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 De