Opinion
No. WD 66700.
Opinion Filed: January 9, 2007.
BEFORE JAMES M. SMART, JR., P.J., EDWIN H. SMITH, AND LISA WHITE HARDWICK, JJ .
Labor and Industrial Relations Commission
Ronald Kliethermes appeals the judgment of the Missouri Labor and Industrial Relations Commission denying him workers' compensation benefits after finding that there was no causal connection between his ill health and an electrical shock he suffered on the job. He contends that the Commission's finding was against the weight of the evidence. We affirm.
Factual and Procedural Background
Appellant Ronald Kliethermes began working for Respondent ABB Power TD in Jefferson City in April 1972. He worked there continuously until mid-November 2000, when he found it very difficult to perform his duties when he returned to work after having received an electrical shock on the job. Mr. Kliethermes filed a claim seeking workers' compensation benefits for the injuries he suffered as a result of the electrical shock. After a hearing in March 2005, the administrative law judge (ALJ) concluded that his claim was not compensable under the workers' compensation act. The Commission affirmed. The claimant appeals.
Mr. Kliethermes, who was fifty-seven years old when he received the electrical shock, had been treated for heart ailments since he was about forty years old. His problems included intermittent atrial fibrillation, mild hypertension, and mitral valve prolapse. Those conditions were being controlled with medication under the care of a cardiologist. Despite these problems and various other injuries, Mr. Kliethermes said, he had never experienced any limitations on working prior to November 2000. He also testified that he led an active life outside of work, participating in recreational activities and exercises, including "power walking," water-skiing, and others. On October 5, 2000, one month before the electrical shock, he reported to his family physician a complaint of being very tired and having difficulty sleeping, but did not report being too fatigued to work.
On November 9, 2000, while testing transformers as part of his job, Mr. Kliethermes grabbed two electrical leads to disconnect them. This caused an electrical shock to his body. The record shows only that the voltage would have been somewhere in the broad range between 5,000 and 70,000 volts. The record does not indicate whether the current was alternating current or direct current. Mr. Kliethermes was thrown against a barrier fence and fell to one knee. He was not knocked unconscious. He was treated by emergency personnel, who measured his blood pressure at 235/172 immediately following the shock. He was transported to the hospital by ambulance, where he was evaluated and held overnight. There was no indication of atrial fibrillation. There was no evidence of a burn, or entrance or exit wounds from the electrical charge. His heart enzymes were not elevated, suggesting that he had not sustained damage to his heart. He was released the next day.
Mr. Kliethermes was not scheduled to work again until four days later, which was Monday, November 13. He went to work that day but felt fatigued and short of breath. He was unable to perform his usual duties. With the assistance of his co-workers, he made it through that day and the next by working lighter duty. On Wednesday, November 15, he still felt bad. He requested a visit with the company doctor, Dr. Glen Cooper.
Mr. Kliethermes went to see Dr. Cooper on November 16, one week after the shock. He complained of atrial fibrillation, fatigue, and an overall feeling of ill-health. Dr. Cooper advised him to remain off work and to report back for a follow up. He had a follow-up appointment with Dr. Cooper on November 27, at which time he again complained of fibrillation. Dr. Cooper referred Mr. Kliethermes to Dr. Daniel Pierce, a heart rhythm specialist and electrophysiologist.
Sometime in late November, Mr. Kliethermes also saw Dr. Harold Kanagawa, the cardiologist who had been treating his heart problems prior to the accident. At that time he was experiencing fibrillation. Dr. Kanagawa attempted several medications to get his atrial fibrillation under control, but none was effective in doing so.
On December 18, 2000, Mr. Kliethermes was admitted to the hospital with uncontrolled atrial fibrillation and elevated blood pressure. Within three days he regained his rhythm, apparently due to new medication, and was released. In January 2001, Dr. Pierce discovered a blockage in Mr. Kliethermes' carotid artery, which was unrelated to the electrical shock he received at work. He underwent surgery for this blockage on January 29, 2001.
In February 2001, he was admitted to the hospital because of severe labile (fluctuating) hypertension. Dr. Pierce performed a heart catheterization on him. In April 2001, Dr. Pierce implanted a pacemaker in Mr. Kliethermes and continued to adjust his medication in an attempt to control the fibrillation. Neither the medications nor the pacemaker were completely effective, although there was improvement. In October 2001, Dr. Pierce performed an ablation on Mr. Kliethermes's heart in an effort to control the fibrillation. As a result of this procedure, Mr. Kliethermes became fully dependent on the pacemaker.
