Steven Wright v. Echota Systems, Inc.

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

(Affirming Award and Decision of Administrative Law Judge with Supplemental Opinion)

**Injury No.:** 12-091385

**Employee:** Steven L. Wright

**Employer:** Echota Systems, Inc.

**Insurer:** Twin City Fire Insurance Company

**Additional Party:** Treasurer of Missouri as Custodian of Second Injury Fund

This workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by § 287.480 RSMo. Having reviewed the evidence, read the parties' briefs, heard oral argument, and considered the whole record, we find that the award of the administrative law judge allowing compensation is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Law. Pursuant to § 286.090, RSMo, we affirm the award and decision of the administrative law judge with this supplemental opinion.

The administrative law judge correctly held that employer/insurer admitted to facts as stated in employee's compensation claim by filing an answer over thirty (30) days from the date the division acknowledged receipt of the claim. Division regulation 8 CSR 50-2.010.8(B) provides:

> Unless the Answer to Claim for Compensation is filed within thirty (30) days from the date the division acknowledges receipt of the claim or any extension previously granted, the statements of fact in the Claim for Compensation shall be deemed admitted for any further proceedings.

In employee's claim for compensation, he alleged, that "while in the course and scope of his employment, [he] was injured while climbing seven flights of stairs, exerting unusual and extraordinary physical exertion, which was the prevailing factor in employee suffering a stroke and resulting in severe injury and permanent disability to his body as a whole and cerebrovascular system." *Transcript*, page 21.

The administrative law judge held that employer/insurer admitted that the injury occurred "while in the course and scope of his employment." Employer/insurer argues that the quoted language is not a fact, but the legal issue of whether employee's injury "arose out of and in the course of the employment." § 287.020.3(2), RSMo. We disagree.

The words "while in the course and scope of his employment," as stated in employee's claim merely meant that employee was at work, performing a work-related function, when the injury occurred. The administrative law judge did not deem employer to have admitted a legal conclusion.

1 Subsequently, the administrative law judge fully analyzed the legal issue whether the injury arose out of and in the course of employment.

Injury No.: 12-091385

Employee: Steven L. Wright

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**Employee's injury arose out of and in the course of the employment:**

Section 287.020.3(2), RSMo, provides: "An injury shall be deemed to arise out of and in the course of the employment only if:

(a) It is reasonably apparent, upon consideration of all the circumstances, that the accident is the prevailing factor in causing the injury; and

(b) It does not come from a hazard or risk unrelated to the employment to which workers would have been equally exposed outside of and unrelated to the employment in normal nonemployment life.

The first prong in this statutory test is actually a factual issue. "The determination of whether a particular accident is the 'prevailing factor' causing an employee's condition ... is inherently a factual one ..." *Leake v. City of Fulton*, 316 S.W.3d 528, 532 (Mo. App. 2010) (citing *Endicott v. Display Techs.*, 77 S.W.3d 612, 615 (Mo. banc 2002)).

Therefore, the administrative law judge correctly found that one of the facts admitted by employer/insurer's late answer was that the accident ("exerting unusual and extraordinary physical exertion" while climbing seven flights of stairs) was the prevailing factor causing employee's injury (stroke). Hence, employee established the first prong pursuant to § 287.020.3(2)(a), RSMo.

Had employer/insurer timely filed its answer, then the administrative law judge, and this Commission, would have determined the facts raised in employee's claim, instead of deeming the facts as admitted. Under such circumstances, it would have been very possible for this Commission to not have found that employee established the first prong of this test. But, alas, that is not what is in front of us.

Regarding § 287.020.3(2)(b), RSMo, the administrative law judge stated that "[n]othing in the record would persuade this Court to determine that the accident was the result of a nonemployment risk." *Award*, page 11. We agree.

The administrative law judge identified the risk in this matter by pointing out that employee did not have complications until after "climbing stairs to the seventh floor." *Award*, page 11. Arguably, one could identify "exerting unusual and extraordinary physical exertion" as the risk. However, applying the analysis of *White v. Conagra Packaged Foods, LLC*, 535 S.W.3d 336 (Mo. 2017), the "exerting unusual and extraordinary physical exertion" while climbing seven flights of stairs was the accident, or unexpected traumatic event or unusual strain.

Employer/insurer argues that the risk was the "extraordinary physical exertion," to which employee was equally exposed to outside of work. Employer/insurer pointed out that employee exercised outside of work and that employee admitted to his doctor "that vigorous physical activity did not give him shortness of breath." Employer/insurer Brief, page 21. However, employer/insurer's arguments are not persuasive.

In clarifying the relevant hazard or risk, we cannot disregard the particular circumstances of the case. For example, in *Young v. Boone Electric Coop.*, 462 S.W.3d 783, 790 (Mo. App. 2015) the court held that an employee's injury resulting from slipping on frozen clods of dirt arose out

2 See further discussion below regarding the holding in *White v. Conagra Packaged Foods, LLC*, 535 S.W.3d 336 (Mo. 2017).

Injury No.: 12-091385

Employee: Steven L. Wright

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of his employment. The court stated, "even assuming arguendo that Young was exposed to the hazard of slipping on frozen dirt clods in his nonemployment life, his injury still arose out of his employment because there is nothing in the record to support a conclusion that he was equally exposed to the hazard of slipping on frozen dirt clods at that particular work site in his nonemployment life." *Young*, 462 S.W.3d at 790.

Therefore, we cannot define the risk in this matter so narrowly as "extraordinary physical exertion." Rather, the relevant risk or hazard is extraordinary physical exertion resulting from climbing seven flights of stairs. The record does not establish that employee had such risk outside of his employment. Therefore, the fact that employee exercised or was able to endure other vigorous physical activity does not defeat the claim. There was no evidence in the record that employee was equally exposed to extraordinary physical exertion by climbing seven flights of stairs outside of work.

