City of Eugene v. Carolyn McCann

2 To establish the existence of an "occupational disease" that is compensable

3 under the Workers' Compensation Law, a claimant ordinarily "must prove that

4 employment conditions were the major contributing cause of the disease." ORS

5 656.802(2)(a). In some circumstances, however, firefighters do not have the burden to

6 prove causation. Instead, the "firefighters' presumption" deems certain medical

7 conditions to presumptively have been caused by employment when those conditions are

8 suffered by individuals who have worked as firefighters for at least five years:

9 "Death, disability or impairment of health of firefighters of any

10 political division who have completed five or more years of employment as

11 firefighters, caused by any disease of the lungs or respiratory tract,

12 hypertension or cardiovascular-renal disease, and resulting from their

13 employment as firefighters is an 'occupational disease.' Any condition or

14 impairment of health arising under this subsection shall be presumed to

15 result from a firefighter's employment. * * * Denial of a claim for any

16 condition or impairment of health arising under this subsection must be on

17 the basis of clear and convincing medical evidence that the cause of the

18 condition or impairment is unrelated to the firefighter's employment."

ORS 656.802(4) (emphasis added).1 19

20 This case requires us to determine the meaning of the term "cardiovascular21

renal disease" as it is used in ORS 656.802(4). The Workers' Compensation Board

22 interpreted that term as referring to "an impairment of the body or any of its components

23 that interrupts or modifies the heart and blood vessels." (Emphasis omitted.)

1 "The firefighters' presumption was added to ORS 656.802 in 1961. The

proponents intended to give relief to firefighters because statistical studies indicated

firefighters were much more likely to suffer from heart and lung diseases due to exposure

to smoke and gases under strenuous conditions." Wright v. SAIF, 289 Or 323, 328, 613

P2d 755 (1980) (citations omitted).

2

1 Consequently, the board ruled, claimant--a firefighter--proved that she had an

2 occupational disease simply by establishing that she suffered from a condition that

3 affected the function of her heart by causing it to beat too slowly, even if the underlying

4 condition was a "nervous system disorder," rather than a disease of the heart itself. On

5 review, employer contends that "cardiovascular-renal disease" does not "encompass just

6 any disease that may have symptoms in the heart"; rather, "[t]he disease itself must be of

7 the heart, vessels and kidneys." Although we do not fully adopt employer's proposed

8 interpretation of "cardiovascular-renal disease," we agree with employer that the board's

9 interpretation of that term erroneously conflates symptoms and diseases, thus expanding

10 the definition of "cardiovascular-renal disease" to encompass more than the legislature

11 intended. Accordingly, we reverse and remand.

12 The pertinent historical facts are undisputed and we take them primarily

13 from the ALJ's factual findings, which the board adopted, and from the board's order on

14 review. Claimant is a physically fit firefighter. She plays rugby and soccer, and she has

15 a history of "numerous concussions" that may have resulted in short-term memory loss.

16 In December 2006, claimant vomited heavily, lost consciousness, and experienced

17 seizure-like activity after drinking several glasses of wine. A neurologist who examined

18 claimant soon after that event noted that "claimant had a history of chronic bradycardia,"

i.e., a slow heartbeat, "but had no prior episodes of syncope," i.e., fainting.2 19 Results from

2 Bradycardia is "[s]lowness of the heartbeat, usually defined (by convention) as a

rate under 50 beats/min." Stedman's Medical Dictionary 232 (27th ed 2000). Syncope is

"[l]oss of consciousness and postural tone caused by diminished cerebral blood flow."

Id. at 1745.

3

1 EEG and MRI testing were within normal limits.

2 Several cardiologists also examined claimant, including Dr. Ashley, who

3 reported that claimant had experienced additional episodes of "near syncope where she

4 felt like she was going to pass out." Dr. Ashley and her partner, Dr. Reddy, evaluated

5 claimant repeatedly in 2007. In March 2008, both of those physicians signed a letter that

6 stated, in part:

7 "[Claimant] is a patient in Oregon Cardiology since December of 2006.

