Howard Komerous v. St. Charles County Government

an employee's suffering anxiety and depression, see Schaffer v. Litton Interconnect Tech., 274 S.W.3d 597 (Mo. App. 2009); that stressful interactions with a company president resulted in an employee's suffering mental upset and crying, see Sherman v. First Fin. Planners, Inc., 41 S.W.3d 633 (Mo. App. 2001); or that litigation with employer resulted in an employee's need to be off work and see a psychiatrist, see Williams v. Depaul Health Ctr., 996 S.W.2d 619, 624 (Mo. App. 1999). Some courts have described § 287.120.8 as applicable to claims involving a "mental/mental" injury (i.e. a psychiatric injury resulting from psychiatric factors). See E.W. v. Kan. City Sch. Dist., 89 S.W.3d 527, 536 (Mo. App. 2002).

In contrast, this claim alleges employee suffered a physical injury (a stroke) as a result of mental factors (stress at work). While it is not inconceivable that a stroke might result in psychiatric injury, neither of the parties' evaluating doctors identified any psychiatric injury resulting from the stroke. Employee acknowledged at the hearing that he has not seen a psychologist or a psychiatrist as a result of the stroke. At the hearing, all of employee's complaints related to the stroke (neuropathy, trouble using his left side, difficulty speaking) are physical rather than psychiatric problems.

Given the foregoing, we must conclude that this is not a claim for "mental injury." Accordingly, we conclude that $\S 287.120 .8$ does not apply. Employee was not required to show that he experienced work-related stress that was extraordinary or unusual in order to prevail on his claim for compensation.

Of course, whether employee's work was a substantial factor causing him to sustain a stroke is a separate question, to which we now turn.

We agree with the administrative law judge that the issue of medical causation is dispositive. Section 287.020.2 RSMo provides, as follows:

An injury is compensable if it is clearly work related. An injury is clearly work related if work was a substantial factor in the cause of the resulting medical condition or disability. An injury is not compensable because work was a triggering or precipitating factor.

The parties presented conflicting medical expert testimony on the issue of medical causation. Employee provides the testimony of Dr. Cohen, who believes employee's work was a substantial factor in the cause of his stroke. Dr. Cohen acknowledged that employee exhibited several of the most common risk factors for stroke, such as high blood pressure, high cholesterol, and diabetes. But Dr. Cohen explained that employee's work involved the type of stress that would cause someone with high blood pressure to have even higher blood pressure. Ultimately, Dr. Cohen opined that employee's work caused his high blood pressure to worsen which in turn was a substantial factor that caused him to suffer the stroke.

Employer, on the other hand, provides the testimony of Dr. Goldring, who believes employee's stroke was the result of his underlying vascular risk factors. Dr. Goldring disagreed with Dr. Cohen's analysis and pointed out that Dr. Cohen's causation opinion

Injury No.: 04-029037

Employee: Howard Komerous

- 3 -

relied on the speculative premise that employee's work actually caused him to experience an increase in his already high blood pressure. Dr. Goldring characterized this premise as "a stretch." Dr. Goldring opined that stress is not one of the recognized causes of stroke, and that he'd never even heard of a stroke being work-related where there wasn't any trauma involved.

After carefully considering the testimony from both of these experts, we agree with the administrative law judge that Dr. Goldring is more credible.

We conclude that work was not a substantial factor causing employee to suffer the stroke on March 31, 2004, or any resulting disability.

**All other issues moot**

We note that the administrative law judge went on to address a number of other issues and to render findings, such as the extent of employee's permanent partial disability, that are moot by reason of employee's failure to meet his burden of proof on the issue of medical causation. We do not adopt any of the administrative law judge's findings or comments related to the moot issues of past medical expenses, future medical care, or the nature and extent of permanent partial disability.

**Conclusion**

Based on the foregoing, the Commission concludes and determines that employee failed to demonstrate that his work was a substantial factor causing him to suffer a stroke at work.

The claim for compensation is denied.

The award and decision of Administrative Law Judge Edwin J. Kohner, issued September 2, 2011, is attached and incorporated only to the extent it is not inconsistent with our findings, conclusions, and analysis herein.