In April 2002, Mr. Kliethermes went to the hospital after feeling disoriented and dizzy, and was hospitalized. He was diagnosed as having a "transient ischemic event," a condition that causes symptoms similar to a stroke.
Mr. Kliethermes is no longer working. He is physically able to perform only work that is relatively sedentary. He was never cleared by any of his doctors to return to his former job at ABB. He cannot work around electrical equipment due to his pacemaker. Also, his other physical limitations would interfere with the physically demanding requirements of the job.
Mr. Kliethermes testified that he still has episodes of atrial fibrillation and still suffers from fatigue, weakness, and sensitivity to heat and cold. He has stopped "power walking" and is no longer able to perform many of the recreational physical activities he engaged in prior to the accident. He was still seeing Dr. Pierce as of the date of the hearing. Despite the pacemaker, the ablation, and various medications, his atrial fibrillation, though improved, has never been fully controlled.
ABB presented the testimony of a vocational rehabilitation consultant who testified that the claimant was capable of working in a relatively sedentary pursuit. ABB also introduced the deposition testimony of Dr. Stephen Schuman, a board-certified cardiologist. Dr. Schuman testified based on his examination of Mr. Kliethermes in April 2004 and his review of Mr. Kliethermes's medical records.
The ALJ entered an award denying compensation upon finding that Mr. Kliethermes failed to meet his burden of proving a causal connection between the November 9, 2000, electric shock and the increase in the frequency and severity of his heart problems. After noting that the type of heart problems Mr. Kliethermes has had since the accident are not new or different from what he had before the accident, the ALJ stated:
The frequency and severity of [his] heart problems have changed since November 9, 2000. The question, therefore, is whether this change was caused by the electrical shock or whether this change is mere coincidence.
The ALJ pointed out that diagnostic testing revealed no physical changes to Mr. Kliethermes's heart. The ALJ also noted Dr. Schuman's opinion that the electrical shock was not a substantial factor in causing a change in the frequency and severity of the heart problems. The primary basis for the decision was that the medical testimony "does not establish a cause and effect relationship between the complained-of condition and the asserted cause, . . . but rather assumes one based on the temporal proximity."
Mr. Kliethermes appealed the decision to the Labor and Industrial Relations Commission. The Commission affirmed, adopting the opinion of Administrative Law Judge Robert Dierkes. One Commissioner authored a separate concurring opinion. One Commissioner authored a dissenting opinion.
Standard of Review
Our review of the Commission's decision is governed by article V, section 18 of the Missouri Constitution and section 287.495 RSMo 2000. Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, 222 (Mo. banc 2003). The Missouri Constitution provides for judicial review of the Commission's award to determine whether it is "supported by competent and substantial evidence upon the whole record." MO. CONST. art. V, — 18. Section 287.495.1 requires that the decision be affirmed unless we find that the Commission acted in excess of its powers, the award was procured by fraud, the facts do not support the award, or there is insufficient evidence in the record to warrant the making of the award.
All statutory references are to the Revised Statutes of Missouri 2000, unless otherwise noted.
After finding the provisions of section 287.495 to be in harmony with the constitutional standard, the Hampton Court instructed:
A court must examine the whole record to determine if it contains sufficient competent and substantial evidence to support the award, i.e., whether the award is contrary to the overwhelming weight of the evidence. Whether the award is supported by competent and substantial evidence is judged by examining the evidence in the context of the whole record. An award that is contrary to the overwhelming weight of the evidence is, in context, not supported by competent and substantial evidence.
121 S.W.3d at 222-23 (citation and footnote omitted). The Court made clear that judicial review is to be conducted objectively, without viewing the evidence and all reasonable inferences drawn therefrom in the light most favorable to the award. Id. at 223. The examination of the record is a one-step process of determining whether "considering the whole record, there is sufficient competent and substantial evidence to support the award." Id. Thus, we look to the whole record in reviewing the Board's decision, not merely the evidence that supports its decision. Id.
We defer to the Commission's decisions regarding the weight given to witnesses' testimony and are bound by the Commission's factual determinations. Higgins v. Quaker Oats Co., 183 S.W.3d 264, 270-71 (Mo.App. 2005). "[I]n the absence of fraud, the findings of fact made by the commission within its powers shall be conclusive and binding" on appeal. — 287.495.1.