8 She has been treated for a number of conditions, the most dominant of

9 which is a chronic vagal syndrome manifest by [symptomatic] bradycardia,

10 syncope and palpations. Although the exact underlying etiology of her

11 symptoms are unclear, there is little doubt that she has cardiac

12 manifestations dominated by symptomatic bradycardia now, although

13 previously manifest by syncope.

14 As another doctor later explained, the word "vagal" refers to the vagus nerve, which

15 "comes down from the brain through the skull and into the lungs, stomach and the right

16 atrium predominantly." The vagus nerve is "not part of the structural anatomy of the

17 heart," but it produces chemicals that activate the heart.

18 Letters and deposition testimony from several physicians revealed that,

19 although they used varying terminology to refer to claimant's condition (including "vagal

20 syndrome," "vasovagal syncope," "neurocardiogenic (vaso vagal) syncope," and

21 "dysautonomia,"), they all agreed that the condition related to claimant's nervous system

22 signaling her heart to beat too slowly. As Dr. Reddy explained, "bradycardia is a

23 symptom of dysautonomia," in which "the brain slows down the heart excessively."

24 At least three doctors opined that claimant's heart is sound. Dr. Ashley

25 reported in early 2007 that claimant had a strong and healthy heart. Dr. Ashley later

4

1 testified at deposition that she had ruled out cardiovascular disease as a possible

2 diagnosis. Dr. Girod, an infectious disease specialist who had looked for evidence of

3 myocarditis (and found none), noted that claimant's echocardiogram showed that she had

4 "essentially normal heart function." Dr. Semler, a cardiologist who reviewed claimant's

5 records, reported that claimant had "no signs of heart disease, peripheral vascular disease,

myocarditis or infectious heart disease."3 6

7 Relatedly, multiple physicians explained that claimant's dysautonomia is

8 not a cardiovascular disease. Dr. Ashley stated that claimant's low heart rate was a

9 "function of the nervous system" that only "resulted in cardiovascular effects."

10 (Emphasis added.) Dr. Reddy similarly opined that claimant's dysautonomia is not a

11 cardiovascular process. Dr. Semler agreed, stating that the vagus nerve is not part of the

12 heart, but only activates the organ, comparing the relationship between the nerve and

13 heart to the relationship between a television and its remote control.

14 One physician, Dr. Kron, disagreed. Dr. Kron, a board-certified cardiac

15 electrophysiologist, opined that neurocardiogenic syncope "is a cardiovascular disease of

16 the nervous system in the heart," which involves "the brain, the heart [and the] blood

17 vessels that are all integrated in a feedback loop." Because cardiologists see and treat the

18 condition, he asserted, it "falls within the scope of cardiovascular disease." Dr. Semler

3 As described by the ALJ, myocarditis is a viral illness that causes an inflammation

of the muscular walls of the heart. Claimant initially submitted a claim for echoviral

myocarditis, reflecting an early diagnosis of her condition. Later testing suggested that

claimant did not suffer from myocarditis, and claimant no longer pursues a claim

associated with that condition.

5

1 disagreed with Dr. Kron's description of claimant's condition, stating that "the heart is

2 just an innocent bystander" of the nervous system disorder. Instead, Dr. Semler "agreed

3 that the heart was affected by the disorder of the autonomic nervous system in the same

4 way that a pinched nerve in the lumbar spine would result in radicular pain in the foot."

5 Claimant had a pacemaker implanted in April 2008. Dr. Reddy explained

6 that a pacemaker can treat a slow heart rate, which is "the symptom of dysautonomia,"

7 but it does not help the underlying problem itself. After claimant received the

8 pacemaker, Dr. Reddy released her for all normal recreational and occupational activities.

Claimant filed a claim for autonomic dysfunction, which employer denied.4 9

10 The claim was heard by an ALJ, who agreed with employer that claimant's dysautonomia

11 was not a "cardiovascular-renal disease" for purposes of the firefighters' presumption

12 because it did not "cause any pathology to her heart--nor frankly to her blood vessels or

13 nerves." Because claimant's claim was based entirely on application of the firefighters'

14 presumption, the ALJ affirmed employer's denial of her claim.

