Williams v. Gates, McDonald & Co.

• Decision Date: 26 November 1985
• Citation: 709 P.2d 712,300 Or. 278
• Court: Oregon Supreme Court
• Parties: In the Matter of the Compensation of Betty L. Williams, Claimant. Betty L. WILLIAMS, Petitioner on Review, v. GATES, McDONALD & COMPANY, Respondent on Review. WCB 80-10620; CA A32940; SC S31896.

Page 712

709 P.2d 712

300 Or. 278

In the Matter of the Compensation of Betty L. Williams, Claimant Betty L. WILLIAMS, Petitioner on Review, v. GATES, McDONALD & COMPANY, Respondent on Review.

WCB 80-10620; CA A32940; SC S31896.

Supreme Court of Oregon In Banc.

Argued and Submitted Oct. 1, 1985.

Decided Nov. 26, 1985.

James L. Edmunson, Eugene, argued the cause for petitioner on review. With him on the petition was Malagon & Associates, Eugene.

Cynthia S.C. Shanahan, Portland, argued the cause for respondent on review. With her on the response were Schwabe, Williamson, Wyatt, Moore & Roberts, and William H. Replogle, Portland.

Kevin L. Mannix, Portland, filed an Amicus Curiae brief on behalf of Ass'n of Workers' Compensation Defense Attys. With him on brief was Lindsay, Hart, Neil & Weigler, Portland.

Robert K. Udziela, Portland, filed an Amicus Curiae brief on behalf of Oregon Trial Lawyers Ass'n. With him on brief was Pozzi, Wilson, Atchison, O'Leary & Conboy, Portland.

ROBERTS, Justice.

Claimant seeks review of a Court of Appeals' decision holding that the long-term consequences resulting from an operation that was required as a preliminary procedure to the operation necessitated by the industrial injury were not compensable. We hold that the consequences are compensable, and therefore, reverse.

The following is taken from the Court of Appeals opinion:

"Claimant was injured in March, 1978, while working for Owens Illinois Corporation in a job which required repetitive lifting. She saw a series of physicians after the injury. They prescribed conservative treatment, but she continued to have severe pain in her right shoulder and arm. She was ultimately referred to Dr. Misko, a neurosurgeon, who recommended a discectomy and spinal fusion at the C5-6 level. In his preoperative examination he noticed a bruit 1 in her right carotid artery. He also learned that she had had an incident of amaurosis, or temporary blindness, in her right eye. He attributed that incident to the carotid artery defect. It would be necessary to retract, or move, the right carotid artery in the course of the spinal fusion surgery. The condition which Misko found indicated that there might be unreasonable dangers in doing so with the artery in its current condition. Misko therefore first performed a right carotid endarterectomy, removing the plaque buildup from inside the artery, in September, 1979. He then performed the discectomy and fusion in October, 1979.

"Soon after the endarterectomy, claimant began noticing a loss in her short-term memory; she also experienced other symptoms, which were ultimately diagnosed as mild dementia.2 The medical evidence on the cause of claimant's mental problems is not wholly satisfactory. We conclude, however, on the basis of our review of the evidence, that the most probable explanation is that claimant suffered either a mild stroke or a temporary loss of oxygen to her brain in the course of or as a result of the endarterectomy. We therefore find that claimant's memory loss and dementia were caused by that operation.

In summary, the Court of Appeals found that the endarterectomy was necessarily performed to permit the discectomy, which all parties agree was necessary to treat the injury, and that the endarterectomy caused the "mental problems" identified in the Court of Appeals' decision. We accept those findings. Wheeler v. Boise Cascade, 298 Or. 452, 457, 693 P.2d 632 (1984); Sahnow v. Fireman's Fund Ins. Co., 260 Or. 564, 491 P.2d 997 (1971).

The Court of Appeals then found that there was no causal connection between the compensable injury and the endarterectomy apparently because of a statement by Dr. Misko that "it is...