Because "exerting unusual and extraordinary physical exertion" resulting from climbing seven flights of stairs was the prevailing factor in causing employee's injury (stroke) and the stroke did not come from a risk unrelated to employment, the administrative law judge made the correct legal conclusion that employee's injury arose out of and in the course of his employment.

Section 287.020.3(4), *RSMo. and White v. Conagra Packaged Foods, LLC*:

Due to the nature of the injury in this matter, there is an additional statutory requirement to compensability pursuant § 287.020.3(4), *RSMo*. It provides:

> 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.

The Missouri Supreme Court recently addressed a case involving a cardiovascular injury. *White v. Conagra Packaged Foods, LLC*, 535 S.W.3d 336 (Mo. 2017). The court held that the requirement of § 287.020.3(4), *RSMo*, was "in addition to and distinct from the requirement imposed" pursuant to § 287.020.3(2), *RSMo*. *Id*.

The court in *White* acknowledged that "[i]n a simple slip-and-fall case, the accident and the employee's injury usually are distinct and easily identifiable. It can be harder, however, in cases involving cardiovascular events." *White*, 535 S.W.3d at 339. The same can be said for a "cerebrovascular accident" or other medical condition referred to in 287.020.3(4), *RSMo*.

In its analysis, the court used the terminology "cardiovascular event," and held that:

> Section 287.020.3(4) makes it clear that - when a cardiovascular event kills or injures an employee at work - the claimant must show: (1) there was an 'accident,' e.g., some specific trauma or strain of the sort required by section 287.020.2; (2) there was an 'injury,' e.g., a cardiovascular event resulting in death or damage to heart muscles, the brain, or other tissues; and (3) the former was the prevailing factor in causing the latter.

*White*, 535 S.W.3d at 340.

3 The reason for this was to avoid a technical dispute as to the exact cardiovascular condition at issue. See *White*, 535 S.W.3d n.2.

Injury No.: 12-091385

Employee: Steven L. Wright

-4-

Pursuant to this analysis, there needs to be a separate and distinct accident (unexpected traumatic event or unusual strain) that is independent of the stroke or heart attack that must be the prevailing factor in causing the "injury." § 287.030(2)(a), RSMo. The stroke or heart attack, identified in § 287.020.3(4), RSMo, can be "the injury" if the independent accident causes the resulting medical condition.

In this matter, employee "exert[ed] unusual and extraordinary physical exertion" while climbing seven flights of stairs. This was the unexpected traumatic event or unusual strain that was the prevailing factor in causing the stroke and subsequent medical condition. We note once again that the requirement of whether the accident is the prevailing factor in the resulting medical condition is a question of fact.4 Therefore, by its late answer, employer/insurer admitted that the "exerting unusual and extraordinary physical exertion" while climbing seven flights of stairs resulted "in severe injury and permanent disability to [employee's] body as a whole and cerebrovascular system." Therefore, the requirement of § 287.020.3(4), RSMo, is met.

**Conclusion**

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

The award and decision of Administrative Law Judge Mark Siedlik is attached and incorporated herein to the extent not inconsistent with this supplemental decision.

We approve and affirm the administrative law judge's allowance of attorney's fee herein as being fair and reasonable.

Any past due compensation shall bear interest as provided by law.

Given at Jefferson City, State of Missouri, this _______ day of January 2019.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

Robert W. Cornejo, Chairman

Reid K. Forrester, Member

SEPARATE OPINION FILED

Curtis E. Chick, Jr., Member

Attest:

Secretary

4 "The determination of whether a particular accident is the 'prevailing factor' causing an employee's condition ... is inherently a factual one ..." *Leake v. City of Fulton*, 316 S.W.3d 528, 532 (Mo. App. 2010) (citing *Endicott v. Display Techs.*, 77 S.W.3d 612, 615 (Mo. banc 2002)).

TI11600189

Appeal No.: 12-091385

Employee: Steven L. Wright

I have reviewed and considered all of the competent and substantial evidence on the whole record. Based on my review of the evidence as well as my consideration of the relevant provisions of the Missouri Worker's Compensation Law, I believe the decision of the administrative law judge should be affirmed, but for somewhat different reason than the Commission majority.

In its analysis of § 287.020.3(4), RSMo, the majority identified the accident, or unusual strain, as the "exerting unusual and extraordinary physical exertion" while climbing seven flights of stairs. However, the majority also identified the same as the hazard or risk that triggered the accident. Applying this rather circular logic, the majority concluded the elements required in § 287.020.3(4), RSMo, were met. However, if the hazard or risk must be unique and separate from the accident, which is also separate and distinct from the injury (heart attack), then the majority's logic does not meet the requirements of § 287.020.3(4), RSMo.

I suggest a slightly different analysis regarding strokes, heart attacks, and other specific conditions set forth in § 287.020.3(4), RSMo. Section 287.020.3(4), RSMo, recognizes the unique characteristics of these types of diseases or accidents and deems them "injuries," compensable pursuant to the workers' compensation laws, upon the proper conditions. It provides:

> 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. (emphasis added).

The statute describes some of the listed conditions with the term "disease," while also listing a "cerebrovascular accident," such as a stroke, and "myocardial infarction," such as a heart attack. Subsequently, the statute provides that the occurrence of one of these different events becomes the "injury," but "only if the accident is the prevailing factor in causing the resulting medical condition." *Id.* (emphasis added).

I do not interpret the second use of the word "accident" in § 287.020.3(4), RSMo, to refer to a separate "unexpected traumatic event or unusual strain" outside of or in addition to the "cardiovascular, pulmonary, respiratory, or other disease, or cerebrovascular accident or myocardial infarction suffered by a worker."

