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Giese v. Safeway Stores

October 12, 1972

GIESE, APPELLANT,
v.
SAFEWAY STORES, RESPONDENT.



Appeal from Circuit Court, Clackamas County. P. K. HAMMOND, Judge.

Allen T. Murphy, Jr., Portland, argued the cause for appellant. With him on the brief were Green, Richardson, Griswold & Murphy, Portland.

Charles R. Holloway, III, Portland, argued the cause for respondent. With him on the brief were Tooze, Kerr & Peterson, Portland.

Before Schwab, Chief Judge, and Langtry and Fort, Judges. Langtry, J., wrote the opinion.

Langtry

LANGTRY, J.

Claimant appeals from a judgment that a coronary occlusion or thrombosis, resulting in a myocardial infarction, suffered on the job was not materially contributed to by claimant's work activity. The hearing officer had found that the work activity was a material contributing factor, and the Workmen's Compensation Board had reversed that finding.

On the day claimant suffered the heart attack he started work at his job as a meat cutter at 7 a.m. The attack came about 55 minutes later. His job was to cut sirloin tips from beef hindquarters hanging by hooks set on rollers on an overhead track in a meat processing plant. Evidence was that the tip is usually "pulled" from the quarter with two or three strokes of a sharp knife, but that it can be cut in one continuous stroke by the expenditure of considerable strength and energy, even in cold, hard meat such as was being processed. The claim is based upon the contention that claimant had been urged by a fellow workman to speed his work up by doing the one-stroke cut, and that he had been doing it continuously at the rate of one and a half to two cuts per minute for 15 or 20 minutes with expenditure of much energy, immediately before the attack occurred. The fellow workman testified that he remembered when claimant became ill, but did not remember theat he had urged the speed-up, or cutting with one stroke. However, he did not testify that it did not happen, agreeing that such occurrences

were common and that it would have occurred without his remembering about it.

Two heart specialists, Drs. Rogers and Sutherlin, testified. A deposition was taken from a general practitioner, Dr. Gray, who attended claimant upon his admission to the hospital on the date of the heart attack. The report of Dr. Griswold (professor of cardiology at the University of Oregon Medical School) is in the record. Drs. Rogers and Sutherling had viewed a motion picture taken sometime afterward of ordinary tip cutting on the line in question. Our understanding of Drs. Rogers' and Sutherlin's testimony, respectively considered as a whole, is that in the opinions of each the ordinary activity, or several of the described one-stroke cuts would not have been such stress as to have been a contributing cause of the thrombosis, but that continuous one-stroke cust with expenditure of great energy could have been such a cause.

Dr. Gray was of the opinion that the work activity was a material factor. However, he based his opinion on the history he had taken, and his noted were that claimant informed him that he had been doing his usual work - "lifting sides of beef." It is undisputed that such information was erroneous.

Dr. Griswold's report was that in his opinion " * * * the work activity * * * particularly cutting off * * * of tip * * * in one swoop did contribute * * * . He [claimant] states that * * * this single stroke was unusual * * * ." The report does not disclose what information Dr. Griswold had about whether the one-stroke activity had been continuous or isolated.

The variety of opinions we have before us makes

it important to determine, if possible, just what claimant's activity had been preceding the attack.

He told Dr. Gray on the day of the attack that he had been lifting sides of beat. At the time he was very sick and quite apprehensive. It is understandable that he may not have related events with accuracy. We do not know just what he told Dr. Griswold, with whom he consulted nine months later, about ...


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