James Andrews v. City of Glendale

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, read the briefs, heard oral arguments, 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 October 16, 2008, as supplemented herein.

The administrative law judge concluded that employee failed to meet his burden of proof on his claim that he sustained an occupational disease arising out of and in the course of his employment. Thus, the administrative law judge denied employee’s claim that he be awarded future medical treatment, permanent total or permanent partial disability benefits, and a dependency determination. We agree with this conclusion. We offer this supplemental opinion to address issues raised by employee in his briefs and at oral argument.

Employee argued in his briefs and at oral argument that the administrative law judge improperly held employee to a higher standard of proof for medical causation than the proper standard of “reasonable medical probability.” Employee cited the administrative law judge’s reliance on the opinions of Drs. Cantrell and Stahle, which stated that employee’s back problems were the result of a pre-existing degenerative condition, as proof that she used an elevated standard. Specifically, employee argued that the administrative law judge erred in concluding that because employee’s back problems were the result of a pre-existing degenerative condition, employee’s career as a firefighter could not have been “a substantial factor” in causing or progressing said condition. In sum, employee argued that by failing to consider the effects of employee’s career as a firefighter on his degenerative condition, the administrative law judge held employee to a higher standard in that she required employee to prove that his career as a firefighter was “the substantial factor” instead of “a substantial factor” in causing his back problems.

At oral argument, employee argued that a recent case, Vickers v. Missouri Department of Public Safety, WD69233, 2009 Mo. App. LEXIS 574 (Mo. App. 2009), provided the proper medical causation standard used in Missouri for occupational diseases. In Vickers, the court held that “[a] claimant must submit medical

evidence establishing a probability that working conditions caused the disease, although they need not be the sole cause. Id. at *11 (citations omitted). The court later stated "a single medical expert's opinion may be competent and substantial evidence in support of an award of benefits, even where the causes of the occupational disease are indeterminate." Id. at *20 (citations omitted).

Employee argued that because he submitted medical evidence and testimony from Dr. Lichtenfeld supporting the proposition that employee's twenty-six years of working as a firefighter was a substantial factor in causing his back problems, he met his burden in establishing that it was "reasonably probable" that his career as a firefighter caused or exacerbated his current back problems.

Although employee's argument is based upon proper legal principles, it fails to consider the distinctions between the claims in Vickers and the current case. First of all, the claimant in Vickers claimed she contracted clostridium difficile (C diff), a contagious bacterium, through a fecal-oral route in the course of her employment as a laundry cleaner for a veteran's home. Id. at *1-3, *15. The chances of being exposed to and contracting such a bacterium are much more limited than the chances to develop back problems. To contract C diff, a person must ingest fecal matter orally. On the other hand, there are countless many ways back problems can develop. Therefore, the evidence in Vickers showing that the patients whose soiled laundry she handled were infected with C diff carries substantially more weight than employee's evidence that he had sustained minor traumas to his back; especially when it was well documented that employee had suffered from back problems dating back to as early as 1992.

Another distinction between Vickers and the current case is that the administrative law judge in Vickers substantiated his decision to discredit the claimant's medical expert testimony with erroneous information regarding the proximity of claimant's exposure to the bacterium. Id. at *17-18. That was one of the primary reasons for the court's reversal of the administrative law judge's decision. In the current case, there is no such evidence that the administrative law judge based her opinion that Dr. Lichtenfeld was incredible upon erroneous information. After comprehensively reviewing all of the evidence and upon her observations at hearing, the administrative law judge, in the current case, determined that Dr. Cantrell's opinion, that employee's back problems were not caused by his career as a firefighter, was more credible than Dr. Lichtenfeld's opinion.

If Dr. Lichtenfeld were found to be a credible medical expert, employee is correct in arguing that his opinion alone would be sufficient to support an award of benefits. However, neither the administrative law judge nor the Commission finds

Dr. Lichtenfeld's opinions or testimony credible. Therefore, employee has failed to provide substantial and competent evidence to support his claim that employee's career as a firefighter was "a substantial factor" in causing or exacerbating his current back problems.