Instead, the stroke or heart attack, or any condition as listed in § 287.020.3(4), RSMo, may be deemed "an injury," as defined pursuant to § 287.020.3(1), RSMo, but only if the accident (referring to the stroke or heart attack) "is the prevailing factor in causing the resulting medical condition." § 287.020.3(4), RSMo. In such situations, there does not need to be a prior or separate unexpected traumatic event or unusual strain to trigger the stroke or heart attack.

To hold otherwise would mean, for example, that an employee could not have a compensable work-related injury when one's regular work conditions present a hazard or risk not unrelated to work that results in or triggers a stroke or heart attack, but there is no other "unexpected

---

*6 Similarly, the majority used the same circular language to establish the elements of § 287.020.3(2), RSMo.*

*7 A cardiovascular, pulmonary, respiratory, or other disease ... § 287.020.3(4), RSMo.*

*8 I also do not interpret that the second use of the word "accident" only refers to a "cerebrovascular accident," but to all of the unique events listed in the first clause of § 287.020.3(4), RSMo. To find otherwise would reach an absurd and confusing result.*

Injury No.: 12-091385

Employee: Steven L. Wright

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traumatic event or unusual strain." § 287.020.2, RSMo. One example of such a case could be where a factory worker suffers from a myocardial infarction because of poor ventilation or excessive heat without any other "unexpected traumatic event or unusual strain."

Under this interpretation, instead of viewing the requirements of § 287.020.3(4), RSMo, as a distinct test from § 287.020.3(2), RSMo, one should substitute § 287.020.3(4), RSMo, for § 287.020.3(2)(a), RSMo. The language of the two provisions are nearly identical, but in one, the "accident" may become the "injury" (287.020.3(4)), as opposed to the "accident" being the prevailing factor in causing "the injury" (287.020.3(2)(a)). Of course, the risk or hazard analysis still needs to be determined pursuant to § 287.020.3(2)(b), RSMo. This will prevent a scenario where injuries are deemed compensable merely because they occurred while the employee is working. See *Pope v. Gateway to the W. Harley Davidson*, 404 S.W.3d 315, 321-22 (Mo. App. 2012).

I agree with the majority that the risk (the "exerting unusual and extraordinary physical exertion" while climbing seven flights of stairs) was not a risk employee was exposed to outside of work. Employee's myocardial infarction came from that risk and, pursuant to § 287.020.3(4), RSMo, became the compensable "injury" as defined pursuant to § 287.020.2, RSMo, that resulted in employee's medical condition. Therefore, pursuant to § 287.020.3(4), RSMo, employee's injury is compensable.

For these reasons, I affirm as supplemented herein the administrative law judge's award allowing benefits.

Curtis E. Chick, Jr., Member

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*Section 287.020.3(4), RSMo, is a more specific provision regarding "[a] cardiovascular, pulmonary, respiratory, or other disease, or cerebrovascular accident or myocardial infarction suffered by a worker[,]" as opposed to the more general language of § 287.020.3(2)(a), RSMo.*

The court in *Pope* stated that, "A worker's compensation award is permitted only if evidence shows a causal connection to employment other than the fact that the injury occurred at work." *Pope*, 404 S.W.3d at 321. A compensable claim is one where an employee "was injured because he was at work, and not simply because [he] sustained an injury while at work." *Id.*, at 321-22.

Issued by Division of Worker's Compensation

Employee: Steven Wright

Injury No. 12-091385

**Employee:** Steven L. Wright

**Dependents:** N/A

**Employer:** Echota Systems, Inc.

**Additional Party:** Treasurer of the State of MO as the Custodian of the Second Injury Fund

**Insurer:** Twin City Fire Insurance Company

**Hearing Date:** September 27, 2017; record closed Nov 11, 2017

Checked by: MSS/pd

1. Are any benefits awarded herein? Yes
2. Was the injury or occupational disease compensable under Chapter 287? Yes
3. Was there an accident or incident of occupational disease under the Law? Yes
4. Date of accident or onset of occupational disease: April 19, 2012
5. State location where accident occurred or occupational disease was contracted: Kansas City, Jackson 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? Yes
9. Was claim for compensation filed within time required by Law? Yes
10. Was employer insured? Yes, Twin City Fire Insurance Company
11. Describe work employee was doing and how accident occurred or occupational disease contracted: Employee climbed seven flights of stairs, resulting in stroke with subsequent seizure disorder

Issued by Division of Worker's Compensation

Employee: Steven Wright

Injury No. 12-091385

1. Did accident or occupational disease cause death? No

1. Part(s) of body injured by accident or occupational disease: Body as a whole and cerebrovascular system

1. Nature and extent of any permanent disability: Permanent total disability

1. Compensation paid to date for temporary disability: $0.00

1. Value necessary medical aid paid to date by employer/insurer: $0.00

1. Value necessary medical aid not furnished by employer/insurer: 831,515.86

1. Employee's average weekly wages: 800.00

1. Weekly compensation rates: $533.33

1. Method wages computation: Stipulation of parties

1. Amount of compensation payable: Weekly benefits at $533.33 per week from April 20, 2012 to date and to continue for the duration of the claimant's disability.

1. Second Injury Fund liability: None

1. Future requirements awarded: permanent total disability benefits paid for the lifetime of the employee at the weekly rate of $533.33, reasonable and necessary medical treatment and all benefits under the law

Attorney's fees of 25 percent of sums recovered and to be recovered is awarded to Zackary Kolich for his legal services rendered.