Arguments
In his first point on appeal, Mr. Kliethermes argues that the Commission's award denying him compensation is against the overwhelming weight of the evidence. He contends that substantial evidence established a causal relationship between his current state of ill health and disability and the injury he suffered when he was electrocuted at work in November 2000. The Commission erred, he argues, in concluding that his current disability is the result of a natural progression of his pre-existing condition. Although his heart condition affected him intermittently prior to the accident, it was not severe and was being controlled with medication. He states that the evidence shows that the electrical shock he suffered at work transformed him from a physically active man who had worked twenty-eight years for the same employer to a man who cannot now work at his old job and is no longer able to engage in his usual physical activities.
Mr. Kliethermes raises other issues on appeal, including the extent of his disability, whether there is second injury fund liability, and whether he is entitled to a fifteen percent penalty for ABB's violation of a state statute. Because we are constrained to affirm the Commission's judgment that there was no causal connection, we do not reach these other points.
Workers' Compensation Law
Under the Missouri's workers' compensation law in effect at the time of the incident giving rise to the claim, "[a]n injury is compensable if it is clearly work related," and "[a]n injury is clearly work related if work was a substantial factor in the cause of the resulting medical condition or disability." — 287.020.2. The employee has the burden of proving a causal connection between the accident and the claimed injuries. Davies v. Carter Carburetor, 429 S.W.2d 738, 749 (Mo. 1968). The claimant must show that his injury arose out of and in the course of his employment, pursuant to section 287.020.3(1). Smith v. Donco Constr., 182 S.W.3d 693, 699 (Mo.App. 2006). "To meet the test of . . . `arising out of' the employment, the injury must be a natural and reasonable incident of the employment, and there must be a causal connection between the nature of the duties or conditions under which the employee is required to perform and the resulting injury." Id.
In 2005 there was a significant change to the statute. This cause of action arose prior to the change and therefore, we review it based upon the previous statute enacted in 2000.
The claimant must show that work was a "substantial factor" in causing the injury or disability. — 287.020.2. An injury is not compensable merely "because work was a triggering or precipitating factor." Id. However, satisfying the substantial factor element does not require proof that the employment was the sole or primary cause of the alleged compensable injury. Cahall v. Cahall, 963 S.W.2d 368, 372 (Mo.App. 1998). "[A] work related accident can be both a triggering event and a substantial factor." Id. (emphasis added).
A preexisting but non-disabling condition does not bar recovery of compensation if a job-related injury causes the pre-existing condition to "escalate to the level of disability." Higgins, 183 S.W.3d at 271. Ordinary, gradual deterioration or progressive degeneration of the body caused by aging is not compensable, however, except where it follows as an incident of employment. — 287.020.3(1).
The Commission's denial of compensation was based on the absence of proof of a causal link between the complained-of condition and the asserted cause (the electrical shock). The Commission noted that Mr. Kliethermes had the burden of proving a causal connection and was required to present medical or scientific evidence to establish such a connection. See Davis v. General Elec. Co., 991 S.W.2d 699, 706 (Mo.App. 1999) ("In cases involving medical causation, which is not within the common knowledge or experience, [the claimant] must present medical or scientific evidence showing the cause and effect relationship between the complained-of condition and the asserted cause.") To establish this causal connection, Mr. Kliethermes had to prove that the November 2000 accident was a substantial factor in causing the increase in frequency and severity of his atrial fibrillation. Since the cause of atrial fibrillation is not within the common knowledge or experience of the average person, he was required to present scientific or medical evidence to establish the cause and effect relationship. See id. Additionally, proof of causation when dealing with an allegation that a pre-existing condition has been aggravated by a subsequent injury is not within the realm of lay understanding; thus, expert testimony also is required to establish medical causation in such a case. Minies v. Meadowbrook Manor, 105 S.W.3d 529, 537 (Mo.App. 2003). The Commission opined that "the only medical evidence in the case on this crucial issue" is found in Dr. Kanagawa's deposition, and his testimony did not establish a cause and effect relationship through scientific or medical evidence.
Questions of medical causation of an injury are issues of fact for the Commission, which is the judge of witness credibility and the weight of the testimony. Sartor v. Medicap Pharm., 181 S.W.3d 627, 630 (Mo.App. 2006). Even if there is evidence that would support a contrary finding, we will not substitute our opinion of the facts for that of the Commission. Id. The following medical evidence was presented pertaining to the issue of causation.
