RONALD MALAM, ) ) Claimant-Appellant, ) ) v. ) No. SD33620 ) STATE OF MISSOURI, DEPARTMENT ) Filed: June 24, 2015 OF CORRECTIONS, ) ) Employer-Respondent. )
APPEAL FROM THE LABOR AND INDUSTRIAL RELATIONS COMMISSION
AFFIRMED
PER CURIAM. On August 12, 2011, Ronald Malam ("Claimant"), a correctional
officer employed by the Missouri Department of Corrections ("Employer"), was involved
in an incident where he was "required to 'take down' an uncooperative inmate." Although
Claimant felt nothing unusual at the time, other than "an adrenaline rush," the incident
started a chain of events that ultimately resulted in a significant amount of hospitalization
and medical treatment for a "hypertensive crisis" suffered by Claimant. The Labor and
Industrial Relations Commission ("the Commission") ultimately found the largest portion
of that medical treatment to be non-compensable under section 287.020 of the workers'
compensation law.1
1 All statutory references to section 287.020 are to RSMo Cum.Supp. 2010. All other statutory references are to RSMo Cum.Supp. 2005.
1 Claimant raises two points on appeal. The first claims that the Commission erred
in finding that Claimant failed to meet his burden of proving that his "accident was the
prevailing factor under [section 287.020.3(1)] in causing [Claimant's] hypertensive crisis"
because his medical expert's report "unambiguously" opined that it was. It further asserts
that the Commission "only considered the medical opinions" and ignored evidence and its
own findings regarding other circumstances surrounding the accident.
Claimant's second point asserts the Commission erred in finding that Claimant
failed to prove that his work accident was the prevailing factor in causing his
hypertensive crisis because "the Commission failed to first determine whether a
compensable injury of any kind occurred, in that a compensable physical and emotional
injury did result from the sudden and extreme stresses of the accident that in turn caused
the need to treat the hypertensive crisis."
Finding no merit in either claim, we affirm the decision of the Commission.
Governing Law and Applicable Principles of Review
We review the findings of the Commission, not those of the Administrative Law
Judge ("ALJ"). Clark v. FAG Bearings Corp., 134 S.W.3d 730, 734 (Mo. App. S.D.
2004). To determine whether Claimant suffered a compensable injury, the Commission
was required to utilize the statutory scheme set forth in section 287.020. Armstrong v.
Tetra Park, Inc., 391 S.W.3d 466, 472 (Mo. App. S.D. 2012). In pertinent part, that
statute provides:
2. The word "accident" as used in this chapter shall mean an unexpected traumatic event or unusual strain identifiable by time and place of occurrence and producing at the time objective symptoms of an injury caused by a specific event during a single work shift. An injury is not compensable because work was a triggering or precipitating factor.
2 3. (1) In this chapter the term "injury" is hereby defined to be an injury which has arisen out of and in the course of employment. An injury by accident is compensable only if the accident was the prevailing factor in causing both the resulting medical condition and disability. "The prevailing factor" is defined to be the primary factor, in relation to any other factor, causing both the resulting medical condition and disability.
(2) An injury shall be deemed to arise out of and in the course of the employment only if:
(a) It is reasonably apparent, upon consideration of all the circumstances, that the accident is the prevailing factor in causing the injury; and
(b) It does not come from a hazard or risk unrelated to the employment to which workers would have been equally exposed outside of and unrelated to the employment in normal nonemployment life.
Section 287.020.2–3 (emphasis added).2
The determination of whether an accident is the "prevailing factor" causing a
claimant's condition is an inherently factual one. Maness v. City of De Soto, 421 S.W.3d
532, 539 (Mo. App. E.D. 2014). Under our standard of review, we "must examine the
whole record to determine if it contains sufficient competent and substantial evidence to
support the award, i.e., whether the award is contrary to the overwhelming weight of the
evidence." Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, 222-23 (Mo. banc
2003).
We do not review issues involving the credibility of witnesses and the weight to
be given to their testimony; instead, we defer to the Commission's determination of all
such issues. Caldwell v. Delta Exp., Inc., 278 S.W.3d 251, 253 (Mo. App. S.D. 2009).
