Norris v. State Acc. Ins. Fund
| Decision Date | 06 December 1976 |
| Citation | 27 Or.App. 623,557 P.2d 61 |
| Parties | In the Matter of the Compensation of William J. NORRIS, Claimant, Appellant, v. STATE ACCIDENT INSURANCE FUND, Respondent. |
| Court | Oregon Court of Appeals |
Raymond Conboy, Portland, argued the cause for appellant. On the brief were D Richard Hammersley and Pozzi, Wilson & Atchison, Portland.
Kevin L. Mannix, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were Lee Johnson, Atty. Gen., and W. Michael Gillette, Sol. Gen., Salem.
Before SCHWAB, C.J., and FORT and LEE, JJ.
In this workmen's compensation coronary case the referee upheld denial of compensation; the Board reversed the referee; the circuit court reinstated the referee's decision. Claimant appeals.
Claimant, a 42-year-old fireman, was employed as a fire truck driver. He began his 24-hour shift on January 25, 1975 at 7 a.m. At 12:48 p.m. that day the fire department received a false alarm; claimant drove the fire truck. Upon return to the station, claimant found that he did not feel good and was experiencing aching in his legs, arms and chest. The pain persisted for an hour and claimant lay down. Later that day the pain subsided and claimant completed his shift at 7 a.m. on the 26th. By that time he was not experiencing any symptoms.
Claimant was in the process of moving a three-piece sectional davenport at about 9 a.m. on the 26th when he experienced chest pains. He was taken to the hospital where he was admitted at 1:00 p.m. His condition was diagnosed as a myocardial infarction. He remained in the hospital for two weeks.
Prior to the January 25 work incident, claimant had experienced some pains but none similar to those suffered during his return from the false alarm. Claimant had received periodical physical examinations, including EKGs, which were normal. Claimant was slightly overweight and had smoked a pack a day of cigarettes since he was 18.
Claimant's treating physician, Dr. Tarro, who had performed four prior physical examinations of claimant, reported by letter dated August 5, 1975 to claimant's counsel that:
'* * *
'In view of the fact that the patient was on-the-job when this coronary insufficiency syndrome occurred, one has to consider his job as a materially contributing factor.'
SAIF's investigator, however, had previously contacted Dr. Tarro and made the following notation:
At the hearing before the referee on August 13, 1975, Dr. Tarro testified:
'Q You may have already answered this question, Doctor, but based upon reasonable medical probability, if Mr. Norris had never become a fireman, how long delayed in his life span would his first symptom of coronary artery disease have been delayed?
'A I can't answer that.
'Q You can't say it would have been delayed one second, can you?
'A No, sir.'
Respondent produced reports of three physicians; none of whom had examined claimant. Two of the doctors (one of whom was the head of the Division of Cardiology of University of Oregon Health Sciences Department of Medicine) reviewed claimant's relevant medical records and concluded that the evidence did not show a work-related medical problem but did strongly suggest that the infarction was precipitated by moving the furniture. It appears, though the evidence does not positively show, that the third doctor also reviewed claimant's medical records; he concluded that there was no relationship between claimant's heart attack and his employment.
The only witnesses who appeared before the referee were claimant and his personal physician, Dr. Tarro.
Claimant's first assignment of error is that the trial court incorrectly concluded that the evidence rebutted the presumption of ORS 656.802 which provides:
'(1) As used in ORS 656.802 to 656.824, 'occupational disease' means:
'* * *
'(b) Death, disability or impairment of health of firemen of any political division who have completed five or more years of employment as firemen, caused by any disease of the lungs or respiratory tract, hypertension or Cardiovascular-renal disease, and resulting from their employment as firemen.
'(2) Any condition or impairment of health arising under paragraph (b) of subsection (1) of this section shall be Disputably presumed to result from a fireman's employment; provided, however, that any such fireman must have taken a physical examination upon becoming a fireman, or subsequently thereto, which failed to reveal any evidence of such condition or impairment of health which preexisted his employment.' (Emphasis supplied.)
We construed this statute in Pflughaupt v. SAIF, 26 Or.App. 77, 552...
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