For the foregoing reasons, the Commission agrees with the conclusion reached by the administrative law judge that employee failed to meet his burden of proof on his claim that he sustained an occupational disease arising out of and in the course of his employment. Thus, employee's claim that he be awarded future medical treatment, permanent total or permanent partial disability benefits, and a dependency determination, is denied.

The award and decision of Administrative Law Judge Margaret D. Landolt, issued October 16, 2008, is affirmed, and is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this 24th day of June 2009.

DISSENTING OPINION FILED

John J. Hickey, Member

Attest:

Secretary

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 Workers' Compensation Law, I believe the decision of the administrative law judge should be reversed. I dissent from the majority's decision to deny benefits.

In my opinion the administrative law judge erred in determining that employee failed to meet his burden of proof with regard to his claim that he sustained an occupational disease arising out of and in the course and scope of his employment. To prevail on a theory of occupational disease, an "employee must provide substantial and competent evidence that he has contracted an occupationally induced disease rather than an ordinary disease of life." Kelley v. Banta \& Stude Constr. Co., Inc., 1 S.W.3d 43, 48 (Mo. App. 1999) (citations omitted). This requires a showing that the employee's work creates exposure to the disease greater than or different from that which affects the public generally; and there is 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.

The court in Jacobs v. City of Jefferson, 991 S.W.2d 693 (Mo. App. 1999), provided more guidance as to what constitutes the "substantial and competent evidence" needed to meet the aforementioned burden. In Jacobs, the court stated that an employee only has to "submit medical evidence establishing a probability that working conditions caused the disease, although they need not be the sole cause." Jacobs v. City of Jefferson, 991 S.W.2d 693, 698 (Mo. App. 1999).

Employee submitted numerous medical records and testimony documenting his various work-related back injuries and aggravations, yet the administrative law judge found that each incident was an isolated occurrence that had no permanent effect on employee's degenerative condition. The administrative law judge's award appears to indicate that any claimant that has a pre-existing degenerative back condition is precluded from being awarded benefits for a work-related occupational disease that progresses and/or accelerates solely because the condition was pre-existing. This reasoning is illogical because it fails to account for the effects physically demanding jobs have on degenerative conditions.

The administrative law judge found Dr. Lichtenfeld's opinions to be incredible. However, Dr. Lichtenfeld is the only medical expert that recognized that the "type of work [employee] did certainly is extremely more consistent with causing [a] progression and acceleration [of his degenerative condition] than anything he would have done off the job." Dr. Lichtenfeld did not take an outrageous position and state that employee's work was the only cause of employee's back condition, but instead logically concluded that employee's minor traumas suffered at work, such as when he had symptoms from sliding down the fire pole, from falling, from cleaning the equipment, and from cutting with a chain saw, were a substantial factor in developing his current back problems.

Further, the administrative law judge and the majority give substantial weight to Dr. Cantrell's opinion that employee did not sustain an occupational disease even though Dr. Cantrell's report only considers two isolated incidents occurring in March and August of 2005. Employee was exposed to the hazards associated with being a firefighter for twenty-six years. During that time he sustained multiple traumas and daily stress on his back. Employee did not argue that the two exacerbating incidents in March and August of 2005 caused all of his current back complaints, but that the combined effect of his pre-existing degenerative condition and the daily toll taken on his back over the course of twenty-six years as a firefighter has caused his current back condition. It is nonsensical to conclude that employee's degenerative condition was not even exacerbated by his employment.

In my opinion, employee clearly met his burden of establishing that his current back problems are in part due to an occupational disease he developed over the course of twenty-six years of working as a firefighter for the City of Glendale and were not entirely an ordinary disease of life. Dr. Lichtenfeld provided "substantial and competent evidence," through his report and testimony, that employee's job was much more likely to have caused an acceleration or progression of his degenerative condition than anything he would have done off the job. Therefore, Dr. Lictenfeld's opinions support employee's arguments that his work created an exposure to the disease (back problems) greater than or different from that which affects the public generally; and that there was a recognizable link between employee's back problems and the types of duties involved with his job as a firefighter. Dr. Lichtenfeld's opinions easily established a probability that employee's working conditions caused the disease.

Furthermore, this is a case in which there is conflicting medical evide