Medical Evidence
There is no medical evidence documenting a physical, structural change in the pathology of the claimant's heart as a result of the electrical shock. There is medical evidence indicating that after the shock the doctors have had much greater difficulty controlling the atrial fibrillation. Mr. Kliethermes testified that after being released from the hospital following the electrical shock, he stayed at home and felt bad all weekend. He still did not feel good when he returned to work on Monday and Tuesday. On Wednesday, when it got no better, he asked to see a company doctor. ABB sent him to Dr. Cooper.
When Dr. Cooper examined Mr. Kliethermes seven days after the shock, he found "an irregular irregularity to his heart rate which is about 76 beats per minute." Dr. Cooper also noted a "[p]ossible exacerbation of cardiac arrhythmia secondary to occupational electrical injury." In a January 2001 report, Dr. Cooper stated: "It appears from the history that the patient was stable on his cardiac medications prior to the electrical injury. It appears that after the electrical injury he has been unstable with irregular heart and hypertension." In February, he reported: "[T]he electrical injury at work . . . apparently has caused cardiovascular complications."
Dr. Cooper referred Mr. Kliethermes to Dr. Daniel Pierce, a cardiologist and electro-physiologist. Dr. Pierce's reports and records were introduced at trial. Dr. Pierce began treating Mr. Kliethermes shortly after the incident. In a letter to Dr. Cooper on January 23, 2001, Dr. Pierce stated that the "time of the [recent] worsening of Mr. Kliethermes'] arrhythmia does correlate with his electric shock, however, this [the connection between the arrhythmia and the electric shock] cannot be proven. This may be more than a coincidence." In an April 6, 2001, letter to Mr. Kliethermes's attorney, Dr. Pierce, for some reason, moved away from the connection being a mere possibility to a more definitive statement:
The patient has continued to suffer greatly increased palpitations and recurrent atrial fibrillation since his electrical shock and with a reasonable degree of medical certainty, I would conclude the increase in atrial fibrillation is related to his shock. The patient's blood pressure may also be related to his shock due to increased anxiousness and worsening arrhythmia condition." (Emphasis added.)
But a year later, in February 2002, Dr. Pierce sent another letter to Mr. Kliethermes's attorney, which seemed to equivocate on the issue of causation:
The patient's injury correlated with the onset of his uncontrolled atrial fibrillation, however, a cause and effect will be difficult to prove to a reasonable degree of medical certainty. (Emphasis added.)
The strength of Dr. Pierce's opinions thus seemed to fluctuate, depending on how he felt about the matter that particular day. It would be fair, probably, to say that he thought there was a likelihood of a causal relationship, but he could not articulate any objective indicia supporting that notion.
Mr. Kliethermes introduced the deposition testimony of Dr. Harold Kanagawa, who was his treating cardiologist. Dr. Kanagawa believed the electrical shock was a substantial cause of Mr. Kliethermes's cardiac problem as it affects his employment limitations. Dr. Kanagawa acknowledged that Mr. Kliethermes's pre-existing heart condition included cardiac arrhythmia and mitral valve prolapse. The claimant was taking Lanoxin and Cartizem before the accident. The doctor testified that Mr. Kliethermes's atrial fibrillation before the electrical shock was "very mild" and that the "last episode he had [prior to the electrical shock] was in 1999 [the year before the electrical shock]." Dr. Kanagawa testified that Mr. Kliethermes's current condition is "a cardiomyopathy, which is some slight weakness of the heart muscle, and irregularity of the heart induced by his cardiomyopathy and possibly an injury he had to it with an electrical shock." When asked if Mr. Kliethermes's heart condition had changed since the electrical shock, Dr. Kanagawa stated:
[The claimant] used to have some slight irregularities when he had his pulmonary embolus in the 1980's, but they are very minor and [he was] never hospitalized for it and [it] never really kept him from his employment or anything else, but since his electrical shock, his heart has been very, very irregular, even to the point that it could not be treated with medication and he subsequently had ablation of the heart tissues, which is burning of the tracks in his heart, and a pacemaker. (Emphasis added.)
In describing Mr. Kliethermes's atrial fibrillation after the electrical shock, Dr. Kanagawa stated: "It has been unable to be controlled. Even with experimental drugs, a pacemaker, plus medications, plus ablation of the heart, it has been uncontrollable." Dr. Kanagawa stated:
In layman's terms it is like a re-cycling of the heart. The heart has an electrical system like a car or a telephone or anything else. And what happens when you get an electrical shock, it actually fries some of the circuits and can actually recycle the pathways." (Emphasis added.)