Given at Jefferson City, State of Missouri, this 5th day of April 2012.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

James Avery, Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

1. Are any benefits awarded herein? No
2. Was the injury or occupational disease compensable under Chapter 287? No
3. Was there an accident or incident of occupational disease under the Law? No
4. Date of accident or onset of occupational disease: March 31, 2004 (alleged)
5. State location where accident occurred or occupational disease was contracted: St. Charles 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? No
9. Was claim for compensation filed within time required by Law? Yes
10. Was employer insured by above insurer? Self Insured
11. Describe work employee was doing and how accident occurred or occupational disease contracted: The employee, a fiscal manager, suffered a stroke during working hours.
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: None
14. Nature and extent of any permanent disability: 40 % Permanent partial disability to the body as a whole (Not compensable)
15. Compensation paid to-date for temporary disability: None
16. Value necessary medical aid paid to date by employer/insurer: $\ 812.50

1. Value necessary medical aid not furnished by employer/insurer? None
2. Employee's average weekly wages: $\ 797.58
3. Weekly compensation rate: $\$ 531.72 / \ 347.05
4. Method wages computation: By agreement

1. Amount of compensation payable:

None

1. Second Injury Fund liability: No

TOTAL:

None

1. Future requirements awarded: None

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 hereunder in favor of the following attorney for necessary legal services rendered to the claimant: David L. Pentland, Esq.

Employee: Howard Komerous

Injury No.: 04-029037

Dependents: N/A

Employer: St. Charles County Government

Additional Party: Second Injury Fund

Insurer: Self Insured

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: EJK/lsn

This workers' compensation case raises several issues arising out of an alleged work related injury in which the claimant, a fiscal manager, suffered a stroke at work. The issues for determination are (1) Accident or occupational disease arising out of and in the course of employment, (2) Medical causation, (3) Liability for Past Medical Expenses, (4) Future medical care, (5) Temporary Disability, (6) Permanent disability, and (7) Second Injury Fund liability. The evidence compels an award for the defense.

At the hearing, the claimant testified in person and offered a deposition of Raymond F. Cohen, D.O. The defense offered depositions of James M. Goldring, M.D., medical records from Barry Milder, M.D., Darren J. Pearson, M.D., and Phillip Brick, M.D., and various personnel records.

All objections not previously sustained are overruled as waived. Jurisdiction in the forum is authorized under Sections 287.110, 287.450, and 287.460, RSMo 2000, because the accident was alleged to have occurred in Missouri. Any markings on the exhibits were present when offered into evidence. The claimant's counsel stated that he made extensive markings on his exhibits, but the defense made no objections to the claimant's exhibits.

On March 31, 2004, the claimant suffered a stroke while working for this employer. The principal question is whether the claimant's stroke was compensable under the Missouri Workers' Compensation law.

The claimant began working for this employer on October 15, 2001, as the fiscal manager in the Department of Workforce Development. His job duties were to handle purchasing, the department's budget, payroll, auditing subcontractors of Workforce Development, and indirect management of state and federal grants by developing Excel spreadsheets. He testified that he was responsible for any errors in the work he submitted on the state and federal grants. As a result of this, he felt pressured. His job duties also included recording grant revenues and expenditures and preparing monthly reports on all grant reimbursement requests, "and other duties as assigned." The claimant complained that he was asked to move office furniture for two to six hours a day, but he did not move furniture the day of or prior to his stroke. He testified

that he experienced physical strain and physical exhaustion as a result of moving furniture because he was not in physical condition to do this sort of labor.

On one occasion when he was asked to refund money lost in a vending machine from petty cash, he was annoyed. The claimant testified that on a different occasion, in mid-June 2002, a co-worker named Marlene put pressure on him because she did not like the special pens the director ordered and told the claimant that he was a moron and made bad decisions. The claimant informed her that the Director ordered the pens.

The claimant testified that before October 15, 2001, he was in good health, but had high cholesterol, high blood pressure, diabetes, peripheral neuropathy, left-sided weakness, chronic renal insufficiency, glaucoma, a lazy left eye, cataracts, and damage to his retina caused by complications of his diabetes. Before 2004, he was supposed to take aspirin, though at the time of his stroke in March 2004, he had not taken aspirin for months. In December 2003, he took off work for laser eye surgery.

In April 2003, financial monitors met with the claimant because his 2001-2003 accounts did not "match up". He testified that the state wanted the accounts reconciled by April 30, 2003, and this caused him stress. The claimant testified that both the Director and Assistant Director of Finance, Becky Craig and Debbie Salvo, rejected his work on the grant reconciliation.

