Ronald Kliethermes v. ABB Power T&D

Based on a reasonable degree of medical certainty, Dr. Schuman opined that employee's heart conditions were all attributable to his underlying heart disease and the electrical shock sustained by the employee on November 9, 2000, was not a substantial factor in causing any of employee's present heart conditions alleged to be related to the accident.

Dr. Schuman thoroughly explains the reasons for his medical opinions and I am convinced that the employee did not sustain any damage to his heart based on the electrical shock occurring November 9, 2000; the employee reached maximum medical improvement almost immediately; the employee did not sustain any residual permanent disability attributable to the electrical shock sustained November 9, 2000; the employee will not require any future medical care to cure and relieve him from the effects of the injury sustained November 9, 2000; and the employee did not sustain any adverse effect as to his employability in the open labor market attributable to the electrical shock occurring November 9, 2000.

William F. Ringer, Chairman

I have reviewed and considered all of the competent and substantial evidence on the whole record. Based on my review of the evidence as well as my consideration of the relevant provisions of the Missouri Worker's Compensation Law, I believe the decision of the administrative law judge should be reversed.

The administrative law judge concluded that employee failed to carry his burden of proving the electrical shock employee suffered at work was a substantial factor in causing his current heart problems. I disagree.

Under Missouri law, it is well-settled that the claimant bears the burden of proving all the essential elements of a workers' compensation claim, including the causal connection between the accident and the injury. While the claimant is not required to prove the elements of his claim on the basis of "absolute certainty," he must at least establish the existence of those elements by "reasonable probability." Furthermore, the element of causation must be proven by medical testimony, "without which a finding for claimant would be based on mere conjecture and speculation and not on substantial evidence."

Shelton v. City of Springfield, 130 S.W.3d 30, 38 (Mo. App. 2004)(citations omitted).

Missouri case law makes clear that, " $[t]$ he worsening of a preexisting condition is a 'change in pathology.'" Winsor v. Lee Johnson Constr. Co., 950 S.W.2d 504, 509 (Mo. App. 1997)(citation omitted), overruled on other grounds by Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, 224 (Mo. banc 2003).

Employee had preexisting arrhythmias (heartbeat irregularities), to wit: atrial fibrillation and atrial flutter. Before the electrical shock, employee experienced infrequent minor episodes of arrhythmia. After the electrical shock, employee experienced much more frequent episodes of arrhythmia such that he required the implantation of a pacemaker to control the arrhythmia and he is unable to work.

Dr. Kanagawa testified within a reasonable degree of medical certainty that the electrical shock was a substantial factor in exacerbating employee's underlying heart conditions. Dr. Kanagawa explained the mechanism of injury. The electrical shock damaged the circuits (pathways) in employee's heart.

The administrative law judge determined that Dr. Kanagawa's opinion that the electrical shock damaged the circuits in employee's heart was based solely on the temporal relationship between the shock and the increased heart symptoms. The administrative law judge concluded, therefore, that Dr. Kanagawa's causation opinion is really a mere suspicion and is no more valuable than a layman's opinion.

Dr. Kanagawa specializes in cardiology. He is qualified by his training and experience to offer an opinion about injuries to the heart. He has treated employee for approximately 20 years so he is particularly qualified to offer an opinion regarding changes in employee's symptoms and functioning. Dr. Kanagawa has the benefit of the functional history recorded by the pacemaker to provide him with objective information regarding the permanent nature of employee's exacerbated heart condition.

The administrative law judge would seem to require expert proof of some physical change in employee's heart to support a finding of a "change in pathology." Dr. Kanagawa explained in detail why a "change in pathology" of the heart is sometimes only identifiable by a change in the way the heart functions. Dr. Kanagawa's explanation is consistent with the definition of "pathology:"

1 : the study of abnormality; esp: the study of diseases, their essential nature, causes, and development, and the structural and functional changes produced by them. 2 : something abnormal: a (1): the anatomic and physiological deviations from the normal in the tissues of animals and plants that are manifested as disease...(2) : the complex of signs, symptoms and bodily changes that characterize a particular disease...

WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 1655 (3d ed. 1971)(emphasis added).

Dr. Kanagawa's opinion that the shock was a substantial factor in exacerbating employee's heart condition was not based merely upon a temporal relationship between the shock and the increase in symptoms. Rather, his opinion was based upon expert medical knowledge acquired through his medical training and years of practice in the field of cardiology. Dr. Kanagawa is qualified to describe how electric shock affects the heart. He is qualified to testify about objective changes in the function of employee's heart. He is qualified to render an opinion that the shock caused the objective changes in heart function. I find Dr. Kanagawa credible.

Not only did the administrative law judge improperly discount Dr. Kanagawa's expert opinion, he completely ignored the opinion of Dr. Pierce. Dr. Pierce stated that, "the patient has continued to suffer greatly increased palpitations and recurrent atrial fibrillation since his electrical shock and with a reasonable degree of medical certainty, I would conclude the increase in atrial fibrillation is related to his shock."

Based upon the medical records provided him, Dr. Shuman could not assert there was a causal relationship between the shock and employee's increased arrhythmia but he did agree that employee had a marked increase in arrhythmia after the shock as compared to before the shock. Dr. Shuman acknowledged that employee's preshock mild arrhythmia did not prevent employee from working but his post-shock arrhythmia prevented employee from working. Dr. Shuman agreed that the type of shock employee suffered could cause an increase in atrial fibrillation but he would have expected to see laboratory evidence of any such damage in the 24-48 hour period of hospitalization after the shock. Dr. Shuman did not see such a record so he could not testify with reasonable medical certainty to a causal relationship. Dr. Shuman admitted on cross-examination that it was possible that the shock could cause damage that did not appear in the period immediately after the shock.

Based upon the opinions of Dr. Kanagawa and Dr. Pierce, I find employee has carried his burden of establishing a medical causal relationship between the electric shock and the exacerbation of his non-disabling heart condition to the level of a permanently disability.

I would reverse the award of the administrative law judge denying compensation. I would award past medical expenses, additional temporary total disability, future medical care, and permanent total disability against employer/insurer. I find persuasive employee's arguments regarding the applicability of the 15\% enhancement of compensation due to employer's failure to comply with OSHA safety standards.

For the foregoing reasons, I respectfully dissent from the decision of the majority of the Commission.

Injury No. 00-128224

Before the

DIVISION OF WORKERS' COMPENSATION

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: RJD/tmh

1. Are any benefits awarded herein? No additional benefits are awarded.
2. Was the injury or occupational disease compensable under Chapter 287? No compensable permanent injury.
3. Was there an accident or incident of occupational disease under the Law? Yes.
4. Date of accident or onset of occupational disease: November 9, 2000.
5. State location where accident occurred or occupational disease was contracted: Jefferson City, Callaway County, Missouri.
6. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes.
7. Did employer receive proper notice? Yes.
8. Did accident or occupational disease arise out of and in the course of the employment? Yes.
9. Was claim for compensation filed within time required by Law? Yes.
10. Was employer insured by above insurer? Yes.
11. Describe work employee was doing and how accident occurred or occupational disease contracted: Claimant was testing a transformer when he received an electrical Shock.
12. Did accident or occupational disease cause death? No. Date of death? N/A.
13. Part(s) of body injured by accident or occupational disease: Body as a whole.
14. Nature and extent of any permanent disability: None.
15. Compensation paid to-date for temporary disability: $\ 35,348.28.
16. Value necessary medical aid paid to date by employer/insurer? $\ 61,452.34.
17. Value necessary medical aid not furnished by employer/insurer? None.
18. Employee's average weekly wages: $\ 658.08.
19. Weekly compensation rate: $\$ 438.72 / \ 314.26.
20. Method wages computation: Stipulation.

1. Amount of compensation payable: None.

Employee: Ronald Kliethermes

Dependents: N/A

Emp