claimant is required to prove that the industrial accident was the primary cause of her overall condition. The legislature apparently felt otherwise, and I am persuaded that the statement merits reexamination.
In amending subsection (5), the legislature added the requirement that the claimant prove that the accident "is responsible for more than 50% of the physical condition." § 39-71-119(5)(b), MCA (1995). While apportionment and percentage allocations have until present been foreign to the Montana Workers' Compensation Act, they have been part of the Occupational Disease Act since 1959. Specifically, section 39-72-706, MCA, provides for apportionment between occupational and non-occupational factors in determining the benefits due on account of an occupational disease. I conclude that in amending section 39-71-119(5), MCA, the legislature intended that a similar allocation be done. In the case of the amendment, however, the allocation determines compensability, i.e., no compensation if the accident contributed 50% or less to the condition, rather than the amount of compensation.
Apportioning among causative factors does not require absolute certainty, scientific precision, or laboratory verification. Indeed, any of these three requirements would render apportionment impossible and apportionment statutes meaningless. Human beings do not live in a laboratory. It has been the Court's experience in reviewing and adjudicating occupational disease cases that apportionment opinions are based on the physician's clinical experience and judgment, not on any scientific yardstick. Indeed, subsection (5)(b) specifically calls for such determination "to a reasonable degree of medical certainty," which means only more medically likely than not.
In this case, two physicians testified that to a reasonable degree of medical certainty, the aortic dissection the claimant suffered was triggered by an episode of high blood pressure, which in turn was caused by claimant's strenuous work pulling the cord on the pump engine over a 20 to 30-minute period. Their opinions find some support even in Dr. Hiro's testimony that the claimant's work on August 7th "may very well" have triggered the dissection on that day. (Hiro Dep. at 33.) Indeed, Dr. Hiro's reluctance to reach the conclusions reached by the other doctors appears to be philosophically rooted. He pointed out that the causation issue appears to be more in the legal than the medical realm. Addressing one of the lawyers, he said:
(Hiro Dep. at 33.) The flip side of Dr. Hiro's contention is that the dissection would not have occurred at the place and time it did but for the claimant's overexertion. The dilemma this created is, where you have two coalescing "but fors," which is the predominant cause? The legislature deferred to physicians for the answer. Two physicians testified persuasively that the predominant factor, on a greater than 50% basis, was the overexertion. Thus, the requirements of section 39-71-119(5), MCA (1995), have been met and claimant's aortic dissection is compensable.
Claimant withdrew his request for a penalty at the time of trial. However, he did not withdraw his request for attorney fees. Attorney fees may be awarded only upon a finding that the insurer's denial of the claim was unreasonable. § 39-71-611, MCA (1995). Since I have found the issues in this case are reasonably debatable, since Dr. Hiro's opinions provide support for the insurer's position, the request for attorney fees is denied.
1. The claimant's strenuous work on August 7, 1996, in the course and scope of his employment with Hawkeye Construction was the primary cause of his aortic dissection. His injury (the aortic dissection) is compensable and the insurer shall pay appropriate temporary total and medical benefits.
2. No determination is made concerning the amount of benefits payable as that amount was not an issue. The Court retains continuing jurisdiction to resolve any dispute that may arise between the parties concerning the amount.
3. Claimant is not entitled to attorney fees.
4. This JUDGMENT is certified as final for purposes of appeal pursuant to ARM 24.5.348.
5. Any party to this dispute may have 20 days in which to request a rehearing from these Findings of Fact, Conclusions of Law and Judgment.
DATED in Helena, Montana, this 11th day of June, 1997.
c: Mr. David
1. The aorta wall consists of three layers. The innermost layer is the intima. The middle is the media. The outermost part of the wall is the adventitia. (Ex. 2 at 3.)
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