Horizon Air Industries, Inc. v. Davis-Warren

337 P.3d 959, 266 Or. App. 388, 2014 Ore. App. LEXIS 1415
CourtCourt of Appeals of Oregon
DecidedOctober 15, 2014
Docket1003965; A150352
StatusPublished
Cited by4 cases

This text of 337 P.3d 959 (Horizon Air Industries, Inc. v. Davis-Warren) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Horizon Air Industries, Inc. v. Davis-Warren, 337 P.3d 959, 266 Or. App. 388, 2014 Ore. App. LEXIS 1415 (Or. Ct. App. 2014).

Opinion

GARRETT, J.

Horizon Air Industries, Inc., petitions for reversal of an order by the Workers’ Compensation Board. At issue on review is the board’s conclusion that claimant, a flight attendant, suffered a compensable injury arising from an incident aboard one of employer’s aircraft. We conclude that substantial evidence supports the board’s findings that (1) claimant suffered an “injury” during the course of her employment and (2) that injury “required medical services,” specifically a “test of pressure with hyperbaric oxygen.” We, therefore, affirm the board’s order.

The facts are not disputed. Claimant was working a Horizon Air flight from Bozeman, Montana, to Seattle, Washington. Five to 10 minutes into the flight, claimant could not take a normal breath. Moments later, the pilot notified the flight attendants that the plane was failing to fully pressurize as it ascended. Claimant felt like she was going to pass out. Another flight attendant, Johnston, also felt light-headed. Claimant sat down on the floor and asked for oxygen. Claimant and Johnston took breaths from an oxygen tank. The captain lowered the flight altitude, and there were no further pressurization problems during the flight. For the remainder of the flight, however, claimant continued to have trouble with breathing, dizziness, and nausea. Passengers were never informed of the cabin-pressurization problem. Most of the passengers seemed “okay” during the flight, although claimant saw three passengers who were nauseous and one who actually vomited. Johnston saw one passenger who looked “sickly.”

Upon arrival in Seattle, claimant, who was scheduled to work a flight to Canada, instead returned home to Portland (as a passenger). Claimant’s husband picked her up at the Portland airport because she did not feel able to drive. Claimant’s symptoms continued to worsen. According to her husband, claimant seemed “lethargic” and complained of headaches, faintness, and difficulty walking and breathing. When the couple arrived home in Forest Grove, claimant got in her own vehicle and drove to the Tuality Forest Grove Hospital. After being evaluated there, claimant was driven by ambulance to Providence Hospital.

[391]*391Dr. Meghashyam examined claimant at Providence. Meghashyam asked about the incident aboard the flight and conducted a number of tests on claimant. Meghashyam testified that claimant “executed most of the commands well,” but also noted that claimant was somewhat unsteady and had difficulty walking in a straight line. During the past-pointing test, which required claimant to reach out and touch a particular object, Meghashyam observed that claimant’s hand would “go a little bit past [the object] and then come back.” Meghashyam determined that claimant’s symptoms may have been caused by the “changes in cabin pressure” that claimant described. Meghashyam consulted with the Divers Alert Network at Duke University and Travis Air Force Base to arrive at a treatment plan. Meghashyam determined that, based on claimant’s symptoms and the “change in ambient pressure” that claimant had experienced, the standard of care would be a “test of pressure” by way of hyperbaric treatment. In total, claimant received five treatments in a hyperbaric chamber during a five-day hospital stay. Afterward, claimant felt significantly better but still complained of vertigo, short-term memory loss, and nausea. Claimant’s “discharge diagnosis” was recorded by Dr. Barone as “[decompression illness secondary to being in a depressurized plane at approximately 10,000 feet.” Claimant’s coworker, Johnston, never sought medical treatment following the pressurization incident. He did, however, report “feeling spacey” even after arriving in Seattle and decided to call in sick for his next scheduled day of work.

Claimant was subsequently treated by Dr. Braddock and Dr. Donahue, who diagnosed claimant with confusion, vertigo, and hypoxia. At employer’s request, Dr. Burton examined claimant. Burton, who is board certified in occupational medicine and medical toxicology, also examined the incident report completed by the pilot. That report stated that the cabin pressure warning light came on as the plane reached approximately 12,000 feet. When the plane reached 18,000 feet, the “cabin altitude” was indicated at 14,000 feet for approximately five minutes. The cabin altitude decreased as the plane descended. The cabin pressure warning light turned off approximately 15 to 20 minutes [392]*392after it had come on. Burton concluded that the data failed to substantiate that a “decompression event” occurred on the flight. Burton concluded that claimant’s symptoms were “psychogenic” in origin and unrelated to any workplace activity. He stated further that it was not plausible that claimant experienced hypoxia at a cabin altitude of 14,000 feet lasting 15 minutes.

Employer denied the claim for workers’ compensation benefits. After a hearing, an administrative law judge (ALJ) upheld employer’s denial on the basis that “claimant did not actually sustain any medical condition” from the flight. In reaching that conclusion, the ALJ found it particularly important that none of the doctors who examined claimant was able to testify that it was medically probable that the pressurization incident caused claimant to suffer from a specifically diagnosable medical condition. The ALJ noted, for example, that Meghashyam had testified that it was merely “possible,” rather than “probable,” that claimant had suffered decompression illness arising from an injurious work event. As the ALJ explained, claimant did not suffer a compensable injury because the “persuasive medical evidence” established that, “at the ‘cabin altitude’ air pressure to which claimant was exposed, for the duration that she was exposed, there was no possibility that she or another healthy person in her position would develop hypoxia, decompression illness, cerebral edema, or any other medical condition.”

The board reversed, concluding that, under the circumstances, claimant was not required to prove that her exposure to low pressure resulted in a specifically diagnosable medical condition. The board relied heavily on K-Mart v. Evenson, 167 Or App 46, 1 P3d 477, rev den, 331 Or 191 (2000) (holding that a compensable injury was established where the claimant was exposed to HIV at the workplace, requiring testing and prophylactic treatment). Pertinent portions of the board’s ruling are excerpted below:

“Dr. Meghashyam, who is board-certified in hyperbaric medicine, concluded that claimant’s exposure to abnormal cabin pressurization and resulting symptoms required medical services, specifically a ‘test of pressure with hyperbaric oxygen.’ We find that sufficient, under [K-Mart], to establish a compensable injury.
[393]*393“In reaching that conclusion, we recognize that Dr. Burton opined that the incomplete cabin pressurization did not require medical services. That opinion was premised on his belief that ‘altitude pressure of 14,000 feet [was] not capable of causing injury or harm’ in ‘a healthy person.’ Dr. Meghashyam, however, persuasively explained that there was no such bright line cutoff for incurring an injury due to a change in ambient pressure, but rather that responses to such pressure changes were ‘variable.’ As an expert in hyperbaric medicine ***, we defer to Dr. Meghashyam’s opinion over that of Dr. Burton.
“We disagree with the employer’s assertion that Dr.

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Bluebook (online)
337 P.3d 959, 266 Or. App. 388, 2014 Ore. App. LEXIS 1415, Counsel Stack Legal Research, https://law.counselstack.com/opinion/horizon-air-industries-inc-v-davis-warren-orctapp-2014.