Lewis v. Workers' Compensation Appeals Board

Opinion

In August 1968 Lewis, a television serviceman, then 45, suffered orthopedic injuries in a work-related automobile

Lewis’s widow filed two claims of entitlement to death benefits. In one, she claimed the pain suffered by the injured employee as a consequence of the automobile accident produced stress which accelerated his arteriosclerosis and caused his death from heart disease four years later. In the other, she claimed the work performed by Lewis on resumption of his employment after the accident increased his pain and thereby created stress, which accelerated his arteriosclerosis and led to his death from heart disease.

On the basis of lay testimony and two conflicting medical opinions, Compensation Judge Daraban accepted the claim that Lewis’s death was compensable by reason of pain and stress resulting from the accident. He rejected the claim for compensation based on stress caused by Lewis’s employment subsequent to his accident. The Worker’s Compensation Appeals Board ordered reconsideration, appointed an independent medical examiner, and referred both claims to Compensation Judge Trovillion for further hearings. The latter took further medical testimony and reported back to the board. On the basis of the evidence before both judges, the board found Lewis’s death not compensable under either claim.

The Supreme Court, citing Lamb v. Workmen’s Comp. Appeals Bd., 11 Cal.3d 274 , 281-283 [ 113 Cal.Rptr. 162 , 520 P.2d 978 ], granted a hearing, transferred the cause to this court, and directed a writ of review to issue.

The Evidence

The claim based on decedent’s employment subsequent to his accident was decided adversely to claimant, and that decision is not controverted here. The claim based on decedent’s pain resulting from his orthopedic injuries reasons that this pain caused stress, which in turn accelerated the progress of his underlying arteriosclerotic heart disease and led to his death. We review the relevant evidence.

In an automobile intersection collision in August 1968 Lewis suffered bruises, contusions, headaches, dizziness, fainting sensations, and pains of the cervical spine, lumbar spine, shoulder, and elbow. He returned to

Subsequent to the award (and hence during the last year of his life) Lewis was regularly seen by orthopedists, his hospital physiotherapy continued, sometimes on a thrice:weekly basis, and his prescribed medication included “Indocin,” an anti-inflammatory and analgesic agent. In March 1972, he complained to his physician that despite his therapy he felt he was “retrogressing.” At the time of his death Lewis worked 40 hours a week, with Sundays and Mondays off. Sunday, 30 July 1972, was a day of inactivity. On Monday he drove from Pomona to Los Angeles to pick up a check and accompanied his children to the dentist. In the afternoon he went swimming. About 10 p.m. his wife observed him gasping for breath and called for assistance. He was pronounced dead on arrival at the hospital.

An autopsy ascribed death to occlusive coronary atherosclerosis with severe pulmonaiy congestion. The immediate mechanism of death was a period of coronary insufficiency lasting minutes or hours, which caused fluid to back into the lungs and led to arrythmia or ventrical fibrillation. The autopsy disclosed that certain of his coronary arteries were 50 percent occluded. At the time of his death Lewis was 6 feet, 1 inch tall, and weighed 240 pounds. The only earlier indication of cardiovascular history was a 1942 diagnosis of hypertension while in the military service.

Four lay witnesses and two physicians testified in the first proceeding. Judge Daraban summarized the lay testimony thus:

“The testimony of Lena Pock reveals that the decedent formerly worked for her and her husband as a service man from October of 1958 until March 1, 1967, when they went out of business. The decedent never missed a day from work and he was proud of his good health. After he

“Rudi Pock testified that during the time the deceased worked for him, he thought the deceased was an athletic and well-put together man, and that he handled equipment weighing up to 700 pounds by himself and set it up at the customer’s. After the 1968 automobile accident, he remembers the deceased telling him that he was disappointed in his progress and that he wasn’t snapping out of it. There was a rather definite spring in his step that was no longer there. His talk and speech were more measured and that extra sparkle that he had before was not quite there anymore subsequent to the accident.

“Grace Lewis Johnson testified that she had been a medical secretary for 22 years and was a sister of the decedent. They had a close relationship and they confided in each other. She testified that ‘he was not a complainer, but from the time of his accident until the time of his passing, he was not able to do what he normally did before. He couldn’t maneuver because of pain . . . she knew that he was getting therapy and taking Indocin for medication. The condition of her brother’s health became progressively worse in the last year after his accident. . . . This was not the same Edwin she knew ... As far as she knew he bent with pain; he couldn’t lift and she knew of it. He limped after the accident and this never did leave him. He became one-sided in her eyes. She saw her brother taking pain medication and muscle relaxant.’