15 Claimant requested review before the Workers' Compensation Board,

16 which reversed the portion of the ALJ's order that upheld employer's denial of her

17 dysautonomia claim. As explained above, the board interpreted the statutory term

18 "cardiovascular-renal disease" to mean "an impairment of the body or any of its

19 components that interrupts or modifies the heart and blood vessels." (Emphasis omitted.)

20 Applying that definition, the board found that claimant's condition was a "cardiovascular-

4 As noted, claimant initially submitted a claim for a different condition, echoviral

myocarditis, but no longer pursues a claim for that condition.

6

1 renal disease," for purposes of the firefighters' presumption, because it modified or

interrupted the performance and function of her heart and vascular system.5 2 The board

3 also concluded that employer had not overcome the presumption that claimant's condition

4 resulted from her employment. See ORS 656.802(4) ("Denial of a claim for any

5 condition or impairment of health arising under this subsection must be on the basis of

6 clear and convincing medical evidence that the cause of the condition or impairment is

7 unrelated to the firefighter's employment."). Accordingly, the board reversed the ALJ's

8 order. Employer seeks judicial review in this court.

9 On review, we determine the meaning of the statutory term

10 "cardiovascular-renal disease" as a matter of law, not as a question of fact. Karjalainen

11 v. Curtis Johnston & Pennywise, Inc., 208 Or App 674, 681, 146 P3d 336 (2006), rev

12 den, 342 Or 473 (2007) (construing the statutory term "arthritis or an arthritic

13 condition"). In doing so, we examine the statutory text in context, "along with any

14 helpful legislative history and, if necessary, other aids to construction." Young v. State of

15 Oregon, 246 Or App 115, 119, 265 P3d 32 (2011).

16 Considering solely the statutory text, one might conclude that the term at

17 issue--"cardiovascular-renal disease"--comes into play only when a firefighter suffers a

18 disease of the cardiovascular and renal systems, that is, when the disease is "of the heart,

19 vessels and kidneys," as employer contends. The record in this case includes no

20 indication that claimant suffers from any disease that has a renal component. We decline,

5 One board member dissented, concluding that claimant had "an impairment of her

nervous system" that merely caused "symptoms in her heart."

7

1 however, to resolve the case on that basis. Previous opinions of this court and the

2 Supreme Court implicitly equate "cardiovascular-renal disease" with heart disease,

3 without discussing the significance of "renal" in the statutory term. See, e.g., Wright v.

4 SAIF, 289 Or 323, 332, 613 P2d 755 (1980) (presumption applied to claimant who

5 suffered "both heart related and lung related conditions or impairments of the kind

6 described in the statutes"); Long v. Tualatin Valley Fire, 163 Or App 397, 399-400, 987

7 P2d 1267 (1999), rev den, 330 Or 412 (2000) (characterizing the firefighters'

8 presumption as applying where a firefighter has "heart or lung disease"). Given that we

9 readily can resolve this case on the other grounds discussed below, we decline to decide

10 whether, despite the cases noted above, the term "cardiovascular-renal disease" applies

11 only where a claimant proves that his or her cardiovascular disease has a renal

12 component. Instead we assume, only for purposes of this opinion, that the legislature

intended the term to encompass all cardiovascular diseases.6 13

14 We turn, then, to what it means for a claimant to have a cardiovascular

15 disease. Because the Workers' Compensation Law does not specifically define that term,

16 we look first to dictionary definitions. Webster's defines "cardiovascular" as "of, relating

6 We note that our previous cases did not necessarily read the term "renal" out of the

statute. We may implicitly have construed the term "cardiovascular-renal disease" as

covering both cardiovascular diseases and renal diseases. Conversely, we may have

concluded that the 1961 legislature believed that cardiovascular diseases necessarily had

renal aspects. The legislature considered the statement of at least one physician who

opined that "[t]he ordinary conceptual evaluation of 'heart disease' is actually

cardiovascular-renal disease." Exhibits, House Labor and Industries Committee, HB

1018, Feb 2, 1961 (written statement of Herbert E. Griswold, M.D.). In any event, we

leave resolution of the "renal" question for another day.

