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Cheetham v. Liberty Northwest Insurance Corp.

Court of Workers Compensation of Montana

June 11, 1997

ROBERT CHEETHAM, JR. Petitioner
v.
LIBERTY NORTHWEST INSURANCE CORPORATION Respondent/Insurer for HAWKEYE CONSTRUCTION Employer.

          FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT

          MIKE McCARTER JUDGE.

         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 preexisting 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.

         Topics:

Constitutions, Statutes, Regulations and Rules: Montana Code Annotated: section 39-71-119(5)(a), MCA (1995). 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. 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." Where two physicians, one a cardiologist, credibly testified claimant's aortic dissection was more than 50% attributable to his episode of high blood pressure, which in turn was caused by strenuous work activities, the condition is compensable.
Injury and Accident: Causation. 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. 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." Where two physicians, one a cardiologist, credibly testified claimant's aortic dissection was more than 50% attributable to his episode of high blood pressure, which in turn was caused by strenuous work activities, the condition is compensable.
Injury and Accident: Primary Cause. 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. 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." Where two physicians, one a cardiologist, credibly testified claimant's aortic dissection was more than 50% attributable to his episode of high blood pressure, which in turn was caused by strenuous work activities, the condition is compensable.
Injury and Accident: Unexpected Strain or Injury. 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. 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." Where two physicians, one a cardiologist, credibly testified claimant's aortic dissection was more than 50% attributable to his episode of high blood pressure, which in turn was caused by strenuous work activities, the condition is compensable.
Medical Conditions (by specific condition): Aortic Dissection. 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. 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." Where two physicians, one a cardiologist, credibly testified claimant's aortic dissection was more than 50% attributable to his 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:

1. Whether claimant's employment was the primary cause of a dissecting aortic aneurysm he suffered on August 7, 1996. § 39-71-119(5), MCA (1995).
2. Whether claimant is entitled to attorney fees.

         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:

         Findings of Fact

         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 ...


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