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In re Thompson

Court of Appeals of Oregon

December 3, 2014

In the Matter of the Compensation of Roger J. Thompson, Claimant.
v.
ROGER J. THOMPSON, Respondent SAIF CORPORATION and CLACKAMAS COUNTY FIRE DISTRICT #1, Petitioners,

Argued and Submitted May 15, 2014,

Workers' Compensation Board. 1006391.

Julie Masters argued the cause and filed the briefs for petitioners.

Nelson R. Hall argued the cause and filed the brief for respondent.

Before Sercombe, Presiding Judge, and Tookey, Judge, and Schuman, Senior Judge.

OPINION

Page 164

[267 Or.App. 358] SERCOMBE, P. J.

In this workers' compensation case, SAIF Corporation and employer Clackamas County Fire District #1 seek judicial review of an order of the Workers' Compensation Board finding that claimant's heart condition was compensable as an occupational disease under ORS 656.802(4), commonly known as the firefighter's presumption.[1] The board concluded that, under that statute, claimant was entitled to a presumption that his heart condition resulted from his work as a firefighter, and SAIF, the insurer of claimant's employer, did not overcome that presumption by presenting " clear and convincing medical evidence that the cause of the condition or impairment is unrelated to [his] employment." On review, SAIF argues that the board erred in applying that standard of proof to the evidence SAIF presented because the board's sole basis for discounting that evidence was its failure to identify an alternative cause for claimant's condition. As we explain below, we agree and, accordingly, reverse.

At the outset, we review the undisputed legal principles that govern the firefighter's presumption. Under ORS 656.802(4),[2] if a firefighter becomes disabled or impaired as a result of a " cardiovascular-renal disease" or other specified conditions, then the condition is presumed to have resulted from employment as a firefighter, if (1) the claimant has worked as a firefighter for at least five years, and (2) a medical examination shows that the condition did not preexist the employment. Once the presumption is established, the trier of fact must give it the " value of evidence" ; the [267 Or.App. 359] presumption binds the trier of fact if no contrary evidence is presented. Wright v. State Acci. Ins. Fund, 289 Or. 323, 331, 613 P.2d 755 (1980). The employer or insurer can overcome the presumption, however, by presenting " clear and convincing medical evidence that the cause of the condition or impairment is unrelated to the firefighter's employment." ORS 656.802(4). Proof by " clear and convincing evidence" generally means that " the truth of the facts asserted [is] highly probable." SAIF v. Brown, 159 Or.App. 440, 445, 978 P.2d 407 (1999) (internal quotation marks omitted).

Page 165

Here, claimant experienced muscular discomfort in his right chest and neck while he was off duty. He sought medical treatment, and two treating cardiologists diagnosed a myocardial infarction--commonly known as a heart attack--related to coronary artery atherosclerosis. One of those cardiologists successfully treated claimant with angioplasty and stenting of the left anterior descending coronary artery. Claimant, who had been a firefighter for nearly 20 years, later filed a claim for the heart attack as a work-related occupational disease under ORS 656.802(4). SAIF denied the claim, asserting that it had clear and convincing evidence that claimant's condition was unrelated to his employment as a firefighter. Claimant requested a hearing before an administrative law judge (ALJ).

Based on evidence presented at the hearing,[3] the ALJ found that claimant was entitled to the presumption that his heart condition was work related: He had worked as a firefighter for nearly 20 years, and a prehire physical examination and subsequent examinations did not reveal any evidence of cardiovascular disease or impairment that preexisted that employment.

In an effort to rebut the presumption, SAIF presented a medical evaluation and testimony from Dr. Semler, a cardiologist and professor of cardiovascular disease who examined claimant. Semler explained that atherosclerosis is a hardening of the arteries that decreases blood flow to [267 Or.App. 360] the heart muscle, eventually resulting in a heart attack. According to Semler, " the exact etiology" --the cause or set of causes--of atherosclerosis " is not definitely known," but the consensus among cardiologists is that the condition is related to multiple risk factors, including aging, diabetes, obesity, elevated cholesterol, high blood pressure, tobacco use, sedentary life style, and family history.[4] Those particular risk factors, Semler explained, are sometimes not present in cases of a heart attack caused by atherosclerosis. He confirmed that those risk factors were not present in claimant's case, though he did state that " [a]therosclerosis is more in keeping with the aging process in [claimant's] case."

Semler concluded that claimant's atherosclerosis and heart attack were not related to claimant's work as a firefighter. Specifically, Semler explained that physical and emotional stress related to claimant's work activity as a firefighter did not contribute to the atherosclerosis that caused his heart attack. Comparing atherosclerosis to other types of coronary disease, such as arrhythmias and cardiomyopathy, Semler explained that the medical community recognized physical and emotional stress as contributing factors to some types of arrhythmias and cardiomyopathies, but that there was no valid scientific evidence that physical or emotional stress contributed to atherosclerosis. Semler also referenced claimant's report that the onset of the heart attack did not occur when he was fighting a fire or otherwise under physical or emotional stress. Semler further explained that the literature did not reveal " any scientific ...


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