Debbie Salvo testified that the claimant yelled at the state workers and therefore, the state workers refused to work with him anymore. Ms. Salvo testified that the Director of Administration, Joe Kernell, asked her to "make this happen with the state" because the County Government did not want to miss out on the grants. As a result of that conversation, the claimant provided the data to Ms. Salvo each month and Ms. Salvo inputted the information to reconcile the accounts. The accounting to the state was due by the $10^{\text {th }}$ of each month. The claimant testified that Ms. Salvo pressured him and complained when he did not have the data to her in a timely manner. The claimant testified that this caused him stress because she kept requesting the information. Debbie Salvo testified that yes she did pressure the claimant for the information, so she could submit it to the state in a timely manner, just as she pressured every other county employee who makes reports to the state for grants, except that she did the claimant's work for him.

On March 31, 2004, the claimant was scheduled to work the late shift and arrived at work at 11 a.m. Patty MacNamee was "clamoring" because she thought the claimant had made a mistake on a participant's payroll check a second time. The claimant immediately drove his car toward the finance department. While en route, he noticed that the check was correct and drove back to his office. He testified that he was very enraged because Ms. MacNamee should have inspected the check to make sure of its accuracy before yelling at him. He went to the Assistant Director, Karen Grimm, to complain about Ms. MacNamee. Karen Grimm told the claimant that Ms. MacNamee made a mistake about the participant's check and that Ms. MacNamee tried to apologize to him, but he walked away. The claimant testified that Ms. Grimm started yelling back at him when he accused Ms. MacNamee of negligence. The claimant testified that he was very upset and aggravated. He testified that he gave Ms. Grimm his set of keys, because he did not want to work after 5 p.m. even though this was his late day. He went back to his office to try and relax.

Later, his face went numb, and his computer screen became blurry. He couldn't use his left hand, and his lips were numb as well as the left side of his face. The claimant went to see the Director of Workforce Development to tell him that he needed to go to the hospital, and the director instructed him to do so. The claimant drove to the hospital and received an insulin shot upon arrival. He was hospitalized for three days during which time he was very weak. He testified that he never tried to return to work and testified that he cannot work. He received shared leave from St. Charles County Government after he exhausted all of his sick and vacation time. He testified that he never had a stroke before March 31, 2004, although his father had a stroke.

The claimant testified that he doesn't know or can't determine why the blood clot dislodged and went to his head. He testified that since the stroke, he has a neuropathy but had a diabetic neuropathy prior to the stroke. He testified that he cannot lift more than a gallon of milk with his left hand and cannot type long messages or emails anymore. He testified that he is legally blind in his left eye now and that his kidneys have gotten worse since his stroke. He is not on any prescription pain medicines. The claimant has never seen a psychologist or psychiatrist because of his stress.

The claimant reported to Dr. Cohen that he was told he would not receive raises or retirement contributions and claimed that these were verbal threats. The employer operates pursuant to a Merit System which Debbie Salvo testified means that employees are compensated based upon job performance. The claimant received a 3.32 score on his annual evaluation in November 2003. See Exhibit 1. Ms. Salvo testified that when St. Charles County awarded raises, anyone who received a 3.0 or higher automatically received a pay raise, and the claimant received a raise every year. See Exhibit 7. She also testified that she trained all of the employees who administer, account for, and work with federal and state grants on how to enter them in the County's computer system and that the claimant was the only one who did not catch on, even after he was retrained. She did not have to do the jobs of other employees as she did for the claimant. No other employee who works on grants complained or commented that the software the County utilizes is incompatible to generating reports or that they were extraordinarily mentally stressed from working with it. Every employee who administers and accounts for grants get audited. She testified that she did not find it stressful recording grant revenues and expenditures or preparing monthly reports or grant reimbursement requests.

It is well settled that the Claimant bears the burden of proving all of the essential elements of his claim. Griggs v. A. B. Chance, 503 S.W.2d 697 (Mo. App. W.D. 1973). Section 287.120.1 provides in pertinent part that "[e]very employer ... shall be liable, irrespective of negligence, to furnish compensation ... for personal injury ... of the employee by accident arising out of and in the course of his employment, and shall be released from all other liability therefor whatsoever, whether to the employee or any other person." The first question is whether this is a mental injury under the scope of the Workers' Compensation statute. The first question is whether the claim relates to a mental injury. The claim for compensation defines the injury as an injury to the "brain and body as a whole/stroke" and states that the injury occurred from "Stress from work. On the day of the stroke, the claimant and his supervisor had a heated discussion

over an alleged error in accounting. Extra workload was given to claimant." The claimant's expert diagnosed "Severe work-related stress over a long period of time ultimately culminating in a cerebrovascular infarction." See Dr. Cohen medical report in Exhibit A. An analysis for mental injury is warranted.