“The widow, Dolores S. Lewis, testified that ‘he was in good health until August 24, 1968 . . . After that time he complained of pain to his back and had complaints to his left hand and left leg. He had these complaints eveiy night .... Since his injury of August 24, 1968, physically he was always tired. He constantly complained of back pain and had to get up in the evening to urinate frequently. When he would get up in the morning he had to shake his left leg. He couldn’t get up like he used, and would have to sit 10 to 15 minutes on the side of the bed before he could get up. Medication as prescribed by the doctor was taken and she saw him taking it twice a day ..; She rubbed his back and had a traction device which was prescribed for him, and it was used every night.”

Dr. Alan Frank, for the claimant, reported: “It is apparent that Mr. Lewis died of complications of long standing and progressive coronary artery sclerosis. It is my opinion that the pain, disability and emotional stress that Mr. Lewis experienced as a result of his work incurred injuries materially aggravated and accelerated the process of sclerosis within his coronaiy arteries hastening the onset of coronary artery insufficiency.”

As summarized by Judge Daraban, Dr. Frank testified: “The injury on August 24, 1968 resulted in a chronic back problem and emotional stress was generated by that injury. This aggravated, and accelerated the process of sclerosis in his coronary arteries and it made him susceptible to coronary insufficiency. Before his death he had an episode of coronary insufficiency lasting minutés or perhaps hours, resulting in ventricular arrhythmia and irregularity of the heart, resulting in death. The emotional stress here resulted from pain and discomfort and his disability causing anxiety and a sense of frustration. This is common to such back injuries and these feelings are to be considered stressful. They are perceived by the brain and trigger a series of neurological and endocrine changes, resulting in an aggravation of underlying coronary arteriosclerosis. Pain is different from emotional stress, but worry and apprehension will have the same effect in the end on the neuro-glandular endocrine system. The human body can react only in a certain amount of limited ways to stress by an outpouring of adrenalin and stimulation of the adrenal cortex occurs, putting adrenal and corticosterone compounds into the system ...”

With particular reference to pain as stress, he testified: “I don’t know of any publication that would imply, indicate pain per se, just the sensation of pain as being a factor responsible for causing or aggravating coronary heart disease. But when one reads this literature, one realizes that many of the studies are talking about situations that are associated with pain. Then they, the studies talk about emotional stress, but pain is emotionally stressful. I don’t think we can get away from the fact that the perception of pain is emotional stress, just like the apprehension of anxiety, the feeling of anxiety, or the feeling of worry, or the feeling of depression, or the feeling of frustration, or the feeling of working under a tight time schedule. All of these things are emotional stress, and although the types of emotional stress that we can perceive are several, the ways in which the body mechanism can react to emotional stresses are limited.”

Dr. Alvin Markovitz, for defendants, reported: “Coronary is a metabolic process which develops over the years; it is generally asymptomatic, and there is no evidence that at any time did he have chest pain or angina. If the pain and discomfort was considered to have aggravated his heart over the years, there is a question of how much pain was actually present. I would have expected him to have heart symptoms long before, and to have heart symptoms during episodes of pain. No such symptoms are indicated in the history. I would therefore feel that the statement that the patient’s work-related injury contributed to his death would be a rather nebulous opinion without any real scientific basis to support it.”

His testimony, as summarized by Judge Daraban, included these points:

“He heard Dr. Frank’s theory of stress and he agrees with some aspects and disagrees with others. Dr. Frank’s theory is speculative and is not based upon facts. There are factors such as nervousness, shaking, clotting mechanisms, increasing of platelets which can cause changes in the arteries by increasing free fatty acids and causing a myocardial infarction. Chronic stress experienced by a lawyer, doctor or policeman is felt by the AMA to not cause metabolic changes. Adrenal excess results in hyperventilation, shakiness, nervousness, outpouring of some kind of compound and such cases would be obvious to all.

“He doubts if pain here would have accelerated arteriosclerosis. It is his opinion that the way the decedent died had no relationship to his auto accident in 1968. Pain can cause stress resulting in the pumping of adrenalin into the system. However, he does not accept the theory that every stress affects the system in this manner.... There was development of arteriosclerosis over 25-30 years of his life. He would eliminate pain as being a factor causing arteriosclerosis'.”

