Ronald Malem v. State of Missouri/Dept. of Corrections

"accident" where the legislature has mandated that we must strictly construe the provisions of Chapter 287. See § 287.800.1 RSMo.

We conclude that the incident on August 12, 2011, was (1) unexpected, (2) traumatic, (3) identifiable by time and place of occurrence, and (4) produced at the time objective symptoms of an injury caused by a specific event during a single work shift-namely, employee's difficulty breathing and his spitting up blood. We conclude, therefore, that employee suffered an accident.

The administrative law judge determined that employee failed to meet his burden of proof with respect to the issue of medical causation, based on an (implied) finding that employer's expert, Dr. Puricelli, provided the more persuasive theory regarding what happened to employee on August 12, 2011. We agree that employee failed to meet his burden of proof with respect to this issue, but for different reasons. Section 287.020.3(1) RSMo provides, in relevant part, as follows:

An injury by accident is compensable only if the accident was the prevailing factor in causing both the resulting medical condition and disability. "The prevailing factor" is defined to be the primary factor, in relation to any other factor, causing both the resulting medical condition and disability.

We cannot adopt the administrative law judge's determination that Dr. Puricelli provided the more persuasive testimony regarding the cause of employee's hypertensive crisis following the accident of August 12, 2011. This is because Dr. Puricelli did not have the correct facts; she believed, for instance, that employee did not fall to the ground during the take down of the inmate. She also based her opinion, in part, on her determination that employee's preexisting hypertension was inadequately treated before August 12, 2011, but we find no clear indication in the record that this was the case, and Dr. Puricelli does not explain how or why she believed employee's hypertension to have been inadequately treated. Employee's unimpeached and credible testimony suggests (and we so find) that he was taking medications for hypertension and was regularly seeing a physician for checkups regarding his high blood pressure before August 12, 2011.

We do agree, however, that employee failed to meet his burden of proof with respect to the issue of medical causation. This is because the only expert medical opinion employee supplied to support his claim is that of Dr. Koprivica that "the takedown of the offender on August 12, 2011, is felt to represent the direct, proximate and prevailing factor precipitating [employee's] hypertensive crisis." Transcript, page 721 (emphasis added). Dr. Koprivica does not explain, in his report, what he meant by the foregoing phraseology, and he was not deposed, so we are left with a causation opinion that is, at best, equivocal with regard to whether the accident was the prevailing factor causing both the resulting hypertensive crisis and disability. Above, we have noted the legislative direction in § 287.020.2 that "[a]n injury is not compensable because work was a triggering or precipitating factor." While we believe an accident may be both a precipitating and the prevailing factor causing a compensable injury, this does not appear to be Dr. Koprivica's opinion in this case. Rather,

Dr. Koprivica says the accident was the prevailing factor that precipitated employee's hypertensive crisis.

We acknowledge that medical causation issues do not turn exclusively upon an expert's usage of (or failure to use) the "magic language" contained in the statute. See Mayfield v. Brown Shoe Co., 941 S.W.2d 31, 36 (Mo. App. 1997). But here, Dr. Koprivica's choice of words raises serious questions regarding his impression of the degree of causation involved. Dr. Koprivica's report fails to provide any further explanation or discussion of causation, and his relevant opinion is rendered in the purely conclusory fashion set forth above. Even if we were to credit this opinion from Dr. Koprivica, ${ }^{1}$ absent further explanation as to what Dr. Koprivica meant by choosing those specific words, we simply are unable to conclude that employee has proven the requisite degree of causation to satisfy the requirements of the statute. For this reason, we affirm the award of the administrative law judge denying employee's claim for compensation.

We affirm and adopt the award of the administrative law judge to the extent it is not inconsistent with our supplemental findings, analysis, and conclusions herein.

The award and decision of Administrative Law Judge Margaret Ellis Holden, issued February 13, 2014, is attached and incorporated by this reference

Given at Jefferson City, State of Missouri, this $10^{\text {th }}$ day of October 2014.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

James G. Avery, Jr., Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

[^0]

[^0]: ${ }^{1}$ Dr. Koprivica also appears to have relied on incorrect facts when he suggested there was "extreme exertion" involved in taking down the inmate. Transcript, page 718. Employee has consistently testified that the event required only minimal exertion on his part, because he was in shape and physically bigger than the inmate.

Employee: Ronald Malam

Injury No. 11-062949

Dependents: N/A

Employer: State of Missouri

Additional Party: N/A

Insurer: Central Accident Reporting Office (CARO)

Health Care Provider: L.E. Cox Medical Center

Hearing Date: $\quad 11 / 18 / 13$

Checked by: MEH

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: ALLEGED 8/12/2011
5. State location where accident occurred or occupational disease was contracted: ALLEGED HOWELL 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? YES
11. Describe work employee was doing and how accident occurred or occupational disease contracted: N/A
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: N/A
14. Nature and extent of any permanent disability: N/A
15. Compensation paid to-date for temporary disability: $\ 2,284.95
16. Value necessary medical aid paid to date by employer/insurer? $\ 6,085.46

1. Value necessary medical aid not furnished by employer/insurer? N/A
2. Employee's average weekly wages: N/A
3. Weekly compensation rate: $\ 399.87
4. Method wages computation: BY AGREEMENT

1. Amount of compensation payable:

Unpaid medical expenses: NONE

0 weeks of temporary total disability (or temporary partial disability)

0 weeks of permanent partial disability from Employer

0 weeks of disfigurement from Employer

Permanent total disability benefits from Employer beginning, N/A for Claimant's lifetime

1. Second Injury Fund liability: Yes No X Open

0 weeks of permanent partial disability from Second Injury Fund

Uninsured medical/death benefits: N/A

Permanent total disability benefits from Second Injury Fund:

weekly differential (N/A) payable by SIF for 0 weeks, beginning N/A

and, thereafter, for Claimant's lifetime

TOTAL: SEE AWARD

1. Future requirements awarded: N/A

Said payments to begin N/A 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 N/A of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant:

RANDY ALBERHASKY

Employee: Ronald Malam

Injury No. 11-062949

Dependents: N/A

Employer: State of Missouri

Additional Party: N/A

Insurer: Central Accident Reporting Office (CARO)

Health Care Provider: L.E. Cox Medical Center

Hearing Date: $\quad 11 / 18 / 13$

Checked by: MEH

The parties appeared before the undersigned administrative law judge on November 18, 2013, for a final hearing. The claimant appeared in person represented by Randy Alberhasky. The employer and insurer appeared represented by Cara Harris. L.E. Cox Medical Centers appeared represented by Jason Shaffer.

The parties stipulated to the following facts: On or about August 12, 2011, the State of Missouri was an employer operating subject to the Missouri Workers' Compensation Law. The employer's liability was fully insured by CARO. On the alleged injury date of August 12, 2011, Ronald Malam was an employee of the employer. The claimant was working subject to the Missouri Workers' Compensation Law. The employment occurred in Howell County, Missouri. The claimant notified the employer of his injury as required by Section 287.420 RSMo. The claimant's claim for compensation was filed within the time prescribed by Section 287.430 RSMo. At the time of