The Commission, as the trier of fact, is free to believe all, part, or none of the evidence
2 Neither party disputes that the requirements of section 287.020.3(2)(b) were satisfied in this case.
3 presented. Mihalevich Concrete Constr. v. Davidson, 233 S.W.3d 747, 755 (Mo. App.
W.D. 2007).
The Evidence
After Claimant's "take down" of the inmate, he and another officer were escorting
the inmate to another location within the prison. While doing so, Claimant began to
notice that he was short of breath, and he "felt like his lungs were filling up." Claimant
went to get a drink of water, and he began to spit up blood. A nurse noticed what was
happening and called an ambulance.
Claimant was transported by ambulance to Texas County Memorial Hospital,
where he lost consciousness. Chest x-rays revealed the presence of a pulmonary edema.
The impression of the treating physician, Dr. Thomas Stubbs, was that Claimant had
"severe pulmonary contusions" and "possibly had aspirated."
Claimant was eventually intubated and transported to Lester E. Cox Medical
Center ("Cox") in Springfield, where he remained unconscious for approximately a week.
During this period, Claimant was evaluated by several doctors. Dr. Timothy Woods, a
pulmonary specialist, noted an abrasion to Employee's left knee, but "no other external
trauma [was] noted." Dr. Woods found, "It does not appear that the patient’s disease
process is related to trauma. It is likely that trauma precipitated the medical processes he
has going on." Dr. Douglas Ham’s impression was "significant congestive heart failure,
pulmonary edema." Dr. Ham further stated, "It is unclear whether this was all related to a
possible cardiac contusion tipping him into the congestive heart failure or whether he
could have also had a pulmonary contusion which worsened his respiratory and cardiac
status or could have been secondary to the stress of the altercation." According to Dr.
4 Mark Anderson, a cardiologist, Claimant was suffering from a "hypertensive crisis" with
acute renal and respiratory failure and that he had hypotension and shock associated with
the hypertensive crisis.3
Claimant ultimately recovered with no permanent disability, and he has since
returned to work. He sought workers' compensation reimbursement from Employer in
the amount of $138,010.15 for medical expenses billed by Cox.4 An ALJ denied his
claim. Claimant appealed that decision to the Commission, which unanimously affirmed
the denial of benefits but modified the award. The Commission found that, although
Claimant had suffered a work-related accident, he had failed to prove that the accident
was the prevailing factor causing his injuries. See section 287.020.
The Commission's Findings
The Commission, unlike the ALJ, concluded that Claimant had suffered an
"accident" pursuant to section 287.020.2. More specifically, it stated:
We conclude that the incident on August 12, 2011, was (1) unexpected, (2) traumatic, (3) identifiable by time and place of occurrence, and (4) produced at the time objective symptoms of an injury caused by a specific event during a single work shift-namely, employee's difficulty breathing and his spitting up blood. We conclude, therefore, that employee suffered an accident.
3 Claimant quotes the Mayo Clinic's website for the definition of hypertensive crisis in his brief. According to that website:
A hypertensive crisis is a severe increase in blood pressure that can lead to a stroke. Extremely high blood pressure — a top number (systolic pressure) of 180 millimeters of mercury (mm Hg) or higher or a bottom number (diastolic pressure) of 120 mm Hg or higher — damages blood vessels. They become inflamed and may leak fluid or blood. As a result, the heart may not be able to pump blood effectively.
MAYO CLINIC, http://www.mayoclinic.org/diseases-conditions/high-blood-pressure/expert- answers/hypertensive-crisis/faq-20058491 (last visited June 19, 2015). Upon admission to Cox, Claimant's blood pressure peaked at 252/140. 4 At the time of Claimant's reimbursement request, Employer/insurer had already paid $6,085.46 in medical aid for Claimant, and Claimant had also received $2,284.95 in temporary disability benefits.
5 With regard to whether Claimant's accident was the prevailing factor causing
Claimant's resulting medical condition, the Commission considered the written reports of
two medical experts. One of these experts, Dr. Anne-Marie Puricelli, had conducted an
independent medical examination of Claimant at Employer's request. In her conclusions,
where she noted Claimant's preexisting hypertension and cardiomyopathy, Dr. Puricelli
opined:
It is my opinion that [Claimant] went into acute hypertensive crisis and developed hemoptysis due to the elevated pulmonary capillary pressure that occurred due to his left ventricular failure secondary to the hypertensive crisis. He did not admittedly sustain any trauma. There was minimal exertion that occurred surrounding the subduing of the inmate. He had not been adequately treated for his hypertension or his cardiomyopathy and he was drinking, admittedly, excessive amounts of fluid per day which, in my opinion, exacerbated both his hypertension and his underlying cardiomyopathy. It is my opinion that none of [Claimant]'s current diagnoses are related to any work event that occurred on August 12, 2011.