8

1 to, or involving the heart and blood vessels." Webster's Third New Int'l Dictionary 338

2 (unabridged ed 2002). It defines "disease" (as pertinent here) as "an impairment of the

3 normal state of the living animal * * * or any of its components that interrupts or

4 modifies the performance of the vital functions * * *." Id. at 648. Medical-dictionary

definitions are similar.7 5

6 Those dictionary definitions of the noun "disease" and the modifying

7 adjective "cardiovascular" can be read together in two ways that carry two very different

8 meanings. First, "cardiovascular" could be read to modify the "impairment" that

9 constitutes the disease. Understood that way, "cardiovascular disease" means

10 "an impairment of the normal state of the heart and blood vessels that

11 interrupts or modifies the performance of the vital functions."

12 (Emphasis added.) Alternatively, one could read "cardiovascular" to modify "the vital

13 functions" whose performance is affected by the underlying impairment:

14 "an impairment of the body, or any of its component parts, that interrupts

15 or modifies the performance of the vital functions of the heart and blood

16 vessels."

17 (Emphasis added.) The board's interpretation of "cardiovascular disease" mirrors the

18 second possible definition set forth above:

19 "Combining [various dictionary] definitions, we conclude that the

20 term 'cardiovascular disease' refers to an impairment of the body or any of

21 its components that interrupts or modifies the heart and blood vessels.

7 For example, Stedman's Medical Dictionary defines "cardiovascular" as "[r]elating

to the heart and the blood vessels or the circulation." Stedman's at 291. It defines

disease, in part, as an "interruption, cessation, or disorder of body function, system, or

organ." Id. at 509.

9

1 "* * * * *

2 "[C]laimant's heart beats too slowly and * * * not enough blood is

3 circulating, which causes her to faint. Thus, claimant's abnormal heart rate

4 impairs the performance of the heart by adversely affecting its ability to

5 function at a rate that is sufficient for good circulation of the blood.

6 Because claimant's slow heart beat modifies the function of her heart and

7 blood vessels, her condition qualifies as a 'cardiovascular disease[.]'"

8 (Emphasis added.)

9 With respect, we believe that the board's interpretation overlooks the

10 statutory context in which the term "cardiovascular-renal disease" is used--a context in

11 which the heart cannot be said to be "diseased" simply because its function, although not

12 its physical health, has been affected by some underlying ailment. We find contextual

13 clues to the meaning of "cardiovascular-renal disease" in three aspects of the Workers'

14 Compensation Law: (1) use of the word "condition," which encompasses "disease," to

15 refer to the body's physical status; (2) the distinction between diseases and symptoms;

16 and (3) inclusion of hypertension among the ailments that trigger the firefighters'

17 presumption.

18 First, although the Workers' Compensation Law does not define the word

19 "disease," it repeatedly uses the word "condition" as an umbrella term that encompasses

20 both diseases and injuries. E.g., ORS 656.012(2)(e). The plain and ordinary meaning of

21 "condition" is "the physical status of the body as a whole or of one of its parts."

22 Webster's at 473 (defining "condition"); see SAIF v. Stephens, 247 Or App 107, 113, __

23 P3d __ (2011) (noting our approval of that definition of "condition"). Considering the

24 definitions of "disease" and "condition" together, we conclude that a "disease" must be an

10

1 impairment of the physical status of the body or one of its parts that interrupts or

2 modifies the performance of the vital functions. The board's definition of "cardiovascular

3 disease" conflicts with our understanding of the term "condition" to the extent it focuses

4 on whether something has affected the heart's function rather than whether the heart's

5 physical status is impaired.