Judge Daraban accepted the medical opinion of Dr. Frank and concluded that pain resulting from the accident caused stress which aggravated and accelerated the process of sclerosis that brought about decedent’s death. At the same time he rejected the claim that decedent’s employment subsequent to the accident produced stress which contributed to his death. There was thus a square finding that decedent’s stress was pain-induced and not work-induced.

Thereafter the board granted reconsideration for the purpose of obtaining additional medical evidence and referred the cause to Judge Trovillion.

The independent medical examiner appointed by the board, Dr. Weldon Walker, director of the White Memorial Cardiac Laboratory, clinical professor of internal medicine at U.S.C. Medical School and Loma Linda University, and formerly chief cardiologist at Walter Reed Army Hospital, reported: “It is generally believed that death from coronary arteiy disease is the end result of progressive narrowing of the coronary arteries related to a metabolic process which goes on over a period of many years. Most of this time the disease is totally asymptomatic and death or disability results when this progressive narrowing of the arteries to the heart reach a critical stage of narrowing. There are many known predisposing factors which increase the risk of developing coronary heart disease. The major known provable risk factors are: 1) Elevated lipid levels such as cholesterol and triglycerides circulating in the blood stream. 2) High blood pressure. 3) Cigarette smoking. 4) Overweight. 5) Diabetes. 6) Family histoiy of coronary heart disease. 7) Male sex. 8) Advancing age. 9) Family history of Possible controversial risk factors predisposing to coronary heart disease are: 1) Stress. 2) Coffee drinking. 3) Drinking soft water.”

On stress his report stated:

“The relationship of stress to death from coronary heart disease is an extremely controversial conflicting and difficult subject and should be considered in two areas. 1) The relationship of stress to acute myocardial infarction. 2) The relationship of chronic, long-wearing stress to the development of coronary atherosclerosis over a period of years .....

“I am unaware of any evidence that chronic stress has anything to do with the formation of chronic coronary heart disease, except as through the mechanism of the above listed known risk factors that predispose to coronary heart disease... .

“It seems highly unlikely that patient’s multiple injuries on August 24, 1968 contributed significantly either to his progressive atherosclerosis of the coronary arteries or to his sudden death from probable cardiac arrythmia and acute coronary insufficiency. It is far more likely that this was the natural consequences of the previously enumerated risk factors and it is not considered that the prior injury was the proximate cause of the patient’s death. Neither does it seem reasonable that work subsequent to this injury contributed to the disease process leading to this patient’s death.”

In his testimony, as reported by Judge Trovillion, Dr. Walker said:

“He concedes that it is a very controversial area of medicine relating to the causative effect of emotional stress or strain on the progression of arteriosclerotic heart disease. There are established known risk factors which he has detailed in his report. In addition there are possible risk factors, and this would include emotional stress. The amount of stress is very difficult to measure quantitatively when dealing with a specific individual. To summarize, he feels that stress may be a lesser risk factor, and even this is medically disputed by the experts.

“He concedes that a San Francisco medical group, subsequently identified as Dr. Friedman and his association, ‘pushes’ the idea that stress is a causative factor in the progression of heart disease. The theory of this group includes the concept that emotional stress may aggravate of increase other known risk factors. However, in his opinion there is no good statistical proof of this. In the absence of scientific data to corroborate the stress theory, he would consider stress as a veiy minor risk factor. However, he concedes that the medical profession just does not know all the answers....

“It is known that arteriosclerosis often starts in early childhood and progresses throughout life.

“He is not aware of any valid medical studies on the possible causative role of intractable pain and worry. In cases of multiple fractures, though, there is no incident of an increase in heart deaths. There is one risk factor which all physicians would agree was a contributing cause to the progression of heart disease, i.e., cigarette smoking, although even here we probably do not know all of the medical mechanism of cigarette smoking and heart disease. He doubts that plaque is actually laid down during smoking because it is known that if one quits smoking, there is statistical improvement from the first day. The more probable mechanism of the role of cigarette smoking would be related to possibly the nicotine effect or vasal constriction or some other mechanism.

“He did review the medical records, and he assumed that decedent was suffering pains secondary to his orthopedic injuries, and this is confirmed by the fact that he was taking medication for pain.

