Eric Lichtinger v. Swiss Meats

jobs due to his preexisting heart condition: employee took the indoor job with employer because working as a roofer outside in the heat aggravated his cardiac problems.

Both Dr. Berkin and Dr. Schuman agreed employee suffered preexisting disability referable to the cardiovascular condition. Dr. Berkin opined employee suffered a 30% permanent partial disability of the body as a whole in connection with his preexisting cardiovascular condition, and that this condition constituted a hindrance or obstacle to employment at the time of the primary injury. We find Dr. Berkin credible. We find that employee suffered a 30% preexisting permanent partial disability of the body as a whole referable to his cardiovascular condition, and that this condition constituted a hindrance or obstacle to employment at the time employee sustained the primary injury.

On October 11, 2006, employee was cutting meat with a knife when the knife slipped and stabbed employee in the right forearm. Immediate and severe swelling resulted from the stabbing injury and employee went to the hospital where an emergency fasciotomy was performed to relieve the blood pressure on the forearm. That night, employee experienced nausea and dizziness. These symptoms recurred and worsened throughout subsequent days, until employee was hospitalized once again on October 18, 2006. Tests revealed employee had suffered a myocardial infarction. While in the hospital, employee underwent an angioplasty, with placement of two additional stents in his arteries. Employee attempted to return to work after his release from the hospital, but discovered he was no longer able to perform his job duties due to fatigue, sweating, and dizziness. Eventually, employee was back in the hospital for cardiovascular symptoms and complaints. This time, doctors implanted a pacemaker.

Dr. Berkin opined that the stress from the October 2006 knife accident was the direct and proximal cause of the subsequent acute myocardial infarction. Dr. Schuman agreed there is a causal relationship between the October 2006 accident and the myocardial infarction of October 17, 2006. Dr. Schuman believes that the type of injury and procedure (fasciotomy) could have put a pathologic stress on the cardiovascular system, and that this stress could be a significant factor in causing a myocardial infarction. Although Dr. Schuman ultimately opined that the accident was not the prevailing factor causing the heart attack, he also made clear that he was reluctant to "pick a word" that would have a legal effect in this case, such as whether the accident was a "substantial" or "prevailing" factor. When we read Dr. Schuman's testimony together with his report, it appears to us that Dr. Schuman testified that the work accident was not the prevailing factor causing the heart attack because Dr. Schuman could not say the work accident was the only factor at play:

> I couldn't say prevailing. It's not the only factor. Because if he didn't have this degree of underlying coronary artery disease he wouldn't have had [a myocardial infarction]. It's like most [myocardial infarctions], it's multifactorial.

Transcript, Page 756.

But the law does not require an employee to show a work accident was the only factor in causing the resulting medical condition and disability, but merely the prevailing factor,

Injury No.: 06-134457

which is defined as "the primary factor, in relation to any other factor ..." See section 287.020.3(1) RSMo.

When we examine Dr. Schuman's testimony and report together, we find them ultimately supportive of employee's claim that the accident was the prevailing factor in causing the myocardial infarction and subsequent deterioration of employee's cardiovascular condition. And, after carefully weighing the expert medical opinions, we disagree with the administrative law judge's finding that employee did not suffer any cardiovascular injury as a result of the October 2006 knife accident. We find instead that the accident was the prevailing factor causing the myocardial infarction on October 17, 2006, and subsequent deterioration of employee's cardiovascular condition and disability.

On appeal before this Commission, employee fails to identify or suggest the time that he reached maximum medical improvement following the work injury. We note that Dr. Schuman opined employee was at maximum medical improvement as of his evaluation on November 23, 2009. Finding no contrary suggestion from the parties, and declining to become an advocate for the employee by searching the medical record in this matter for evidence that might support an earlier date of maximum medical improvement, we adopt Dr. Schuman's opinion and find that employee reached maximum medical improvement on November 23, 2009.

We find that employee sustained a 25% permanent partial disability of the body as a whole referable to his cardiovascular system as a result of the primary injury.

We find appropriate and leave undisturbed the administrative law judge's findings that employee suffered, as a result of the primary injury, a 5% permanent partial disability at the 200-week level referable to the right forearm and 14 weeks of disfigurement.

The evidence is uncontested that employee is permanently and totally disabled for all employment due to the condition of his cardiovascular system. Both Dr. Schuman and Dr. Berkin agree this is the case.

Timothy Lalk, employee's vocational expert, opined that employee is unable to secure and maintain employment in the open labor market and is unable to compete for any position due to his problems with fatigue and his need to rest almost constantly in order to avoid aggravating the symptoms of his cardiovascular condition. Mr. Lalk explained that he understands employee to be permanently and totally disabled due to a combination of his preexisting cardiovascular condition in combination with the effects of the primary injury on that condition. We find Mr. Lalk credible.

Dr. Schuman opined that the primary injury and resultant myocardial infarction "tipped him over" to much worse left ventricular function than existed before, with the effect that employee is now permanently and totally disabled. This supports employee's argument that he is permanently and totally disabled due to a combination of his preexisting conditions and the effects of the primary injury.

We find this evidence persuasive. We find employee is permanently and totally disabled as a result of his preexisting cardiovascular condition and the effects of the primary injury.

Because we have modified the administrative law judge's findings as to medical causation in respect to the primary injury, we must resolve the issue whether employee is entitled to future medical treatment from employer. Section 287.140.1 RSMo provides, as follows:

In addition to all other compensation paid to the employee under this section, the employee shall receive and the employer shall provide such medical, surgical, chiropractic, and hospital treatment, including nursing, custodial, ambulance and medicines, as may reasonably be required after the injury or disability, to cure and relieve from the effects of the injury.

We have found that the myocardial infarction on October 17, 2006, and subsequent deterioration of employee's cardiovascular condition were caused by the work accident. Dr. Schuman opined that employee will need ongoing monitoring and care related to his cardiovascular condition. We find this evidence persuasive.

In order to receive future medical benefits under the Act, a claimant is not required to present conclusive evidence that future medical treatment is needed. Rather, he only needs to demonstrate a reasonable probability that future medical treatment is necessary by reason of his work-related injury. Probable in this context means founded on reason and experience which inclines the mind to believe but leaves room for doubt. The claimant is not required to present evidence of the specific medical care that will be needed but he is required to establish through competent medical evidence that the care requested flows from the accident. An employer is required to compensate for future medical care only if the evidence establishes a reasonable probability that additional medical treatment is needed and, to a reasonable degree of medical certainty, that the need arose from the work injury.

ABB Power T \& D Co. v. Kempker, 236 S.W.3d 43, 52 (Mo. App. 2007) (citations omitted).

We conclude that employee has met his burden of establishing a reasonable probability that additional medical treatment is needed and that the need arose from the work injury. Accordingly, we conclude that employer is liable for any future medical treatment that may reasonably be required to cure and relieve from the effects of the work injury.

Section 287.220 RSMo creates the Second Injury Fund and provides when and what compensation shall be paid in "all cases of permanent disability where there has been previous disability." As a preliminary matter, the employee must show that he suffers from "a preexisting permanent partial disability whether from compensable injury or otherwise, of such seriousness as to constitute a hindrance or o