The Commission disagreed with Dr. Puricelli's conclusion, however, explaining:
This is because Dr. Puricelli did not have the correct facts; she believed, for instance, that [Claimant] did not fall to the ground during the take down of the inmate. She also based her opinion, in part, on her determination that [Claimant]'s preexisting hypertension was inadequately treated before August 12, 2011, but we find no clear indication in the record that this was the case, and Dr. Puricelli does not explain how or why she believed [Claimant]'s hypertension to have been inadequately treated. [Claimant]'s unimpeached and credible testimony suggests (and we so find) that he was taking medications for hypertension and was regularly seeing a physician for checkups regarding his high blood pressure before August 12, 2011.
The Commission then noted that the only evidence offered by Claimant on this
issue was the written report of Dr. Brent Koprivica, who had conducted an independent
medical examination on behalf of Claimant. In his report, Dr. Koprivica detailed
6 Claimant's medical history and offered medical observations and opinions. As to
causation, Dr. Koprivica opined:
1. [Claimant]'s described work-related incident with the takedown of the offender on August 12, 2011, is felt to represent the direct, proximate and prevailing factor precipitating his hypertensive crisis.
I would like to point out that but for the work injury, it would be impossible to predict that [Claimant] would have developed the hypertensive crisis that has necessitated the care and treatment that followed that event.
2. Clearly, [Claimant] had an underlying hypertensive cardiomyopathy identified as far back as 2005. Nevertheless, the prevailing factor precipitating the specific event were the unexpected emotional and physical stresses associated with restraining the offender.
(Emphasis added). Noting the word "precipitating," as used in section 287.020.2, the
Commission concluded, "While we believe an accident may be both a precipitating and
the prevailing factor causing a compensable injury, this does not appear to be Dr.
Koprivica's opinion in this case. Rather, Dr. Koprivica says the accident was the
prevailing factor that precipitated [Claimant's] hypertensive crisis." The Commission
continued: "Even if we were to credit this opinion from Dr. Koprivica, absent further
explanation as to what Dr. Koprivica meant by choosing those specific words, we simply
are unable to conclude that [Claimant] has proven the requisite degree of causation to
satisfy the requirements of the statute." We find no error in this conclusion.
Analysis
Claimant's arguments to the contrary fail for several reasons. For one, Claimant
ignores the fact that he had the burden of proving causation. "Medical causation, which
is not within common knowledge or experience, must be established by scientific or
medical evidence showing the relationship between the complained of condition and the
7 asserted cause." Gordon v. City of Ellisville, 268 S.W.3d 454, 461 (Mo. App. E. D.
2008) (emphasis added). In such situations,
an injury may be of such a nature that expert opinion is essential to show that it was caused by the accident to which it is ascribed. Where the condition presented is a sophisticated injury that requires surgical intervention or other highly scientific technique for diagnosis, and particularly where there is a serious question of pre-existing disability and its extent, the proof of causation is not within the realm of lay understanding nor—in the absence of expert opinion—is the finding of causation within the competency of the administrative tribunal.
Silman v. William Montgomery & Assoc., 891 S.W.2d 173, 175-76 (Mo. App. E.D.
1995) (citations omitted), overruled on other grounds by Hampton, 121 S.W.3d 220.
"Whether a particular matter is beyond lay understanding has been treated as a question
of law." Bock v. City of Columbia, 274 S.W.3d 555, 562 (Mo.App. W.D. 2008).
Here, Claimant argues that the Commission "only considered the medical
opinions" and, as a result, "overlooked" or "ignored" other evidence. The problem with
this argument is that a "hypertensive crisis" is a sophisticated injury that could be caused
by various factors.5 Further, Dr. Koprivica -- Claimant's own expert -- noted in his
5 The Mayo Clinic’s website (cited by Claimant) provides:
A hypertensive crisis is a severe increase in blood pressure that can lead to a stroke. Extremely high blood pressure — a top number (systolic pressure) of 180 millimeters of mercury (mm Hg) or higher or a bottom number (diastolic pressure) of 120 mm Hg or higher — damages blood vessels. They become inflamed and may leak fluid or blood. As a result, the heart may not be able to pump blood effectively.