Issued by Division of Worker's Compensation

Employee: Steven Wright

Injury No. 12-091385

**Employee:** Steven L. Wright

**Dependents:** N/A

**Employer:** Echota Systems, Inc.

**Additional Party:** Treasurer of the State of MO as the Custodian of the Second Injury Fund

**Insurer:** Twin City Fire Insurance Company

**Hearing Date:** September 27, 2017; record closed Nov 11, 2017 Checked by MSS/pd

On September 27, 2017, the employee and employer appeared for a temporary hearing. The employee, Steven L. Wright, was represented by counsel, Zachary A. Kolich. The employer, Echota Systems, Inc., appeared through counsel, Michael P. Bandre. The insurer, Twin City Fire Insurance Company, appeared through counsel, Kevin J. Kruse. The Second Injury Fund was represented by Candace Cole. The Division has jurisdiction to hear the case pursuant to §287.110 RSMo.

The parties stipulate as follows:

1. On or about April 19, 2012, Echota Systems, Inc. was an employer operating subject to Missouri's Workers' Compensation law and its liability was fully insured;

1. On or about April 19, 2012, Steven L. Wright was an employee of Echota Systems, Inc., working subject to the laws in Kansas City, Jackson County, Missouri;

1. Employee provided timely notice of the accidental injury;

1. A claim for compensation was filed within the time allowed by law;

1. The employee's compensation rate shall be $533.33.

Issued by Division of Worker's Compensation

Employee: Steven Wright

Injury No. 12-091385

The parties request the Division to determine:

1. Whether employee met with personal injury by accident arising out of and in the course of his employment on April 19, 2012;
2. Whether employee's accidental injury on April 19, 2012 was the prevailing factor in causing injury to his body as a whole;
3. Whether insurer must provide employee with medical treatment necessary to cure and relieve the effects of employee's whole body injury;
4. Whether insurer must reimburse employee for expenses relative to medical treatment related to the accidental injury;
5. Nature and extent of disability;
6. Whether an Answer to Claim for Compensation was timely filed.

At the hearing, stipulations were entered, issues were identified and the following exhibits were admitted into evidence:

- Claimant's Exhibits A through RR were admitted as follows:

- Exhibit A - Claim for Compensation and Acknowledgement

- Exhibit B - Answer to Claim for Compensation and Acknowledgement

- Exhibit C - Marriage License

- Exhibit D - Deposition of Steven L. Wright, dated 4/28/2015

- Exhibit E - Deposition of Steven L. Wright, dated 6/20/2017

- Exhibit F - Deposition and exhibits of P. Brent Koprivica, M.D., dated 7/15/2016

- Exhibit G - Deposition and exhibits of Michael J. Dreiling, dated 6/21/2016

- Exhibit H - University of Kansas Hospital Medical Records

- Exhibit I - University of Kansas Hospital Itemized Billing (1 of 4)

- Exhibit J - University of Kansas Hospital Itemized Billing (2 of 4)

- Exhibit K - University of Kansas Hospital Itemized Billing (3 of 4)

- Exhibit L - University of Kansas Hospital Itemized Billing (4 of 4)

- Exhibit M - Mid America Rehab Hospital Medical Records

- Exhibit N - Mid America Rehab Hospital Itemized Billing

- Exhibit O - Interim Healthcare Medical Records and Itemized Billing

- Exhibit P - KCMO Medical Bureau Medical Records

- Exhibit Q - KCMO Medical Bureau Itemized Billing

- Exhibit R - Mid America Cardiology Medical Records (1 of 2)

- Exhibit S - Mid America Cardiology Medical Records (2 of 2)

Issued by Division of Worker's Compensation

Employee: Steven Wright

Injury No. 12-091385

Exhibit T - Mid America Cardiology Itemized Billing

Exhibit U - Shawnee Mission Primary Care Medical Records

Exhibit V - Shawnee Mission Physicians Group Medical Records

Exhibit W - Shawnee Mission Physicians Group Itemized Billing

Exhibit X - Shawnee Mission Medical Center Medical Records

Exhibit Y - Shawnee Mission Medical Center Itemized Billing

Exhibit Z - Olathe Medical Services, Inc. Medical Records

Exhibit AA - Olathe Medical Services, Inc. Itemized Billing

Exhibit BB - Rehabilitation Institute of KC Medical Records

Exhibit CC - Rehabilitation Institute of KC Itemized Billing

Exhibit DD - Miami County Medical Center Medical Records (1 of 2)

Exhibit EE - Miami County Medical Center Medical Records (2 of 2)

Exhibit FF - Miami County Medical Center Itemized Billing

Exhibit GG - CVS Pharmacy Records & Itemized Billing

Exhibit HH - CVS Caremark Pharmacy Records & Itemized Billing

Exhibit II - WalMart Pharmacy Records & Itemized Billing

Exhibit JJ - Life Flight Eagle Records & Itemized Billing

Exhibit KK - Vintage Park at Louisburg Records & Itemized Billing

Exhibit LL - Madonna Rehabilitation Hospital Medical Records

Exhibit MM - Madonna Rehabilitation Hospital Itemized Billing

Exhibit NN - Lakeview Village Medical Records

Exhibit OO - Mobilex USA Itemized Billing

Exhibit PP - Lakeview Village Itemized Billing

Exhibit QQ - Delmar Gardens of OPKS Medical Records

Exhibit RR - Delmar Gardens of OPKS Itemized Billing

Employer/Insurer's Exhibit Nos. 1 through 7 were admitted as follows:

Exhibit 1 - Deposition and exhibits of Michael W. Farrar, M.D., dated 12/9/2016

Exhibit 2 - Deposition and exhibits of John J. Sand, M.D., dated 1/10/2017

Exhibit 3 - Shawnee Mission Physicians Group - Dr. Buss (5/9/2006 - 3/29/2013)

Exhibit 4 - Shawnee Mission Physicians Group - Dr. Buss (7/11/2007 - 7/1/2015)

Exhibit 5 - Mid America Cardiology Records (10/13/2006 - 2/5/2016)

Exhibit 6 - KU Neurology - Dr. Rippee (2/20/2013 - 10/23/2015)

Exhibit 7 - Medical Billing Summary

STATEMENT OF FACTS

Employee, a self-employed 70-year old male, was performing low voltage electrical work in the normal course and scope of his employment on April 19, 2012. During the day in question, employee arrived at the job site at approximately 6:00 a.m. to begin his work day. Employee was installing a fire alarm system at a senior living facility in Kansas City, Jackson County, Missouri. Upon his arrival at the job site, he walked in the front door of the facility to discover that the elevator was marked "out of order."