He further testified:
Q. Has there been any physical change in his heart?
A. I don't know.
Q. Is it possible that Mr. Kliethermes' pre-existing condition could have deteriorated naturally?
A. It is possible.
Q. Is it possible that he would have needed a pacemaker without any intervening act?
A. Possible but unlikely.
Q. You've talked in both of your reports . . . that his pre-existing conditions have been aggravated. Is it possible and maybe even probable that the shock was a triggering factor that made his condition worse and nothing more than that?
A. Highly suspect it.
This dialogue tends to show the ambiguity of using the word "triggering" without explaining how it is used. The statute uses the word, but it can be unclear whether the same term when used by a physician means the same thing.
This dialogue tends to show the ambiguity of using the word "triggering" without explaining how it is used. The statute uses the word, but it can be unclear whether the same term when used by a physician means the same thing.
Dr. Kanagawa also commented:
[W]hat you notice physically and what you notice functionally [are] two different things. I mean, you can have a normal brain on a CAT scan or MRI but that doesn't mean it functions normally. And the heart is the same way. . . . . [The heart] may look fine but how it functions and how the circuitry functions [are] two different things. So I think it is more of a function thing with Ron than a physical thing that you're getting at. . . . . [H]is heart doesn't function the same since the electrical shock.
Dr. Kanagawa stated in his July 2003 deposition that Mr. Kliethermes's condition is permanent and that he "still has on-going problems with [the fibrillation] even to this day and so his prognosis is very poor if it hasn't been controlled in three years."
Dr. Stephen Schuman, a board-certified cardiologist presented by the employer, testified that he believed the electrical shock was not a substantial factor in causing a change in the frequency and severity of the heart problems. Based on his brief examination of Mr. Kliethermes and his review of the medical records and reports, Dr. Schuman diagnosed Mr. Kliethermes with paroxysmal fibrillation/atrial flutter due to an underlying electrical or conduction system disease of the heart, hypertensive cardiovascular disease, mitral valve prolapse, coronary arteriosclerosis, and carotid artery disease. Dr. Schuman indicated that these diagnoses all pre-existed the accident of November 9, 2000. Dr. Schuman testified that the pre-existing diagnoses were the cause of Mr. Kliethermes's fatigue, fibrillations, and the other symptoms. Dr. Schuman found no evidence of a change in pathology and testified that the diagnoses remained the same after the accident as they were before. He believed the shock did not cause an increase in symptoms or a new injury to the heart.
In order to make a causal connection, he stated, there would have to be evidence of a recurrence of atrial fibrillation documented within a relatively short period of time after the shock, preferably even at the time of admission to the hospital. Had the shock caused an injury, Dr. Schuman said, it would have put Mr. Kliethermes into atrial fibrillation immediately after the shock or would have been seen on lab evidence within twenty-four hours.
The medical records show that Mr. Kliethermes was observed overnight, and there were no signs of cardiac arrhythmia or fibrillation. There were no objective signs of injury. There were no burn marks and no entrance or exit wounds. An EKG at that time did not reveal any acute damage to the heart. Had there been damage from the shock, Dr. Schuman testified, the cardiac enzymes would have risen within eight to twelve hours. During the time Mr. Kliethermes spent at the hospital following his accident, there was no rise in cardiac enzymes or a change on EKG. According to Dr. Schuman, Mr. Kliethermes was recovered from the shock on November 10, 2000, the day he was released from the hospital.
It was Dr. Schuman's opinion that the "natural progression" of the underlying and pre-existing disease caused the increase in the symptoms. Dr. Schuman would have expected Mr. Kliethermes's condition to have deteriorated to the point that it did, regardless of the shock, due solely to the natural progression of the underlying condition. The doctor concluded that Mr. Kliethermes has a permanent partial disability and must be restricted as to work, but that this was not caused by the accident of November 9, 2000.