Causes of a hypertensive emergency include: • Forgetting to take your blood pressure medication • Stroke • Heart attack • Heart failure • Kidney failure • Rupture of your body's main artery (aorta) • Interaction between medications • Convulsions during pregnancy (eclampsia)
8 review of Claimant's medical records that Claimant "has a very complex history." As
such, the evidence Claimant alleges the Commission ignored or overlooked — adequate
treatment of preexisting conditions, no prior history of hypertensive crisis, and the
circumstances surrounding the accident — is evidence that would be insufficient to
establish that Claimant's hypertensive crisis was directly caused by his work-related
accident instead of some other factor.6
In this regard, Dr. Koprivica's opinion, which purports to address causation, was
necessary to meet Claimant's burden of proof on this issue. However, as the Commission
correctly observed, Dr. Koprivica's opinion was limited to a conclusory statement in his
report that Claimant's accident was the "prevailing factor precipitating" his injury. The
Commission's inability to determine whether Dr. Koprivica was asserting that Claimant's
work accident was "the prevailing factor" in causing his resulting treatment and disability
(the statutory requirement for compensation) or that his work accident was merely the
main "precipitating factor" of his injury went to the weight that the Commission afforded
the opinion. Although Dr. Koprivica's phraseology might have permitted an alternative
interpretation, as Claimant strenuously suggests, this is not the standard by which we
review the evidence in a workers' compensation appeal. Rather, the weight afforded a
medical expert's opinion is exclusively within the discretion of the Commission. Sartor
v. Medicap Pharmacy, 181 S.W.3d 627, 630 (Mo. App. W.D. 2006).
Moreover, the Commission's written decision demonstrates that it found that Dr.
Koprivica's conclusions, like those of Dr. Puricelli, stemmed from an incorrect
MAYO CLINIC, http://www.mayoclinic.org/diseases-conditions/high-blood-pressure/expert- answers/hypertensive-crisis/faq-20058491 (last visited June 19, 2015). 6 For a list of cases in which medical conditions have been found to exceed lay understanding, see Bock, 274 S.W.3d at 562.
9 understanding of the facts. Specifically, the Commission noted, and the record reflects,
that although Dr. Koprivica's report suggested that Claimant had experienced "extreme
exertion" in taking down the inmate, Claimant had consistently testified that the event
required only "minimal exertion" on his part.7 When expert testimony is thus impeached,
the Commission is free to disregard it, even in the absence of other credible testimony.
See Seifner v. Treasurer of State-Custodian of Second Injury Fund, 362 S.W.3d 59, 67
(Mo. App. W.D. 2012) (finding that where claimant's unopposed expert testimony
regarding medical causation had been impeached, the Commission was free to find in the
other party's favor). For these reasons, Claimant's first point is denied.
Claimant's second point takes the position that he was not required to prove that
his hypertensive crisis was a compensable injury, arguing that the Commission should
have determined "whether a compensable injury of any kind occurred, in that a
compensable physical and emotional injury did result from the sudden and extreme
stresses of the accident that in turn caused the need to treat the hypertensive crisis."
Relying on Tillotson v. St. Joseph Med. Ctr., 347 S.W.3d 511 (Mo. App. W.D. 2011),
7 The transcript from the hearing reflects that Claimant testified as follows:
[Employer's attorney:] . . . Now you told me in your deposition that actually the exertion that you did taking him down you thought was minimal. Is that still your testimony today? [Claimant:] Yes. [Employer's attorney:] Okay. And do you recall seeing Dr. Koprivica, who your attorney sent you to see? [Claimant:] Yes. [Employer's attorney:] Okay. Now he says in his report, with respect to this incident, that you wrestled. I know he uses that term. I want to get it so I don't -- okay. Here's the quote from Dr. Koprivica's report. I want to make sure I read it correctly. It's on page 7 of Dr. Koprivica's first report. He says in this event, in wrestling the individual and taking him to the ground, there was extreme exertion. You don't agree with that. You told me it was minimal exertion, right? [Claimant:] Yes.