Issued by Division of Worker's Compensation

Employee: Steven Wright

Injury No. 12-091385

In order to start his day, employee needed to reach the seventh floor of the building, which was the location of his lockbox where he kept his tools overnight. In order to reach his lockbox, employee had to go up the staircase because of the broken elevator. Employee testified that going up the stairwell to get to his tools was unusual and out of the ordinary, whereas typically he would take the elevator to reach the seventh floor.

In making his way up the staircase, he found himself out of breath and was forced to take a brief rest on the fifth floor. After resting, he reached the seventh floor and arrived at his toolbox when he felt left side weakness and the symptoms of a stroke coming on. Employee crumpled to the floor and lay on the ground until he was discovered by another individual working in the building.

Claimant by nature of his work has been involved in the wiring install type of activities for a number of years. The testimony and evidence presented indicated that in the months preceding the claimant's April 20, 2012 injury the claimant had done work of the same nature at high-rise buildings in Ft. Scott, Kansas and Fredonia, Kansas which required the claimant to stand, walk, climb stairs and ladders the majority of each day. The claimant was also in those jobs as with the job involving the injuries of April 2012 required the claimant to lift and carry wire weighing between 20 to 50 pounds from floor to floor and that the claimant would be up and down flights of stairs a number of times each and every day. Further presented showed that outside of work the claimant walked daily for exercise.

Employee was immediately taken by ambulance to the University of Kansas Hospital, where surgery was performed on his brain to the stop the bleeding and repair the blood vessels damaged as a result of hemorrhagic stroke. Employee completed his post-surgical care with the University of Kansas Hospital and was transferred to Lakeview Village. Following his treatment with Lakeview Village, he was transferred to Delmar Gardens. Upon completion of care at Delmar Gardens, employee returned home and was provided in-home health care treatment through Interim Health.

On November 15, 2012, employee suffered a seizure. Employee was returned to University of Kansas Hospital via life flight helicopter. Following his seizure, employee completed treatment at University of Kansas Rehabilitation Clinic and was then transferred to Miami County Rehabilitation. After completing this care, he was transferred to KC Rehabilitation Institute. Following completion of his treatment regimen at each of the three rehabilitation centers, employee obtained treatment from the Madonna Clinic in Lincoln, Nebraska.

In December of 2014, employee suffered another stroke while at his home. Employee was returned to the University of Kansas Hospital. No additional surgery was required and employee was placed back into the University of Kansas rehabilitation department. Following this round of rehabilitation, employee was returned to the Madonna Clinic in Nebraska, where he spent almost an entire month during February, 2015.

Upon his return home from Madonna, employee suffered another seizure on or about February 28, 2015. He was taken to the Miami County emergency room for treatment. Employee then completed another round of treatment at the KC Rehabilitation Institute in

Issued by Division of Worker's Compensation

Employee: Steven Wright

Injury No. 12-091385

March, 2015. During his stay at the KC Rehabilitation Institute, employee was taken to Shawnee Mission Medical Center emergency room on March 12, 2015 for symptoms thought to be related to yet another stroke. Employee was next transferred to Mid America Rehabilitation Center and released back to his home following completion of care. Employee currently resides at the Life Care Center of Osawatomie on a permanent basis.

As a result of the April 19, 2012 stroke, employee relates difficulty with his balance, is bound to a wheelchair and has no use of his left side. Employee also has issues with his vision and short-term memory related to the 2012 stroke. Employee continues to have seizures, which occur with no warning at all. He required a hospital bed to sleep in his home and takes various medications, referring to himself as a "walking pharmacy." Employee is unable to drive and cannot dress himself, use the restroom or bathe on his own. While he is able to feed himself, he cannot cook his own meals. The only physical activities employee can perform to care for himself on his own are brushing his teeth and combing his hair. The 2014 stroke resulted in severe impairment of speech and some mild right side weakness.

Employee's claim was denied and no authorized benefits have been paid or provided. Accordingly, employee made application for monetary and medical benefits pursuant to Chapter 287 RSMo. Employee's Claim for Compensation was timely filed and acknowledged by the Missouri Division of Workers' Compensation as received and processed on April 3, 2013. Receipt of Insurer's Answer to Claim for Compensation was acknowledged by the Division on August 5, 2014.

MEDICAL EVIDENCE

Michael W. Farrar, M.D., provided a written report and testified at deposition at the request of the insurer. Dr. Farrar is a general adult cardiologist. Dr. Farrar's opinions were issued after reviewing the voluminous medical records relative to employee's treatment subsequent to his April 19, 2012 stroke and without visiting with or examining the employee personally. However, Dr. Farrar testified that it is very common for a physician in his capacity to primarily rely upon medical records and reports without an actual examination of the patient in question. Specific to this claim, Dr. Farrar testified that there would be no benefit to him having actually seen and examined employee in determining his opinions and conclusions regarding causation.

Dr. Farrar testified that Employee sustained a hemorrhagic stroke after climbing steps to the floor where he was going to do some electrical work as the elevator was broken. Dr. Farrar testified that Employee has several medical problems pre-existing and pre-dating the April 19, 2012 stroke. Specifically, he understood that employee suffered a cardio embolic stroke, or a blood clot that breaks loose from the heart and travels into the brain causing a stroke in 2015.

