William Davis v. St. Louis Public Schools

The above-entitled workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by section 287.480 RSMo. Having reviewed the evidence and considered the whole record, the Commission finds that the award of the administrative law judge is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Act. Pursuant to section 286.090 RSMo, the Commission affirms the award and decision of the administrative law judge dated July 16, 2007. The award and decision of Administrative Law Judge Linda J. Wenman, issued July 16, 2007, is attached and incorporated by this reference.

The Commission further approves and affirms the administrative law judge's allowance of attorney's fee herein as being fair and reasonable.

Any past due compensation shall bear interest as provided by law.

Given at Jefferson City, State of Missouri, this 20th day of March 2008.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

DISSENTING OPININO FILED Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

Secretary

After a review of the entire record as a whole, and consideration of the relevant provisions of the Missouri Workers' Compensation Law, I believe the decision of the administrative law judge should be reversed. I believe the administrative law judge erred in concluding that employee met the burden of proof regarding the contraction of an occupational disease.

The employee must prove by substantial and competent evidence that he has contracted an occupational disease and not an ordinary disease of life. Kelley v. Banta \& Stude Const. Co., Inc., 1 S.W.3d 43, 48 (Mo.App. E.D. 1999); Hayes v. Hudson Foods, Inc., 818 S.W.2d 296, 299-300 (Mo.App. S.D. 1991). This involves showing that there was an exposure to the disease which was greater than or different from that which affects the public generally, and that there was a recognizable link between the disease and some distinctive feature of the employee's job which is common to all jobs of that sort. Id.; Dawson v. Associated Elec., 885 S.W.2d 712, 716 (Mo.App. W.D. 1994).

Employee failed to meet his burden that he contracted an occupational disease, varicose veins, and not an ordinary disease of life. Employee testified that he first noticed symptoms related to his varicose vein condition beginning in 1990. Employee testified that he lived with the condition for quite a number or years and just thought it was part of the aging process. Employee testified that he noticed as the years went along that when he was on his feet for any length of time that they would start to hurt and swell. Employee testified that his condition interfered with his ability to do his job as a physical education teacher as he got older.

Employee underwent surgery for his condition in July of 2000 but did not file his claim for workers' compensation benefits until nearly three years later. Furthermore, employee testified that he was very active outside work participating in physical activities including working part-time as a baseball umpire. Employee's work as an umpire required prolonged standing as well as bending and running. Employee's outside activities consisted of many of the same activities employee partook in as a physical education teacher. Employee led a very active lifestyle both inside and outside of work. Even so, physical activity may have increased employee's symptoms, but was not shown to be a substantial factor in causing his varicose veins. Employee testified that as his condition became worse, he reduced his level of activity; however employee's condition did not improve, but continued to deteriorate. Employee was unable to show that any one activity was causally related to the development of his varicose veins.

Dr. Rao and Dr. Volarich provided opinions as to medical causation with regard to employee's condition. However, the doctors do not share the same level of expertise with regard to employee's condition, varicose veins. Dr. Rao is both a vascular and general surgeon, whereas Dr. Volarich is a doctor of osteopathic medicine. Dr. Rao has been in private practice for thirteen years and has performed vein stripping surgery on numerous occasions. Dr. Rao testified that he evaluates approximately five patients a week for venous insufficiency, and that it's a regular part of his practice. Dr. Rao's expertise in vascular conditions, such as varicose veins, greatly outweighs that of Dr. Volarich. As such, I find that the opinion of Dr. Rao should be given greater weight.

After conducting an independent medical examination on September 28, 2004, Dr. Volarich found that employee's work was a substantial factor in the development of employee's varicose veins. In stark contrast to Dr. Volarich's opinion, Dr. Rao opined that employee's condition was inherited. Dr. Rao stated that varicose veins are most commonly a hereditary condition and that in the absence of major trauma, it is presumed to be an inherited condition. Therefore, after reviewing employee's medical records, Dr. Rao opined that employee's varicose veins were undoubtedly an inheritable or acquired condition over time. Dr. Rao opined that varicose veins are not caused by one job or another or by standing or sitting for prolonged

periods. Dr. Rao testified that standing in an immobile position or sitting for long periods of time with your legs down could aggravate the subjective complaints of venous insufficiency, but would not be a substantial causative factor that would result in the need for surgery. Dr. Rao stated that neither he nor anyone else could say whether employee's job or any one particular activity was a substantial contributing factor in the development of his condition.