6 Second, the Workers' Compensation Law distinguishes diseases from

7 symptoms. See Young v. Hermiston Good Samaritan, 223 Or App 99, 104-06, 194 P3d

8 857 (2008) (explaining distinction between "conditions" (including diseases) and

9 "symptoms"). Because a symptom generally is not itself a disease, any workable

10 definition of "disease" must, at least for purposes of the Workers' Compensation Law,

11 exclude mere "symptoms," that is, abnormalities in "structure, function, or sensation,

experienced by the patient and indicative of disease."8 12 Stedman's Medical Dictionary

13 1742 (27th ed 2000). Cf. Young, 223 Or App at 101, 107 (radiculopathy, defined by the

14 evidence as "pain that radiates along the course of a nerve root that exits from the spine,"

15 is a symptom, not a condition). Thus, an organ is not diseased merely because its

16 function is affected in a way that indicates the presence of some other, underlying

17 disease. The board's focus on the heart's function--in this case, claimant's slow heart rate-

18 -is inconsistent with the statutory distinction between symptoms and diseases.

19 Third, we also find significance in the word "hypertension" in the statute

8 In some circumstances, a complex of symptoms may itself constitute a disease.

See Georgia-Pacific Corp. v. Warren, 103 Or App 275, 278, 796 P2d 1246 (1990), rev

den, 311 Or 60 (1991). Claimant has not argued, and the board did not conclude, that her

symptoms themselves constitute her disease.

11

that creates the f 1 irefighters' presumption, which covers "any disease of the lungs or

2 respiratory tract, hypertension or cardiovascular-renal disease." ORS 656.802(4). If any

3 underlying condition that affected the function of the heart and blood vessels counted as

4 "cardiovascular-renal disease," the word "hypertension" (high blood pressure) would be

5 superfluous.

6 Our previous decisions also shed light on the correct interpretation of the

7 word "disease," even though we most frequently have discussed its meaning in the

8 context of distinguishing "disease" from "injury." In drawing that distinction, we have

9 reasoned that "diseases are gradual, rather than sudden, in onset." Dynea USA, Inc. v.

10 Fairbanks, 241 Or App 311, 316, 250 P3d 389 (2011). A phenomenon like a slow heart

11 rate is not, itself, a condition that appears gradually. Rather, like other symptoms, it is

12 something that is measured or perceived at a particular point in time. The underlying

13 condition that causes the heart to beat slowly--here, autonomic dysfunction--may be a

14 disease that has a gradual onset, but the resulting bradycardia is not.

15 Taking all of the above factors into consideration, we conclude that

16 "cardiovascular-renal disease" is a physical impairment of the heart or blood vessels,

17 gradual in onset, that interrupts or modifies the performance of the body's vital

functions.9 18 That definition excludes mere symptoms of underlying disease, like modified

19 heart rate, so long as those symptoms do not impair the physical structure of the heart or

9 Again, only for purposes of this opinion, we assume that the term "cardiovascularrenal

disease" covers all cardiovascular diseases, whether or not they have a renal

component.

12

1 blood vessels themselves.

2 The importance of the disease/symptom distinction is highlighted by the

3 logical consequences of defining "cardiovascular-renal disease" so broadly that it

4 encompasses all conditions that affect the heart's function, but not the physical structure

5 of the heart itself. Under the board's definition, any condition that triggered a problem

6 with the heart would count as "cardiovascular disease." Thus, as claimant acknowledged

7 at oral argument, even such conditions as eating disorders, stage fright, or nicotine

8 addiction would qualify as "cardiovascular-renal diseases" if the person who suffered

9 from those conditions experienced a slower or higher heart rate as a result. Such a broad

10 definition of "cardiovascular-renal disease" would conflict with the statutory distinction

11 between diseases and symptoms, and it would expand the firefighters' presumption far

12 beyond what the statutory text and context suggest the legislature contemplated.

13 In short, we disagree with the board's interpretation of the statutory term

14 "cardiovascular-renal disease" for the reasons set forth above. We remand so the board

15 may reconsider the case applying the correct statutory standard.



* * *



See: http://www.publications.ojd.state.or.us/sites/Publications/A146910.pdf

Reversed and remanded.