Byous v. Missouri Local Government Employees Retirement System Board of Trustees

JAMES M. SMART, JR., Judge,

concurring in part and dissenting in part.

I concur in the result. I differ with the analysis as to the nature of the presumption created by the relatively simple statutory phrase: “unless the contrary be shown by competent evidence.” In order to explain why I differ in part with the thoroughly researched majority opinion, it is necessary to explain also why I concur in the result the majority reaches. To a large extent, both have to do with the difficulty faced by medical science in being asked to identify causes of heart disease in a particular person.

In multifactorial diseases such as coronary artery disease, discussion of causation can be handled only through discussion of the existence and extent of “risk factors.” Risk factors are characteristics of individuals who are more likely to develop a particular disease than the remainder of the population. Risk factors are indicators of increased relative probabilities.

Risk factors can include at least somatic factors (such as hyperlipidemia and hypertension), behavioral factors (such as cigarette smoking, alcoholism, poor nutrition, and so forth), genetic factors, and stress factors (such as environmental and occupational factors). Some risk factors, of course, can be more significant than others.

Because the statute says that the heart disease is presumed to have been suffered *755 in the line of duty unless “the contrary be shown by competent evidence,” any discussion of the etiology of coronary artery disease must deal with the characteristics and conditions we call risk factors. An expert may in a few cases be able to compare and quantify the effect of certain risk factors with reasonable certainty, but in many other cases it will be virtually impossible to do so.

As the majority correctly points out, LAGERS had the burden of coming forward with evidence here. LAGERS presented the deposition testimony of Dr. Lammoglia and the medical records of Dr. Farrar, another treating cardiologist. Dr. Farrar stated in a letter his view that Mr. Byous’ coronary artery disease resulted “from his risk factors for developing coronary artery disease, not from working as a fireman.” Dr. Farrar went on to say that Mr. Byous’ coronary artery disease resulted from “cigarette smoking, hypertension, hyperlipidemia and genetic influences indicated by a family history of premature coronary artery disease.” Dr. Farrar’s only comment as to the effect of Mr. Byous’ employment acknowledged that the myocardial infarction was precipitated while fighting a fire; but Dr. Farrar went on to point out that “hard work alone, in the absence of coronary artery disease, will not cause a heart attack, and does not cause coronary artery disease.” There is no indication that Dr. Farrar gave the matter of occupational risk factors any further consideration.

Dr. Lammoglia, who testified by deposition, stated he had “no objective way of finding out” whether the firefighting career contributed to the coronary artery disease. Again, there was no meaningful discussion of occupational stress. Neither physician discussed the nature and effect of Mr. Byous’ duties as a firefighter over the many years. Also, neither physician discussed the causes underlying the development of the risk factors of hypertension and hyperlipidemia.

Two of the factors the doctors did identify (cigarette smoking and genetic factors) were not causally related to occupational stress. But the failure to discuss the causal components of the hypertension and of the hyperlipidemia — and to consider them in the light of potential occupational stress, left a substantial gap in LAGERS’ effort to show by competent evidence (as opposed to speculation) that the heart attack was not suffered in the line of duty.

There was no evidence that the hypertension (high blood pressure) and the hy-perlipidemia (high levels of blood choles-terols and triglycerides) were not somehow substantially related to the stress associated with being a firefighter over many years. Neither physician addressed the nature of Byous’ duties over the years, or the effect of emergency operations or of the shift work that is common among firefighters. The doctors seemed to know enough about Mr. Byous’ duties to conclude that Mr. Byous is currently disabled from performing such duties. But there is no indication the physicians made any effort to consider whether, for the purposes of cardiovascular health, the position of firefighter differs from being, say, a mail-room clerk.

The most glaring defect of the testimony of the physicians is that, after identifying hypertension as a risk factor, the physicians failed to recognize that hypertension itself is presumed to be work related under the terms of the statute. Hypertension is listed in Section 87.006 as presumed to have been incurred in the line of duty unless “the contrary be shown by competent evidence.” Because there was no evidence that the hypertension was not work-related, the hypertension itself must therefore be considered to have arisen in the *756 line of duty. Thus, the failure of the physicians to present evidence that the hypertension was not work-related was a serious defect in LAGERS’ case.

Although they seemed not to know it, the physicians here were being specifically asked to address the risk factor of occupational stress. It is not a matter of hard physical labor. Thus, it is an inadequate response to say, as Dr. Farrar did, “hard work alone, in the absence of heart disease, never caused a heart attack ...” Although that statement is no doubt true as far as it goes, it misses the point. First, it begs the question, where did the heart disease come from? Dr. Farrar acted in part like he thought the issue was whether Mr. Byous particular activities at the time of the attack were the cause of the attack. Did he forget or did he not know that 87.006 talks about heart disease and not heart attacks ? The issue was about Mr. Byous career as a firefighter and the effect of the occupational factors on his heart disease. Second, Dr. Farrar’s comment that hard work does not cause heart disease was beside the point because he ignores the obvious: that there is more involved in fire fighting than hard physical labor. Otherwise, there is little reason for the legislature to create the presumption for police and firefighters and not for maintenance workers. 1

Because there is no meaningful discussion of the occupational risk factors of the claimants’ career as a firefighter and because there is no competent evidence addressing the underlying causes or the risk factors contributing to the hypertension and the hyperlipidemia, I agree that the line-of-duty presumption was not rebutted by competent evidence. Thus, I agree the ruling must be reversed.