“He assumes that pain would be stressful. Nonetheless, there is no medical evidence that pain increases the incident of heart attacks.

“He expressly distinguishes this type of case [from] a death which occurs from an acute coronary insufficiency after exposure to sudden

unaccustomed physical exertion which he definitely believes would have a causative role.”

Dr. Frank again testified and, as reported by Judge Trovillion, said in part: “While there is no study as to the causative role of pain per se, the literature refers to studies dealing with pain on the assumption that pain creates stress. It is obvious to the witness that pain is emotionally stressful, and in his opinion produces neuro-glandular mechanisms in the blood which aggravate or accelerate the underlying disease process.”

Dr. Walker, recalled, declared that “the majority opinion of physicians is that stress is not one of the major risk factors in heart disease cases. Most qualifying cardiologists would rate this a possible risk factor only.”

On reconsideration of both claims the board accepted the medical opinion of Dr. Walker as based on medical probabilities and rejected the opinion of Dr. Frank as based on theoretical and unproved possibilities. The board found that Lewis’s death on 31 July 1972 was not caused, aggravated, or precipitated by his automobile accident in August 1968. It adopted and affirmed Judge Daraban’s finding that Lewis’s employment subsequent to his accident did not contribute to his death.

Discussion

In Lamb v. Workmen’s Comp. Appeals Bd., supra, 11 Cal.3d 274 , 280-281, the court resolved a stress-induced heart-disease case in favor of the widow and stated four principles of general applicability:

1. Although the employee bears the burden of proving that his injury was sustained in the course of his employment, the established legislative policy is that the Workmen’s Compensation Act must be liberally construed in the employee’s favor (Lab. Code, § 3202), and all reasonable doubts whether an injury arose out of employment are to be resolved in favor of the employee.

2. Although the board is empowered to resolve conflicts in the evidence, to make its own credibility determinations, and upon to reject the findings of the referee and enter its own findings on the basis of its review of the record, nevertheless, any award, order, or decision of the board must be supported by substantial evidence in the light of the entire record. The foregoing standard'is not met by simply

3. As a general rule the board must accept as true the intended meaning of evidence both uncontradicted and unimpeached.

4. When a referee’s finding of compensable injury is supported by solid, credible evidence, it is to be accorded great weight by the board and should be rejected only on the basis of contrary evidence of considerable substantiality.

The Lamb opinion emphasized that stress need be only a “contributing cause” of death (11 Cal.3d at p. 281) and that the amount of stress “inherent” in a situation is not significant so long as stress has “in fact” been exerted upon the particular workman (11 Cal.3d at pp. 282-283).

In analyzing the cause at bench we first observe that it differs procedurally from Lamb, in that the board was not merely reviewing the work of its referee or reevaluating evidence that had previously been considered by a referee. On the contrary, the board was evaluating the cause in the first instance, for the evidence before it had never been considered in full by any referee. Judge Daraban heard part of the evidence and made certain findings. Thereafter the board found a need to secure additional evidence, which was subsequently obtained and reported upon by Judge Trovillion. Both reports then came before the board, which thus became the first body to evaluate and pass upon the totality of the evidence. Hence, unlike the situation in Lamb, there was no referee’s report or finding to be accorded great weight, for no referee had had the opportunity to pass upon the entire evidence. Under Labor Code section 5906 the board possesses specific authority to direct the taking of additional evidence, an authority it exercised in this cause. In view of the controversial nature of the medical issue, the board is to be commended and not faulted for obtaining additional evidence on the medical problem before it. (Zozaya v. Workmen’s Comp. Appeals Bd., 27 Cal.App.3d 464 , 468 [ 103 Cal.Rptr. 793 ]; Solomon v. Workmen’s Comp. Appeals Bd., 24 Cal.App.3d 282 , 286 [ 100 Cal.Rptr. 899 ].) In this instance the board did so by securing the opinion of a distinguished cardiologist to supplement the two conflicting partisan opinions it already had.

We also note that the facts of the cause were not in dispute and that the testimony of the lay witnesses was accepted by all experts, viz. that subsequent to the time of his accident decedent suffered pain and

The board’s orders are affirmed.

Compton, J., and Beach, J., concurred.

Petitioners’ application for a hearing by the Supreme Court was denied May 26, 1976.