Dr. Schuman's testimony is contradictory to that of Dr. Kanagawa. One believed that the shock was a substantial factor in the disability due to a change in functioning without a demonstrable change in pathology. The other believed that the underlying heart problems were worse, but that this occurred simply as a natural progression. The Commission believed that Dr. Schuman's testimony was more persuasive than Dr. Kanagawa's testimony. Dr. Schuman said Mr. Kliethermes's pre-existing condition is degenerative and progressive in nature and would be expected to naturally deteriorate as he aged. This progressive deterioration, he said, led to the increase in the frequency and intensity of his atrial fibrillation symptoms. Dr. Schuman's opinion was based, inter alia, on the fact that following the shock the claimant's cardiac enzymes were not elevated, and on the fact that the claimant suffered no immediate problems with atrial fibrillation following the shock, particularly during his hospitalization for the first twenty-four hours. While Dr. Kanagawa had no objective, measurable criteria on which to base his opinion, he believed that some circuits may have been "fried" and redirected. He presented no evidence that the concept of "circuit frying" is a concept accepted within the medical scientific community. His opinion was admissible and could be considered, but perhaps it would have more weight if Dr. Kanagawa's opinion was shown to be in keeping with recognized views in medical science.
The Commission ruling shows that the Commission was influenced by the long, documented history of atrial fibrillation, showing that Mr. Kliethermes had been treated for recurrent, intermittent atrial fibrillation as far back as 1983. His history also included a 1995 cardiac catheterization after being hospitalized for recurrent bouts of rapid tachycardia and chest discomfort. His history before the shock, in addition to atrial fibrillation, included diagnoses of chest discomfort, mitral valve prolapse, hypertension, and hyperlipidemia.
The Commission rejected Dr. Kanagawa's opinion as to causation. The Commission was skeptical of Dr. Kanagawa's hypothesis that the electrical shock "fried" some circuits in the electrical system of the heart. The Commission felt that Dr. Kanagawa's opinion of a connection was based solely on the fact that there was a proximity in time:
Therefore, what Dr. Kanagawa's testimony really means is that he suspects that the electrical shock "fried" the circuits in Claimant's heart not based on any scientific reasoning or analysis, nor based upon any diagnostic testing (particularly since the diagnostic testing would lead to an opposite "suspicion" or conclusion), but based solely on a temporal proximity between the shock and the escalation of symptoms. This is really no more and no different than a layman's "suspicion." It is not based upon medical or scientific analysis. While I, too, strongly suspect that the shock caused Claimant's increased symptoms, based upon temporal proximity, Dr. Kanagawa's concurring suspicion adds nothing to the case. His opinion does not establish a "cause and effect relationship between the complained-of condition and the asserted cause" as required by Davis v. General Electric, but rather assumes one, based on the temporal proximity.
Two letters were introduced from Dr. Kanagawa that, it could be argued, seemed to support the Commission's view of Dr. Kanagawa's opinion. In the first letter, dated March 2, 2001, Dr. Kanagawa stated, "I do not know of any permanent injury that Mr. Kliethermes suffered with his electrical shock. He was hospitalized . . . at that time for observation for 24 to 48 hours, and he did not appear to have any cardiovascular damage or muscle damage at that time, and his rhythm was normal." He continued:
Obviously, the electrical shock could flare up his underlying conditions, but he should probably be back to his baseline in the future. Once his blood pressure and cardiac arrhythmia are stabilized, he should not have any additional permanent disability.
In a second letter, dated May 15, 2003, Dr. Kanagawa stated,
Mr. Kliethermes did sustain an electrical shock to his body and his heart on the date noted above. To my knowledge, it did not cause any permanent physical damage to his heart since a cardiac catheterization on February 9, 2001 again showed a very strong heart with normal left ventricle ejection fraction of 60%.
The fact that Mr. Kliethermes was able to work virtually every day before the accident despite his history of atrial fibrillation and high blood pressure and was not able to work again following the shock raises a logical inference of a causal connection. As Dr. Pierce said, it may "be more than a coincidence." Apparently the Commission believed that it also may not be "more than a coincidence." Mr. Kliethermes points to his medical condition after the shock as evidence of a causal connection. He notes that his blood pressure was extremely high when he reached the hospital, at 235/172. He also points to a report from his hospitalization, which notes "an abnormal EKG," but he does not elaborate on this and did not question the doctors about it at trial. We are not sure whether the EKG after the shock was abnormal in a way that was a change from the abnormal EKG before the shock.
