Pittsburgh Testing Laboratory v. Keller

• Decision Date: 28 January 1983
• Docket Number: No. 17756,17756
• Citation: 657 P.2d 1367
• Parties: PITTSBURGH TESTING LABORATORY and Liberty Mutual Insurance Company, Plaintiffs, v. Marion B. KELLER, Widow of Sylvan R. Keller, Deceased, and the Industrial Commission of Utah, Defendants.
• Court: Utah Supreme Court

Page 1367

657 P.2d 1367

PITTSBURGH TESTING LABORATORY and Liberty Mutual Insurance Company, Plaintiffs, v. Marion B. KELLER, Widow of Sylvan R. Keller, Deceased, and the Industrial Commission of Utah, Defendants.

No. 17756.

Supreme Court of Utah.

Jan. 28, 1983.

Richard H. Moffat, John L. Young, Salt Lake City, for plaintiffs.

Ralph R. Tate, Jr., David L. Wilkinson, Salt Lake City, for defendants.

REPLACEMENT OPINION

DURHAM, Justice:

Pittsburgh Testing Laboratory and Liberty Mutual Insurance Company (plaintiffs) have filed this writ of review to set aside an order of the Industrial Commission which awarded Marion B. Keller, widow of Sylvan R. Keller, workmen's compensation death benefits. The order directed the plaintiffs to pay Marion Keller $52,104 plus medical expenses in accordance with the statutory fee schedule, and the statutory funeral allowance of $1,000. Plaintiffs seek reversal of that order or, in the alternative, an apportionment of the benefits to be paid to Mrs. Keller between the plaintiffs and the "second injury fund." See U.C.A., 1953, § 35-1-68, (1979 Supp.).

Sylvan Keller was employed by Pittsburgh Testing Laboratory as a structural steel inspector. At the direction of his employer, Mr. Keller made an inspection tour of the Weber College Special Events Center on August 29, 1978. He was accompanied by Mr. Hamp, an employee of Weber College, who testified before the administrative law judge concerning his and Mr. Keller's activities during the inspection.

During the morning, they performed a visual inspection of the structures immediately above the arena floor. In the afternoon, they moved up to the top level of the Special Events Center. They were able to walk in an area 3-5 feet in height which was immediately below the outer roof. They were required to crawl through a series of wooden A-frames, the tops of which were attached to the roof and the bottoms of which supported the structure upon which they walked. The building is basically round and they entered on one side and began to move in a circle around the perimeter. Mr. Hamp estimated that the inside temperature was 20-40? above the outside temperature, placing it in a range of 100-125? . He described the area in which they moved as very warm and extremely stuffy. He said that they occasionally stopped at small openings in the structure in order to get a breath of fresh air. After two hours in this area, Mr. Hamp testified, their clothes were "wringing wet" and they were slowing down just to catch their breath. Mr. Keller experienced particular difficulty in breathing and stopped at a point where he found some fresh air leaking into the rafter space. Mr. Hamp moved on in a futile effort to find another exit, and by the time he finally concluded that they could only exit the way they had come in, Mr. Keller was physically unable to travel that distance. Paramedics were called and they cut a hole in the ceiling in order to remove Mr. Keller, who at that point had been in the enclosed area for nearly three hours. Oxygen was administered to Mr. Keller and, after resting in one of the offices of the Special Events Center, he drove himself back to Salt Lake City. He had complained to Mr. Hamp of being hot, tired, weak and short of breath, but had not complained of any particular pain.

Mrs. Keller testified that over the next three days Mr. Keller exhibited exhaustion, was unable to engage in any activity and frequently requested cold drinks. She found him sitting up in bed the morning of September 2 experiencing severe chest pains and took him to Holy Cross Hospital. In the medical history provided by Mr. Keller to a doctor at Holy Cross Hospital, he stated that he had experienced chest pains while in the attic of the Special Events Center but had no nitroglycerin with which to relieve it. He also stated that in the three days that followed, the pain occurred 10-15 times a day and was precipitated by progressively less exertion. During this time, he had not mentioned any pain to his wife.

In 1965, Mr. Keller had experienced an anterior myocardial infarction followed by exertional angina. He was hospitalized in Hawaii in 1973 for a suspected acute myocardial infarction and after that he experienced stable angina pectoris 1-3 times a day which was relieved by nitroglycerine. Upon his admission to Holy Cross Hospital in September of 1978, he was diagnosed as having an acute interior wall myocardial infarction. Further testing revealed severe coronary artery disease of long-standing which was treated three weeks later by extensive coronary bypass surgery and removal of a ventricular aneurysm. Mr. Keller's recovery from the surgery was incomplete and he was later diagnosed to be suffering from pulmonary disease and gallbladder disease, which resulted in continuing hospitalization. After experiencing progressively more severe congestive heart failure, plus pump failure and kidney failure, he developed bacteriemia and died in September of 1979.

A hearing was held before the administrative law judge at which Mr. Hamp and Mrs. Keller testified, and Mr. Keller's medical records were introduced into evidence. The matter was then referred to a medical panel. See U.C.A., 1953, § 35-1-77 (1979 Supp.). The medical panel's report did not link Keller's heart attack of September 2, 1978, with the stress he had experienced in the ceiling of the Special Events Center four days earlier. Mrs. Keller objected to the findings of the medical panel and introduced the testimony of Dr. Frank Yanowitz, Chief of Cardiology, LDS Hospital in Salt Lake City. Dr. Yanowitz testified that the stress experienced in the ceiling of the Special Events Center affected Mr. Keller's heart and this subsequently led to the heart attack which he experienced 3-4 days later. After reviewing the evidence, including the testimony and opinions of the medical panel and Dr. Yanowitz, the administrative law judge made the following order on February 10, 1981:

The Administrative Law Judge adopts the findings of Dr. Frank Yanowitz as his own and finds that the decedent's death on September 22, 1979, was directly related to the events at the Dee's Special Events Center on August 29, 1978, results of which produced a coronary insufficiency which eventually led to the deceased's myocardial infarction on September 2, 1978, and ultimately resulted in his death on September 22, 1979.

On appeal to the Industrial Commission, the order of the administrative law judge was affirmed and the plaintiffs filed this writ of review.

We have recently had the opportunity to review the many authorities which define the scope of review in Industrial Commission cases and we have reaffirmed the limitations on this Court's inquiry:

[The reviewing court's inquiry is] whether the Commissions' findings are "arbitrary and capricious," or "wholly without cause" or contrary to the "one [inevitable] conclusion from the evidence" or without "any substantial evidence" to support them. Only then should the Commission's findings be displaced.

Sabo's Electronic Service v. Sabo, Utah, 642 P.2d 722, 725 (1982) (quoting Kaiser Steel Corp. v. Monfredi, Utah, 631 P.2d 888, 890 (1981)). In order to award compensation, the Commission must determine that an accident has occurred and that there is a causal connection between the accident and the injury claimed. It is the second step in this determination which is called into question by the plaintiffs in this case. ¹ Our comment in Sabo, concerning a back injury, is equally applicable to the questions generated by Mr....