10 Claimant asserts that he was only required to show that the treatment for his hypertensive
crisis "flowed from" the circumstances surrounding his accident. Tillotson does not
support such an argument.
Unlike the instant case, there was no dispute in Tillotson that the claimant had
suffered a compensable injury. See Tillotson, 347 S.W.3d at 517. The dispute there was
whether the "prevailing factor" requirement in section 287.020 applied to the
determination of what type and extent of medical treatment a claimant with a
compensable injury was entitled to receive. Id. at 517-18. The Western District of this
Court found that the requirement did not apply to such a question; instead, once a
compensable injury is established, the question becomes whether, pursuant to section
287.140, the treatment that followed was reasonably required to cure and relieve the
effects of the injury. Id. at 518.
The flaw in Claimant's argument is that he incorrectly conflates his hypertensive
crisis with its ensuing treatment and claims that both flowed from some earlier injury
attributable to his work accident. A hypertensive crisis is not a medical treatment. It is a
medical condition. And the "prevailing factor" requirement does apply when a medical
condition or disability, i.e., an injury, is at issue. Compare section 287.020.3(1) with
section 287.140.1; Tillotson, 347 S.W.3d at 518. As noted in Tillotson, there is a
"material distinction between determining whether a compensable injury has occurred
and determining the medical treatment required to be provided to treat a compensable
injury." 347 S.W.3d at 517. Tillotson involved the latter situation; this appeal involves
the former. See Armstrong, 391 S.W.3d at 472-73; Jordan v. USF Holland Motor
Freight, Inc., 383 S.W.3d 93, 95 n.4 (Mo. App. S.D. 2012).
11 To be entitled to compensation for the treatment that flowed from his
hypertensive crisis, Claimant was required to first establish that his accident was the
prevailing factor in causing his hypertensive crisis. As detailed in our analysis of Point I,
the Commission did not err in finding that Claimant failed to do. Claimant's second point
is also denied, and the decision of the Commission is affirmed.
DON E. BURRELL, J. - OPINION AUTHOR
MARY W. SHEFFIELD, P.J. - CONCURS
NANCY STEFFEN RAHMEYER, J. - DISSENTS
12 RONALD MALAM, ) ) Claimant-Appellant, ) ) v. ) No. SD33620 ) STATE OF MISSOURI, DEPARTMENT ) Filed: June 24, 2015 OF CORRECTIONS, ) ) Employer-Respondent. )
DISSENT
I must respectfully dissent. My problem with the majority opinion is that,
although a crisis may be caused when a latent medical condition becomes symptomatic
following an accident, it is undisputed that Claimant had absolutely no symptoms of any
hypertensive crisis until he “took down” the prisoner. Then, while on the job, he started
to experience shortness of breath and began spitting up blood. There was no time delay
where he somehow recuperated; rather, he was transported by ambulance to Texas
County Memorial Hospital, where he lost consciousness. Chest x-rays revealed the
presence of a pulmonary edema. Claimant was eventually intubated and transported to
Lester E. Cox Medical Center (“Cox”) in Springfield, Missouri, where he remained
unconscious for approximately a week. During this period Claimant was evaluated by
several doctors. None of the doctors at the hospital provided evidence as to the
1 prevailing cause; however, Dr. Mark Anderson, a cardiologist, determined Claimant was
suffering from a “[h]ypertensive crisis,” acute renal failure, respiratory failure, and
“[h]ypotension and shock following a hypertensive crisis.”
Claimant had never been diagnosed with a “hypertensive crisis” before the
August 11, 2012 incident, nor has he suffered one since. The take-down set in motion the
chain of events that culminated in $138,010.15 for medical expenses billed by Cox; in
other words, but for the take-down, Claimant would not have had that particular
“hypertensive crisis.” Did Claimant have a predisposition to having this type of injury as
opposed to some other, certainly, but the fact is that his injury was an “accident” (which
the Commission found) that caused the subsequent injury. As noted by the majority
opinion, the Commission found that, although Claimant had suffered a work-related
accident, he had failed to prove that the accident was the “prevailing factor” causing his
injuries. I believe that is a misapplication of the law in parsing out Dr. Koprivica’s
words.