I find the opinion of Dr. Rao to be most persuasive, credible and worthy of belief. Based on the medical evidence and testimony, it is reasonable to conclude that employee's activities as a physical education teacher were not a substantial contributing factor to the development of employee's varicose veins.

There was insufficient evidence to establish that employee's work conditions were causally related to the development of his varicose veins. Accordingly, I would reverse the decision of the administrative law judge and deny compensation in this case.

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

Alice A. Bartlett, Member

1. Are any benefits awarded herein? Yes

- Was the injury or occupational disease compensable under Chapter 287? Yes

1. Was there an accident or incident of occupational disease under the Law? Yes

- Date of accident or onset of occupational disease: July 19, 2000

- State location where accident occurred or occupational disease was contracted: St. Louis City, MO

1. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes
2. Did employer receive proper notice? N/A
3. Did accident or occupational disease arise out of and in the course of the employment? Yes

- Was claim for compensation filed within time required by Law? Yes

1. Was employer insured by above insurer? Yes
2. Describe work employee was doing and how accident occurred or occupational disease contracted: While performing his usual duties as a physical education teacher over thirty years, Employee developed varicose veins of both legs.
3. Did accident or occupational disease cause death? No
4. Part(s) of body injured by accident or occupational disease: Bilateral legs

- Nature and extent of any permanent disability: 7.5\% right leg and 7.5\% left leg at the 160 week level, and 10 % multiplicity.

1. Compensation paid to-date for temporary disability: None
2. Value necessary medical aid paid to date by employer/insurer? None

Employee: William Davis

Injury No.: 00-179682

1. Value necessary medical aid not furnished by employer/insurer? \$6,641.60

- Employee's average weekly wages: Sufficient for maximum rates

1. Weekly compensation rate: $\$ 599.96 / \ 314.26
2. Method wages computation: Stipulation

1. Amount of compensation payable:

Unpaid medical expenses: $\ 6,641.60

$56 / 7 th weeks of temporary total disability (or temporary partial disability) \ 3,514.05

26.4 weeks of permanent partial disability from Employer $\ 8,296.46

1. Second Injury Fund liability: No

Said payments to begin immediately and to be payable and be subject to modification and review as provided by law.

The compensation awarded to the claimant shall be subject to a lien in the amount of 25 % of all payments in favor of the following attorney for necessary legal services rendered to the claimant: Charles Bobinette

The above referenced Workers' Compensation claim was heard by the undersigned Administrative Law Judge on May 7, 2007, and continued on May 15, 2007. Post-trial memorandums were received, and the case was submitted on the June 29, 2007. Attorney Charles Bobinette represented William Davis (Claimant). St. Louis City Public Schools (Employer) were insured by the St. Louis City Board of Education, and represented by Attorney Eric Christensen. Assistant Attorney General Da-Niel Cunningham represented the Second Injury Fund (SIF). The case was heard with companion cases 00-179683,02-153253, and 02-153257.

Prior to the start of the hearing the parties identified the issues for disposition in this case: arising out of and in the course/scope of employment; occupational disease; medical causation; medical expenses in the amount of $\ 6,641.60; temporary total disability (TTD), the liability of Employer and SIF for permanent partial disability (PPD) benefits; and a statute of limitations defense. Hearing venue is correct, and jurisdiction properly lies with the Missouri Division of Workers' Compensation.

Claimant offered Exhibits A-U, Employer offered Exhibits 1-2, and SIF offered Exhibits I-II. All exhibits were admitted into the record without objection. On May 22, 2007, Claimant filed a motion to supplement the record. On May 25, 2007, with all parties present, Claimant's motion was heard and denied. Any markings contained within any exhibit were present when received, and the markings did not influence the evidentiary weight given the exhibit. Any objections not expressly ruled on in this award are overruled.

Findings of Fact

All evidence presented has been reviewed. Only testimony necessary to support this award will be reviewed and summarized.

1. Claimant is a sixty year old retired physical educati