Ulysses White v. ConAgra Packaged Foods, LLC

A cardiovascular, pulmonary, respiratory, or other disease, or cerebrovascular accident or myocardial infarction suffered by a worker is an injury only if the accident is the prevailing factor in causing the resulting medical condition.

Claimant's medical expert, Dr. Stephen Schuman, testified that employee's work activities on June 30, 2012, were the prevailing factor causing his death, because the weather was hot on that day, and the conditions in the machine shop where employee worked rendered his physical exertions more strenuous (and thus more demanding upon his heart) than they might otherwise have been. ${ }^{1}$ While Dr. Schuman's general theory of medical causation is not, in our view, inherently incredible, after careful consideration, we are not sufficiently persuaded that Dr. Schuman possessed the necessary factual foundation to support his theory.

At best, Dr. Schuman understood that, at the time of his death on June 30, 2012, employee's work exertions included wearing a long-sleeved work uniform and hard hat, ambulating with a brace on his leg in connection with treatment for a recent heel fracture, and standing upright and operating a lathe. But although Dr. Schuman theorized the work activity of operating a lathe would include "some isometric component," he was not more specific as to the exertions he understood such work to entail, and ultimately admitted he had to "guess" what employee was physically doing on the morning of his death. Transcript, pages 61, 102, and 145-46.

Claimant did not present any other evidence to establish the physical exertions involved in employee's operation of the lathe in employer's machine shop. Consequently, we find insufficient evidence on this record to permit us to determine, for example, whether employee's work exertions at the time of his death should be categorized as light, medium, or heavy. Likewise, it is clear to us that Dr. Schuman did not possess such information before he rendered his relevant opinions in this matter.

Dr. Schuman also admitted he premised his opinion on the assumption that, with the exception of some possible breaks, employee was probably operating his lathe from around 6:30 a.m., until around 11:45 a.m. This assumption, however, is demonstrably incorrect: according to the uncontested testimony from employee's supervisor and coworkers, employee was not operating a lathe that entire time, but instead was involved in other activities, such as walking to a nearby water treatment plant at about 9:30 a.m., helping a coworker punch holes in a piece of Plexiglas at about 10:45 a.m., and taking a lunch break from 11:00 to 11:30 a.m. Dr. Schuman did not address these other activities or their possible role in the cardiac event that caused employee's death, because he was clearly unaware of them.

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[^0]: ${ }^{1}$ We note that although the parties included an issue of "occupational disease" as one for determination by the administrative law judge, Dr. Schuman testified only as to an "accident" theory of injury, as he focused on employee's work conditions and exertions on the morning of his death. As a result, we are unable to consider whether, for example, the cumulative strain of working consecutive 12-hour days in hot weather may have played any role in the cardiac event that caused employee's death.

Additionally, although Dr. Schuman pointed to the heat on June 30, 2012, as a necessary component of his opinion that employee's work activity was the prevailing factor causing employee's death, Dr. Schuman admitted he was not aware of the actual temperature that day. Critically, Dr. Schuman further admitted he was unaware of the ambient temperature within the machine shed where employee worked. Instead, Dr. Schuman relied purely on the generalized assertion from employee's coworker that "it was hot." Transcript, page 103.

While we have utmost sympathy for Ms. White, we cannot render an award of compensation on the basis of guesswork or speculation. Because we find Dr. Schuman insufficiently informed as to the relevant facts underlying his own theory of medical causation, we deem his testimony on the subject to be ultimately unpersuasive. Because the cardiac pathology leading up to and causing employee's death is, in our estimation, beyond the realm of lay understanding, we find that the failure to present persuasive expert testimony on the issue of medical causation prevents us from rendering an award in claimant's favor. *Bock v. City of Columbia*, 274 S.W.3d 555, 562 (Mo. App. 2008). We find that claimant has failed to meet her burden of proof with respect to the issue of medical causation. We conclude that employee's work activity of June 30, 2012, was not the prevailing factor causing his heart attack and death.

All other issues are moot.

We affirm and adopt the award of the administrative law judge as supplemented herein.

The award and decision of Administrative Law Judge Hannelore D. Fischer, issued June 1, 2015, is attached and incorporated herein to the extent not inconsistent with this supplemental decision.

Given at Jefferson City, State of Missouri, this **21st** day of January 2016.

John J. Larsen, Jr., Chairman

James G. Avery, Jr., Member

DISSENTING OPINION FILED

Curtis E. Chick, Jr., Member

Attest:

Secretary

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 administrative law judge's award should be reversed, because it is overwhelmingly clear to me that employee's work caused him to suffer the fatal heart attack of June 30, 2012.

I acknowledge the majority's concerns with regard to Dr. Schuman's testimony, but I must strongly disagree that the doctor had insufficient information to support his theory of medical causation. First of all, the evidence is uncontested that the weather on June 30, 2012, was extremely hot; all of the lay witnesses agreed on this point. In fact, it was so dangerously hot that employee's supervisor, Abraham Sellers, felt a need to have a special discussion with his employees on the morning of June 30, 2012. In that discussion, Mr. Sellers reminded his employees to be wary of the effects of heat stroke, to keep water nearby, and to watch out for one another. Especially given Mr. Seller's testimony, I find the majority's minimization of Dr. Schuman's understanding as merely "it was hot" to be an oversimplified and, frankly, an unfair reading of the evidence.

Second, it is also uncontested that the non-air-conditioned machine shop where employee worked was the hottest place to be working for employer on June 30, 2012, save possibly the boiler room. Employee routinely spent entire 12-hour shifts for employer in this hot and stuffy metal building, and according to the unanimous testimony from Mr. Sellers and employee's coworkers, employee was a dedicated worker who kept busy and worked tirelessly throughout his entire 24-year career with employer. Regardless of how we classify employee's usual work activity of running a lathe, Dr. Schuman indicated employee's mere presence in the machine shop on June 30, 2012, combined with the effects of wearing his long-sleeved uniform, hard hat, and foot brace, put an increased demand on employee's heart. Dr. Schuman very persuasively explained that we as human beings dissipate about 25 % of our body heat through our heads, and that employer's work rule requiring employee to wear a hard hat automatically subjected employee to a much greater risk of overheating than the average individual, regardless of how strenuous his work was.

Thus, as Dr. Schuman repeatedly made clear during his deposition, the exact temperature in the machine shop or employee's exact movements in operating the lathe are simply not relevant to Dr. Schuman's theory of medical causation. Yet, the Commission majority wants to decide for Dr. Schuman what facts he should have emphasized. In other words, the Commission majority have appointed themselves the de facto medical experts in this case. But, as the courts have consistently declared, the members of this Commission are not permitted to substitute their own personal lay opinions for those of the testifying experts. See Van Winkle v. Lewellens Prof'l Cleaning, Inc., 258 S.W.3d 889, 898 (Mo. App. 2008); Angus v. Second Injury Fund, 328 S.W.3d 294, 300 (Mo. App. 2010); and Abt v. Miss. Lime Co., 388 S.W.3d 571 (Mo. App. 2012).

To the extent that Dr. Schuman's testimony was indefinite as to the exact details the Commission majority, in their lay opinions, deem necessary to support his causation opinion, the courts have also consistently declared that "[c]autious or indefinite expert

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With regard to the issue whether employee's death arose out of and in the course of his employment, the clear compensability of this case boils down to one simple question. If employee had not been at work on June 30, 2012, would he have been standing or sitting in a non-air-conditioned metal shed, fully clothed in his long-sleeved cotton work uniform, with a hard hat on his head, for twelve hours? The answ