As the Commission found:
We conclude that the incident on August 12, 2011, was (1) unexpected, (2) traumatic, (3) identifiable by time and place of occurrence, and (4) produced at the time objective symptoms of an injury caused by a specific event during a single work shift--namely, employee’s difficulty breathing and his spitting up blood. We conclude, therefore, that employee suffered an accident.
According to all doctors, Claimant had preexisting hypertension and
cardiomyopathy. Even Employer’s expert, Dr. Puricelli, opined:
It is my opinion that [Claimant] went into acute hypertensive crisis and developed hemoptysis due to the elevated pulmonary capillary pressure that occurred due to his left ventricular failure secondary to the hypertensive crisis.
2 At issue are the words of Dr. Koprivica: “Clearly, [Claimant] had an underlying
hypertensive cardiomyopathy identified as far back as 2005. Nevertheless, the prevailing
factor[s] precipitating the specific event were the unexpected emotional and physical
stresses associated with restraining the offender.” The Commission challenged the
meaning of “the prevailing factor precipitating” the hypertensive event. Noting the word
“precipitating,” as used in section 287.020.2, 1 the Commission concluded, “[w]hile we believe an accident may be both a precipitating
and the prevailing factor causing a compensable injury, this does not appear to be Dr.
Koprivica’s opinion in this case.” Where both a preexisting cardiovascular condition and
a work-related activity contribute to cause an employee’s injury, the question becomes
which of the contributing factors was “the primary factor, in relation to [the] other factor,
causing . . . the resulting” injury. Section 287.020.3(1); Leake v. City of Fulton, 316
S.W.3d 528, 532 (Mo. App. W.D. 2010). In making this determination it is important to
note that “[t]he words a medical expert uses when testifying are . . . important, not so
much in and of themselves, but as a reflection of what impression such witness wishes to
impart.” Mayfield v. Brown Shoe Co., 941 S.W.2d 31, 36 (Mo. App. S.D. 1997).
At no point in Dr. Koprivica’s opinion does he state that Claimant’s accident was
merely a “precipitating factor” in relation to another “prevailing factor.” Rather, in
evaluating the contributing factors at issue, Dr. Koprivica emphasized the role of
Claimant’s accident while minimizing the role of his preexisting conditions: “Clearly,
[Claimant] had an underlying hypertensive cardiomyopathy identified as far back as
2005. Nevertheless, the prevailing factor[s] precipitating the specific event were the
unexpected emotional and physical stresses associated with restraining the offender.” 1 All references to statutes are to RSMo Cum.Supp. 2008, unless otherwise specified.
3 (emphasis added). Given this context, Dr. Koprivica’s use of “precipitating,” rather than
“causing,” per the precise language of section 287.020.3(1), should not be singled out in a
manner which defeats his overall impression. I conclude that the Commission misapplied
the law in finding that the words used did not comply with the statute.2
The Commission considered two expert opinions on the issue of medical
causation and explicitly decided to not credit one of those opinions—that of Dr. Puricelli.
The Commission concluded that Dr. Koprivica’s opinion did not conform to the
requirements of section 287.020. It defies reason and is a misapplication of the law to
conclude that Claimant had an “accident” as defined by the statute and found by the
Commission which caused Claimant to have difficulty breathing and spitting up blood,
but that the immediate hypertensive crisis was not part and parcel of that accident.
Moreover “once it is determined that there has been a compensable accident, a
claimant need only prove that the need for treatment and medication flow from the work
injury.” Tillotson v. St. Joseph Medical Center, 347 S.W.3d 511, 519 (Mo. App. W.D.
2011). An employer shall provide, among other things, “hospital treatment, . . . as may
reasonably be required after the injury or disability, to cure and relieve from the effects of
the injury.” Section 287.140.1, RSMo Cum.Supp. 2005. I would reverse the decision of
the Commission.
Nancy Steffen Rahmeyer, J. - Dissenting Opinion Author
2 Where the record is silent as to whether the Commission disbelieved an expert medical witness, the Commission may not arbitrarily disregard the uncontradicted, unimpeached, and undisputed testimony of that witness. Bond v. Site Line Surveying, 322 S.W.3d 165, 171 (Mo. App. W.D. 2010).