Section 287.120.8, RSMo Supp. 2009, further provides:

Mental injury resulting from work related stress does not arise out of and in the course of the employment, unless it is demonstrated that the stress is work related and was extraordinary and unusual. The amount of work stress shall be measured by objective standards and actual events.

This section requires that "objective standards and actual events" must be used to ascertain whether the work-related stress "was extraordinary and unusual." The legislation does not clearly set forth what "objective standards" should be used to discern the "extraordinary and unusual" nature of an employee's work-related stress. Williams v. DePaul Health Center, 996 S.W.2d 619, 626, 627 (Mo.App. E.D. 1999).

We are persuaded that the proper comparison for purposes of Section 287.120.8 is to compare Employee's work-related stress with the stress encountered by employees having similar positions, regardless of employer, with a focus on evidence of the stress encountered by similarly situated employees for the same employer. This standard allows consideration of the employment conditions of others in the industry when an employer is too small to have other similarly situated employees or when the stress levels of a particular employer are high. This also permits an employee to rely on evidence which is conceivably more readily available to the employee, evidence of the employee's employer, if necessary to satisfy the employee's burden of proof. Id. at 628, 629.

In this case, the claimant testified about his subjective impression relating to five situations that occurred at work which he deemed as stressful. On one occasion, he was asked to refund lost money from a vending machine transaction. On another occasion, a co-worker criticized the pens in the office. The claimant testified that she called him a moron and accused him of making bad decisions. The claimant resolved that situation by responding that he did not order the pens and that the director had placed the order. A third example was moving furniture, although he did not have his stroke while moving furniture, did not move any furniture on the day of the stroke, and was not on any pain medications as a result of moving furniture. A fourth example was that Ms. Salvo put pressure on him to complete his work in a timely manner. Ms. Salvo testified that she did pressured him for his work so she could process it for him and submit it to the State by the tenth of each month.

Finally, the claimant testified that on the day of the stroke, a co-worker "clamored" at him about a mistake on a participant's payroll check. He felt the need to drive to the Administration building to correct the error. On his way, he realized that he did not make a mistake on the check and returned to the office whereupon he yelled at his co-worker. The coworker tried to apologize to him for her error. The claimant then went to the Assistant Director's Office to yell at her about Patty MacNamee and accused Ms. MacNamee of being negligent. Karen Grimm tried to

tell the claimant that it was merely a mistake and asked him to calm down. The claimant kept yelling, and Ms. Grimm began yelling back. He left her office and went to his own. After sitting there for a while, his computer screen became blurry, he couldn't use his left hand, his lips were numb as well as the left side of his face.

However, the claimant offered no evidence demonstrating the stress encountered by other fiscal managers for this employer or any other employer. In the Williams case, the Court upheld the Commission's findings that the claimant failed to prove her case. The claimant's evidence was:

The [Employee] was the only witness to testify on her behalf about the level of stress she experienced at [Employer]. The [Employee]'s testimony obviously involves her subjective perceptions. The [Employee] provided no evidence that her hours, shifts, days, or job duties were extraordinary or unusual when compared with other medical technologists or section managers at [Employer] or anywhere else. When specifically given the opportunity to compare her work schedule with others, she responded that she only knew about her own schedule. Id. at 624 .

The Court opined that the claimant's evidence failed to present a prima facie case for recovery for mental injury due to work related stress:

Here, as the Commission pointed out, the only evidence regarding Employee's stress was her testimony of her own experience and Employer's Exhibit 2. Employee did not demonstrate the stress encountered by other hematologists within the stat lab either for this Employer or for any other employer. Employer's evidence, including Exhibit 2, shows Employee's work conditions were no greater than anyone else in the same position in the stat lab of Employer. The available record does not establish Employee's stress was extraordinary and unusual when compared to other similarly situated employees of Employer or of any other employer. Id. at 629 .

The claimant in this case presented the same type of evidence in this case that the Court rejected in Williams and compels the same result. Based on the evidence, any mental injury must be denied, because the injury is not compensable under the Missouri Workers' Compensation statute.