I wish to dissent from the analysis of the majority to the extent that it reaches issues unnecessary to the resolution of this case, and to the extent that it rejects the usual rule of Missouri law and purports to adopt a “Morgan rule” with regard to the presumption.

The majority, after correctly holding that the line-of-duty presumption was not rebutted, attempts to address the question of what happens when the presumption is rebutted. In an effort to provide guidance, the majority reaches the conclusion, after a survey of various states, that the presumption here is a Morgan presumption. The majority does this by speculating about the intent of the Missouri statute without simply taking the language of the statute at face value. The majority then goes even further in concluding that the presumption cannot be overcome without showing a specific non-work cause of the heart disease.

All of that portion of the majority opinion relating to the effect of the rebuttal of the presumption is pure obiter dictum. This was a case in which the presumption was not rebutted. All we need decide here is that the presumption was not rebutted. Because it was not rebutted, Byous wins. End of case.

In deciding as it does on the nature of the presumption, the majority unfortunately errs. In deciding that the statute creates a Morgan presumption, the majority rejects Sprague, the one published Missouri ease, dismissing it as though it has *757 no precedential value because the opinion in Sprague invoked Rule 84.16(b). Cases may be decided under Rule 84.16(b) without a formal opinion when the case is an affirmance and the judges believe that the case has no precedential value. Id. It is, of course, inconsistent for a court to publish an opinion while invoking a court rule suggesting that the ruling is not worthy of publication. It is easier to believe that the reference to Rule 84.16(b) was an oversight than it is to believe that publication of the opinion was an oversight. Therefore, it is not at all clear that the Sprague case should be regarded as without prece-dential effect and that New Hampshire law should be preferred over Missouri law.

Because heart disease, hypertension, and hyperlipidemia are multifactorial diseases, the majority errs in interpreting the statutory presumption as requiring for rebuttal that LAGERS prove the specific cause of the coronary artery disease. The meaning of the phrase “unless the contrary be shown by competent evidence” can be readily understood without resorting to court decisions of other states having different firefighter disability statutes.

The first thing the phrase means here is that if no one presents competent evidence as to work causation, the claimant automatically wins his claim. The statute relieves the claimant of the burden of producing evidence. In a case without any evidence, the claimant must win, because the burden of producing competent evidence was shifted by statute to LAGERS. This is a huge benefit to the claimant in view of the multifactorial nature of heart disease, because otherwise the claimant faces the great burden of proving the heart disease was suffered in the line of duty. But while the benefit of the statute is potentially great, nothing in the statute suggests that the statute was intended to have virtually conclusive effect, as I believe the majority’s strained interpretation of the statute would do in practical effect.

If the cardiologist in a heart disease case were familiar with the claimant as a patient, and with the nature of the claimant’s work and the claimant’s work history in the fire department, and with the claimant’s off-duty habits and lifestyle and family medical history, that cardiologist may have a basis to express, with reasonable medical certainty, an opinion as to the development of the pertinent risk factors and the relation thereto of the claimant’s particular occupational stress. For instance, to give a rather extreme example, a physician might say something to the effect of:

“Well, the claimant was an instructor of pyrotechnics at the fire academy for most of his career. By his account and that of others, he loved his work. The environment of the job was congenial. It was a forty-hour week. No shift work. No danger. No emergencies. I can say with reasonable medical certainty that occupational stress was not a factor. I cannot say what did cause the heart attack, but the significant risk factors that can be identified include ... [e.g., genetics, stress at home due to a child’s chronic medical problems, poor diet, cigarette smoking ...].”

If I understand the majority correctly, this testimony would not be sufficient, in their view, to rebut the presumption. Under a proper understanding of the statute, however, such evidence would constitute a showing by competent evidence that the heart attack was not work-related.

If the physicians testifying in this case had made remarks showing an articulable, reasonable basis to conclude that the claimant’s work was not a factor in the development of the significant risk factors (something way beyond the notion that “hard work does not cause a heart at *758 tack”), I would be arguing that the Board’s decision in favor of LAGERS should be affirmed. To the extent that such testimony ruling out occupational factors is believed, the Board can, even in a case involving less extreme facts than our hypothetical, regard the line-of-duty presumption as having been rebutted. The Board in such a case is not bound to rule in the claimant’s favor when it believes the evidence to the contrary.

This statute says the line-of-duty-presumption exists “unless the contrary be shown by competent evidence.” It does not say, “unless there is competent medical evidence identifying a specific non-work cause of the disease.” It is enough to defeat a claim if a physician acquainted with the pertinent risk factors as to a particular claimant’s disease can provide, with reasonable medical certainty, an artic-ulable and reasonable basis (which the physicians in this case did not do) to conclude that the risk factors were not incurred or aggravated by duty. That is, it is enough to defeat the claim if the testimony is believed by the LAGERS Board of Trustees — even if the physician cannot state with particularity any specific non-work cause of the risk factors.

ULRICH, BRECKENRIDGE and SPINDEN, JJ., concur in separate opinion of SMART, J.

. It could also be noted that the legislature provided in Section 287.120 of the Workers Compensation Act that "[t]he ability of a firefighter to receive benefits for psychological stress under 287.067 shall not be diminished by [the requirement that the work-related stress be shown to be 'extraordinary and unusual'].” Perhaps that is because the legislature believed stress is such a regular matter for firefighters that it would be difficult to show that stress was of an ''extraordinary and unusual” degree for those in that occupation.