Dr. Farrar testified that this stroke occurred because employee had atrial fibrillation, or an irregular heartbeat. Dr. Farrar also indicated that employee had coronary artery disease (arthrosclerosis) that had apparently occluded or completely blocked employee's right coronary artery. Dr. Farrar indicated that employee suffered from hypertension and hyperlipidemia, which he explained in medical terms were high blood pressure and elevated cholesterol and

Issued by Division of Worker's Compensation

Employee: Steven Wright

Injury No. 12-091385

triglycerides. Dr. Farrar further commented that employee had the preexisting condition of Type II Diabetes Mellitus with insulin dependency and was also anticoagulated with Warfarin prior to his April, 2012 stroke.

In review of the employee's April 19, 2012 CT scans, Dr. Farrar indicated the results showed multiple lacunar infarcts, meaning that at some point in time, employee had had several strokes related to his high blood pressure. Dr. Farrar opined that employee then had a large intracranial or intracerebral bleed hemorrhage, which was the acute hemorrhagic stroke on the day in question. Dr. Farrar testified that it is more probably true than not that employee had had prior strokes and that he had also suffered from an additional stroke in December of 2014. The cause of the December, 2014 stroke was that, according to Dr. Farrar, employee could no longer take his blood thinning medication because of the hemorrhagic stroke, and that because he was not on blood thinning medication; he was not protected from his atrial fibrillation and had another stroke because of it. Dr. Farrar went on to testify that the subsequent stroke in December of 2014 was indeed the consequence of his inability to continue appropriately treating his atrial fibrillation.

As a result of employee's multiple comorbidities, Dr. Farrar testified that employee was at a significantly higher risk of stroke than a normal person his age. In fact, Dr. Farrar testified that having atrial fibrillation alone puts an individual at five times greater risk of having a stroke in comparison to the general population without considering any of employee's other comorbidities.

Dr. Farrar opined that employee sustained a hemorrhagic stroke on April 19, 2012. Dr. Farrar confirmed that intracerebral hemorrhage is the same terminology as a hemorrhagic stroke. While a hemorrhagic stroke is less common than a cardio embolic stroke or ischemic stroke, Dr. Farrar indicated that it is extremely unlikely that the April 19, 2012 stroke was embolic in nature. Dr. Farrar also opined that the prevailing primary factor in causing the April 19, 2012 stroke was employee's atrial fibrillation and history of coronary artery disease.

John J. Sand, M.D., is a neurologist who examines and treats patients with the same or similar conditions as employee in his every day practice. At the request of the insurer, Dr. Sand reviewed the voluminous medical records and took a history from employee on December 1, 2016. Dr. Sand also performed a physical examination of employee in preparation of issuing a written report and eliciting deposition testimony relative to this claim.

Dr. Sand confirmed the employee's multiple preexisting comorbidities and provided detailed testimony relative to the medical differences between ischemic stroke and hemorrhagic stroke. Dr. Sand testified that Employee's April 19, 2012 stroke was likely an embolic stroke. Dr. Sand stated that his opinion was allegedly confirmed by the University of Kansas Medical records. However, careful review of the University of Kansas treatment records identifies employee's April 19, 2012 stroke as hemorrhagic and notes a history of prior ischemic/embolic stroke in 2005. Dr. Sand opined that employee's physical activity of walking up seven flights of stairs on April 19, 2012 was not the prevailing factor in causing his stroke. Instead, Dr. Sand testified that the prevailing factor in causing the stroke was employee's preexisting medical illnesses, primarily, his atrial fibrillation and being on anti-coagulation medication.

Issued by Division of Worker's Compensation

Employee: Steven Wright

Injury No. 12-091385

At the request of employee's attorney, P. Brent Koprivica, M.D., reviewed the voluminous medical records in this matter, examined employee on December 28, 2013, and provided medical opinions by way of written reports and deposition testimony. Dr. Koprivica testified that he was able to review the more than 10,000 pages of medical records from the University of Kansas Hospital.

Dr. Koprivica identified the primary injury in this claim as a hemorrhagic stroke suffered by employee on April 19, 2012. Dr. Koprivica testified that employee's brain began to bleed, resulting in a stroke that produced left-sided loss of abilities, including hemiplegia (paralysis) and hemiparesis (weakness). Dr. Koprivica indicated that employee was wheelchair bound at the time of his examination.

Dr. Koprivica testified that his opinion with respect to the cause of the stroke and resulting conditions was multi-factorial. Dr. Koprivica confirmed that at the time of the incident, employee had a number of risk factors that were present, including a history of vascular disease, coronary artery disease, Type II Diabetes Mellitus, high cholesterol, high blood pressure, chronic atrial fibrillation and a history of a prior embolic stroke. However, Dr. Koprivica went on to opine that the prevailing factor in terms of the development of the brain bleed on April 19, 2012 was the unusual stress that occurred on that date when employee was working on the seventh floor of the building and the elevator was broken, requiring employee to climb seven flights of stairs to retrieve his tools. Dr. Koprivica went on to confirm his opinion by stating that, while employee was certainly at risk of having a stroke because of the other factors involved, concluding that the stroke would have occurred on that day at that time was pure speculation and could not be predicted. Instead, the unusual stress, which elevated employee's blood pressure and led to the bleed, is the event that resulted in employee to having the stroke.

Dr. Koprivica further testified that it was impractical to determine a date of maximum medical improvement, based on employee's ongoing and indefinite treatment needs. However, Dr. Koprivica unequivocally testified that employee has been totally disabled since April 19, 2012.

Dr. Koprivica also provided his opinion that he believes employee will need to have very meticulous medical management of his multiple systemic conditions as a result of the April 19, 2012 stroke. As employee is now at further risk of complication because of the April 19, 2012 stroke, employee will now require ongoing control of his cholesterol, diabetes and high blood pressure. Additionally, Dr. Koprivica opined that, as a result of the complication of the stroke, employee has developed a seizure disorder which will require medical monitoring and anticonvulsants. Dr. Koprivica indicated that the seizure disorder is a sequelae that is the natural and probable consequence of the stroke that occurred on April 19, 2012 and that the medical treatment for the seizure disorder would flow from the stroke.