Mr. Kliethermes contends that the Commission was wrong to rely upon Dr. Schuman's opinion. He notes that Dr. Schuman examined him only briefly for about an hour and a half on one occasion in April 2004 and could not state, at the time he gave his deposition, when — or even if — Mr. Kliethermes had any documented episodes of atrial fibrillation in 2000 or 1999. Mr. Kliethermes also points out that Dr. Schuman based his opinion of no causal connection in large part on the inaccurate premise that Mr. Kliethermes showed no documented episodes of atrial fibrillation after the shock until his hospitalization on December 18, 2000. The Commission recognized this, noting that Dr. Schuman failed to mention that when the claimant went to see Dr. Cooper on November 16, one week after the shock, he told the doctor he was experiencing atrial fibrillation. Thus, the Commission did not purport to rely on Dr. Schuman's erroneous factual observation in denying the award.
A careful reading of the Commission opinion and the concurring opinion shows that the Commission relied partially on Dr. Schuman's opinion, and based the denial of the award largely upon Mr. Kliethermes's failure to satisfactorily establish a scientifically cognizable causal connection through Dr. Kanagawa's testimony. Commissioner William F. Ringer also wrote a separate opinion concurring in the opinion of the ALJ. Mr. Ringer relied on the opinion of Dr. Schuman as the most credible opinion, and expressed the conviction that the employee did not sustain any damage to his heart from the electrical shock. Commissioner John J. Hickey dissented, relying on Dr. Kanagawa's opinion, which Mr. Hickey found credible
The main question is how much weight to give to the inference that arises from the temporal proximity of the accident to the alleged injury. Physicians and non-physicians recognize that not every physical phenomenon is objectively detectable scientifically. Dr. Pierce and Dr. Kanagawa were inclined to believe, apparently based on temporal proximity, that there was a causal connection, but they had no objective means of demonstrating the accuracy of their belief. If the Commission had believed that there was a causal connection, we would have no difficulty affirming. But we do not think we can say that the Commission is bound to believe such an opinion of a physician, especially when the opinion is not objectively supported, and when there is another physician who does not believe there is a causal relationship, and who states that it is significant that there was no atrial fibrillation detected within the first twenty-four hours, and no indication of elevated enzymes (indicating heart damage) within the first eight to twelve hours. While there is no doubt the claimant sustained a shock, it is not necessarily shown that the increased difficulty in controlling the atrial fibrillation was attributable to the shock.
It comes down to whether the Commission was justified in rejecting the claim merely because no physician, including Dr. Kanagawa, could determine the effect of the shock with reasonable medical certainty based on objective indicators. It is true that Dr. Kanagawa's view that some electrical circuits were "fried" appeared to be simply an unverifiable hypothesis. Dr. Schuman is correct that the increased difficulty with atrial fibrillation did not show up within the first 24 hours as would apparently be expected if the shock had caused the increased difficulty with fibrillation. Even though there was a temporal proximity between the shock and the fibrillation, it was not the immediate temporal proximity which Dr. Schuman said would be expected if there were a causal connection.
Where the opinions of medical experts conflict, the fact-finding body, the Commission, determines whose opinion is the most credible and may reject all or part of an expert's testimony. Sartor, 181 S.W.3d at 630. The Commission's decision will generally be upheld if it is consistent with either of two conflicting medical opinions. Smith, 182 S.W.3d at 701. Questions of medical causation of an injury are issues of fact for the Commission, which is the sole judge of the credibility and weight of the testimony. Sartor, 181 S.W.3d at 630. The Commission also has the right to determine how much weight to give to rational inferences.
The Commission saw Dr. Kanagawa's opinion as nothing more than an idea derived strictly from the fact that the claimant had much more difficulty controlling the atrial fibrillation within a relatively short time after the shock than he did before the shock. The Commission did not give weight to Dr. Pierce's opinion, which was favorable to the claimant, but was weakened by his ultimate concession that he could not demonstrate a connection with reasonable medical certainty. While we are to review the evidence objectively, we are not able, except in the case of the most blatantly absurd inferences drawn from the facts, to substitute our opinion for that of the Commission. We can do so only if, after viewing all of the evidence objectively, we can say that the decision is not supported by substantial evidence and is against the overwhelming weight of the evidence. See Hampton, 121 S.W.3d at 222.
After reviewing the entire record, we conclude that we cannot say that the Commission's determination, based in part on conflicting medical expert testimony, is not supported by sufficient competent and substantial evidence and is against the overwhelming weight of the evidence.
Conclusion
For the foregoing reasons, the judgment is affirmed.
Smith and Hardwick, JJ., concur.