The case must also be analyzed as a physical injury. Dr. Cohen, a neurologist, examined the claimant in October 2004 and opined that the claimant suffered a cerebrovascular infarction and that he experienced severe work-related stress over a protracted period of time that was a substantial factor causing a 50 % permanent partial disability. He testified that the claimant was "at high risk to have a stroke." See Dr. Cohen deposition, page 17. He opined that the claimant's stress was outrageous and unreasonable based on the history from the claimant, the medical records, the claimant's self assessment, and review of the claimant's job requirements. See Dr. Cohen deposition, pages 15, 16. Dr. Cohen opined that he had "a protracted period of time of this severe mental effect, stress, and a situation that was virtually or nearly impossible for him to deal with. And when that happens to a person with hypertension, it increases enough that

that is a substantial factor that caused this stroke." See Dr. Cohen deposition, page 16. Dr. Cohen testified that he didn't "know and nobody would know what specifically the actual pathologic process [of the stroke] was; whether it was plaque that broke off from his neck or one of the other vessels, whether it was an occlusion of a small vessel deep in his brain, or whether the pressure changed in that vessel." See Dr. Cohen deposition, page 16.

Dr. Goldring, another neurologist, examined the claimant on April 11, 2005, and testified that stress "is not one of our recognized causes of stroke. That's the bottom line. Causes of stroke like any other vascular disease are felt to be related to hypertension, diabetes, elevated cholesterol, smoking, maybe some genetic factors. Stress, per se, of whatever sort is not one of our recognized causes of stroke." See Dr. Goldring deposition, page 18. He testified that the claimant's stroke was "based upon his vascular risk factors of hypertension, diabetes, and elevated cholesterol," that the claimant would have had a stroke with or without stress given those risk factors, and that the claimant's hypertension was not related to his work. See Dr. Goldring deposition, pages 20, 21. He opined that the claimant's work was not a substantial factor causing the stroke, that the stroke was not a work related problem, that the stroke came from a hazard or a risk unrelated to the employment, and the claimant's work was not a proximate cause of his stroke. See Dr. Goldring deposition II, pages 7, 8. He opined that the claimant had three of the four major risk factors for stroke (hypertension, elevated lipids, elevated cholesterol, and diabetes), and that work did not cause the claimant's neurological problems. See Dr. Goldring deposition II, pages 7, 9.

Both of the forensic medical experts are neurologists, but Dr. Goldring's findings appear to be more credible based on the claimant's extensive preexisting conditions. Based on the above findings, the claim is denied.

The claimant did not offer any medical bills or other evidence of the cost of his illness from his stroke, and no compensation can be awarded for any medical expenses from the claimant's illness.

Neither of the forensic experts opined that the claimant required additional medical care for his illness or identified any procedure or medicine to address the claimant's condition. Dr. Cohen opined that the claimant "is going to need to be followed by his primary care physician for the remainder of his life and to take his medication to prevent a recurrent stroke. He needs to avoid stressful situations if at all possible to avoid a recurrent stroke." See Dr. Cohen medical report, page 4. It is difficult to determine how this differs from anyone else with the claimant's preexisting risk factors. He identified no specific medications that the claimant should start consuming.

Dr. Cohen opined that the claimant suffered a 40 % permanent partial disability as a result of the stroke and that he suffered from a 10 % preexisting permanent partial disability as a result of his diabetes and hypertension and a 10 % preexisting permanent partial disability to his right arm. See Dr. Cohen medical report, pages 3, 4. He opined that the claimant's "preexisting conditions or disabilities combine with the primary work-related injury to create a greater overall disability than their simple sum and that due to this combination of disabilities, he is permanently

and totally disabled and that his preexisting conditions or disabilities were a hindrance or obstacle to his employment or reemployment. He needs to be restricted from any driving, reading (sic), walking, sitting, climbing, reaching, or standing." See Dr. Cohen medical report, page 4. There was no contrary evidence, except that the claimant testified that his right elbow condition never kept him from any jobs and he had no restrictions from that condition. Based on the evidence, the claimant suffers from a 40 % permanent partial disability as a result of the stroke and that he suffered from a 10 % preexisting permanent partial disability as a result of his diabetes and hypertension and a 10 % preexisting permanent partial disability to his right elbow. However, none of those disabilities are related to his work for this employer.

Based on the weight of the credible evidence, the claim is denied, because the claimant's work was not a substantial factor causing his stroke and because he did not prove that he suffered work related stress that was extraordinary or unusual by the objective standards imposed by Section 287.120, RSMo Supp. 2009. Although the claimant continues to suffer from the impact of his stroke and a variety of risk factors related to the stroke, he did not submit sufficient evidence to compel the employer to compensate him for past medical expenses or to provide future medical care. Finally, the claimant suffers from a 40 % permanent partial disability as a result of the stroke and that he suffered from a 10 % preexisting permanent partial disability as a result of his diabetes and hypertension and a 10 % preexisting permanent partial disability to his right elbow. However, the weight of the credible evidence compels a finding that the claimant's disabilities are not compensable under the Missouri Workers' Compensation statute.