With regard to permanent restrictions, Dr. Koprivica provided his opinion that employee will require ongoing permanent restrictions or limitations. Employee has physiological abnormalities that are going to be present for the remainder of his life. Employee is limited in terms of being able to stand and crawl and walk and climb. He cannot physically perform those activities in Dr. Koprivica's opinion. Employee has also lost his ability to use his non-dominant

Issued by Division of Worker's Compensation

Employee: Steven Wright

Injury No. 12-091385

left upper extremity, which has left employee's left upper extremity useless in terms of performing any vocational activities. Employee is also required to use a wheelchair for mobility.

Dr. Koprivica opined that employee is permanently and totally disabled and that the sequelae from his hemorrhagic stroke that occurred in the work incident on April 19, 2012 is permanently and totally disabling when considered in isolation in and of itself. Dr. Koprivica reviewed the vocational opinion Mr. Michael J. Dreiling, which Dr. Koprivica used to confirm his opinions regarding permanent total disability. Dr. Koprivica went on to testify that he felt employee was permanently and totally disabled based upon the primary injury in isolation, without any consideration of progression or sequelae that occurred since the time of his evaluation, nor did employee's pre-existing conditions play any role. Dr. Koprivica testified that employee is permanently and totally disabled under both Kansas and Missouri workers' compensation laws.

VOCATIONAL EVIDENCE

At the request of employee's attorney, employee was evaluated by Michael J. Dreiling, a vocational rehabilitation consultant, for a vocational evaluation on March 4, 2014. Mr. Dreiling compiled a vocational profile of employee consisting of a 66-year old male, high school graduate, with training in electronics, with a work history where he had primarily working in the field of performing administrative and supervisory functions and capacities, also working in the field where he did the actual hands-on running and installing of low-voltage wiring. Mr. Dreiling's vocational profile also identified very significant medical disability and injury as a result of the April 19, 2012 stroke, resulting in significant limitations and restrictions. Further, Mr. Dreiling testified that employee does not possess transferable skills and would not be a candidate for vocational rehabilitation.

Based upon these factors and employee's vocational profile, Mr. Dreiling opined that employee could not return to any of his past relevant work in the open labor market and was not employable in the open labor market. Specifically, Mr. Dreiling testified that employee is essentially and realistically unemployable in the open labor market and that that it is not realistic that employee would be hired into a new position or able to create his own business. As such, Mr. Dreiling opined that employee is permanently and totally disabled.

Insurer did not arrange for employee to be evaluated by its own vocational expert.

FINDINGS OF FACTS AND RULINGS OF LAW

For the reasons stated below, I find employee did meet with personal injury by accident arising out of and in the course of his employment on April 19, 2012. Further, said accidental injury was the prevailing factor in causing injury to employee's body as a whole and cerebrovascular system:

For an award of benefits to be to be appropriate, employee must prove that the workplace accident was the prevailing factor in causing the injury and the disability (in this case, the April

10

Issued by Division of Worker's Compensation

Employee: Steven Wright

Injury No. 12-091385

19, 2012 stroke). RSMo. §287.020.3(1). In other words, employee's stroke must not have come from a hazard or risk unrelated to the employment to which employee would have been equally exposed outside of and unrelated to the employment in normal nonemployment life. RSMo. §287.020.3(2)(b). More specifically, the cerebrovascular accident suffered by employee is an injury only if the accident is the prevailing factor in causing the resulting medical condition. RSMo. § 287.020.3(4).

8 CSR 50-2.010.8(B) states: "Unless the Answer to Claim for Compensation is filed within thirty (30) days from the date the division acknowledges receipt of the claim or any extension previously granted, the statements of fact in the Claim for Compensation shall be deemed admitted for any further proceedings." The Court addressed this issue in Lumbard-Bock v. Winchell's Donut Shop, 939 S.W.2d 456. In Lumbard-Bock, the Court determined that as a matter of law, when an employer fails to file a timely answer to a claim for compensation, the employer admits all factual allegations contained within the claim. The determination of whether a particular accident is the "prevailing factor" causing and employee's condition is inherently a factual one. Leake v. City of Fulton, 316 S.W.3d 528 (Mo. App., 2010).

In his Claim for Compensation, employee alleged injuries to his body as a whole and cerebrovascular system. Employee alleged that the injury was sustained in the course and scope of his employment on April 19, 2012. In his Claim, employee also alleged that he was injured while climbing seven flights of stairs, exerting unusual and extraordinary physical exertion, which was the prevailing factor in employee suffering a stroke and resulting in severe injury and permanent disability to his body as a whole and cerebrovascular system. Employee's Claim for Compensation was acknowledged by the Missouri Division of Workers' Compensation on April 3, 2013. Insurer had thirty days from that date to file its Answer to Claim for Compensation. An answer was not filed within that time period. Insurer did not file an Answer to employee's claim until August 5, 2014, more than one year after receipt of employee's claim was acknowledged by the Division. Therefore, all factual allegations contained in employee's Claim for Compensation are deemed admitted.

In light of these factual admissions, this Court is bound by law to find that employee suffered a stroke on April 19, 2012, resulting in severe injury and permanent disability to his body as a whole and cerebrovascular system. Further, it is admitted that employee suffered the stroke in the course and scope of his employment after climbing seven flights of stairs, exerting unusual and extraordinary physical exertion in the process. It is also admitted that the accident was the prevailing factor in causing the stroke.

In determining that the accident and injury arose out of and in the course of his employment, there is nothing contained in the record identifying a hazard or risk unrelated to the employment to which employee would have been equally exposed outside of and unrelated to the employment in normal nonemployment life. Employee provided credible and uncontroverted testimony that he was required to reach his toolbox on the morning of April 19, 2012 before he was able to begin his day installing fire alarms. Because the elevator to the seventh floor of the building was out of order, employee's only choice was to use the stairs. It was only after climbing the stairs to the seventh floor that employee began noticing symptoms associated with his stroke. Nothing in the record would persuade this Court to determine that the accident was the result of a nonemployment risk. As such, and in addition to the factual admissions that

Issued by Division of Worker's Compensation

Employee: Steven Wright

Injury No. 12-091385

employee was in the course and scope of his employment and that the accident was the prevailing factor in causing the stroke, I find that employee's accident and injury arose out of and in the course of his employment.

Regarding nature and extent, I find employee is permanently and totally disabled. Based upon the substantial credible evidence contained in the record, I find employee is entitled to permanent total disability benefits. The specific medical opinion of Dr. Koprivica and the vocational opinion of Mr. Dreiling that employee is permanently and totally disabled from returning to gainful employment as a result of the April 19, 2012 accident is undisputed. Dr. Sand also testified that employee is unemployable. Dr. Sand further opined that employee will not make further neurologic recovery to change this fact. Moreover, these opinions are supported by employee's credible testimony. Therefore, insurer is liable and must provide employee with permanent total disability benefits at a weekly compensation rate of $533.33 from April 19, 2012 to present. Benefits shall then continue to be paid at a weekly rate of $533.33 for the lifetime of the employee.

The Second Injury Fund was made party to this claim and participated in the trial which took place. It is documented the claimant's preexisting condition of ill by the medical records presented and by the testimony by the expert witnesses that the claimant had prior to the accident on April 19, 2012, a previous stroke in 2005, atrial fibrillation, coronary artery disease, high blood pressure, hyperlipidemia, Type 2 diabetes, together with a past history of smoking and being a current tobacco chewer. The claimant further had a history of alcohol consumption and at the time of the accident was on a number of prescription medications for his preexisting conditions. I find, however, that the Second Injury Fund has no liability in this case by nature of the late Answer in the case which admitted the factual allegations that the injury was sustained in the course and scope of employment while climbing seven flights of stairs, exerting unusual and extraordinary physical exertion, which was the prevailing factor in the employee suffering a stroke and resulting in severe injury and permanent disability to the body as a whole and cerebrovascular system. While the nature of the late Answer admits alleged facts as set forth in the claim, the nature and extent of disability is still to be determined. The consensus of the credible medical evidence appears to conclude that the severe stroke which the claimant suffered in April of 2012 and the subsequent history of seizures which have followed have rendered the claimant permanently and totally disabled. There is no apportionment or strong evidence to suggest that the claimant's preexisting conditions of ill were a combining factor in the resultant disability. I find for that reason that the Second Injury Fund has no liability in this matter and the claimant's permanent and total disability is the responsibility of the Employer and Insurer.

As it relates to past medical expenses, an employee must prove "that the need for treatment and medication flow(s) from the work injury" when seeking past medical expenses. Tillotson v. St. Joseph Med. Ctr., 347 S.W.3d 511, 519 (Mo.App.W.D.2011). Dr. Koprivica opined that the extensive medical treatment employee has received, including treatment for complications associated with the development of a seizure disorder, was medically reasonable and a direct necessity in an attempt to cure and relieve the effects of the permanent injuries sustaining as a result of the April 19, 2012 work injury. This opinion is undisputed and the only evidence found in the record relative to this issue. Additionally, Dr. Farrar testified that employee's 2014 stroke was the consequence of the treatment regimen provided to cure and relieve the effects of the April 19, 2012 stroke. As such, insurer is liable for payment of the

Issued by Division of Worker's Compensation

Employee: Steven Wright

Injury No. 12-091385

medical expenses for the medical treatment provided that was related to treatment for the April 19, 2012 stroke, the resultant seizure disorder and the subsequent 2014 stroke. Thus, insurer shall provide payment to employee for expenses relative to necessary medical treatment not provided in the amount of $831,515.86.

Lastly, I find employee requires ongoing medical treatment for his injuries. Under section 287.140.1, an employer must provide such care "as may reasonably be required after the injury or disability, to cure and relieve from the effects of the injury." RSMo. §287.140.1. "This includes allowance for the cost of future medical treatment." *Pennevelli v. Hannibal Reg'l Hosp.*, 390 S.W.3d 919, 926 (Mo.App.E.D.2013). "An award of future medical treatment is appropriate if an employee shows a reasonable probability that he or she is in need of additional medical treatment for the work-related injury." *Id.* "An employer will be responsible for future medical benefits only if the evidence establishes to a reasonable degree of medical certainty that the need for future medical care flows from the accident." *Sickmiller v. Timberland Forest Products, Inc.*, 407 S.W.3d 109, 122 (Mo.App.S.D.2013). Again, the medical findings and conclusions of Dr. Koprivica are undisputed as to this issue. Dr. Koprivica testified that employee will require indefinite ongoing treatment that flows from the stroke, including treatment relative to the seizure disorder. Again, Dr. Farrar testified that employee's 2014 stroke was the consequence of the treatment regimen provided to cure and relieve the effects of the April 19, 2012 stroke. Therefore, insurer is liable to provide employee with any and all medical treatment necessary to cure and relieve the effects of the April 19, 2012 stroke injury, including (but not limited to) treatment for the resultant seizure disorder and the subsequent 2014 stroke.

I certify that my 1-26-18 delivered a copy of the foregoing award to the parties to the case. A complete record of the method of delivery and date of service upon each party is retained with the executed award in the Division's case file.

By: __________________________

Mark Siedlik

Administrative Law Judge

Division of Workers' Compensation

By: __________________________

Mark Siedlik