Byous v. Mo. Local Government Bd. Trustees

• Decision Date: 08 March 2005
• Docket Number: No. WD 63537.,WD 63537.
• Citation: 157 S.W.3d 740
• Parties: Glen E. BYOUS, Appellant, v. The MISSOURI LOCAL GOVERNMENT EMPLOYEES RETIREMENT SYSTEM BOARD OF TRUSTEES, Respondent.
• Court: Missouri Court of Appeals

157 S.W.3d 740

Glen E. BYOUS, Appellant, v. The MISSOURI LOCAL GOVERNMENT EMPLOYEES RETIREMENT SYSTEM BOARD OF TRUSTEES, Respondent.

No. WD 63537.

Missouri Court of Appeals, Western District.

March 8, 2005.

Lawrence G. Rebman, Kansas City, MO, for appellant.

Tyson H. Ketchum, Kansas City, MO, for respondent.

Before: EDWIN H. SMITH, C.J., HAROLD L. LOWENSTEIN, ROBERT G. ULRICH, PATRICIA A. BRECKENRIDGE, PAUL M. SPINDEN, JAMES M. SMART, JOSEPH M. ELLIS, VICTOR C. HOWARD, THOMAS H. NEWTON, RONALD R. HOLLIGER and LISA WHITE HARDWICK, JJ.

THOMAS H. NEWTON, Presiding Judge.

Mr. Glen Byous became permanently and totally incapacitated from his job as a firefighter after he had a heart attack on September 26, 2000, and was diagnosed with coronary artery disease. As a member of the Missouri Local Government Employees Retirement System (LAGERS), he sought work-related disability benefits. Although he was entitled to the statutory presumption that his disability was work-related, the LAGERS Board of Trustees (Board) found that this presumption was rebutted by competent evidence.

The statutory presumption shifts both the burden of production and the burden of persuasion to the party claiming that the disability is not work-related. Evidence that a disability is not caused by work is insufficient to rebut the presumption; the evidence must show that the disability was more probably than not caused by a non-work-related cause and identify the cause. The evidence here did not do this. We reverse.

I. FACTUAL AND PROCEDURAL BACKGROUND

Mr. Byous worked for more than twenty-five years as a firefighter for the City of St. Joseph. During that time he was a member of LAGERS, which provides for the retirement of officers and employees of any political subdivision of the state.

On September 26, 2000, at age 54, Mr. Byous worked as a driver/engineer at a fire. He felt some discomfort afterwards, and that evening he went to the hospital where he was treated for a myocardial infarction (heart attack) and diagnosed with coronary artery disease. After that episode he was unable to return to work.

On September 5, 2001, Mr. Byous applied for work-related disability retirement benefits under section 70.680.3.¹ On October 12, 2001, the LAGERS Medical Committee reported to the Board, by majority opinion, that Mr. Byous was permanently and totally incapacitated from his job as a firefighter and eligible to be retired. But Mr. Byous' initial claim for work-related disability under section 70.680.3 was denied.

Mr. Byous appealed, and a formal administrative hearing was held. At the hearing, Mr. Byous asserted that he was entitled to the section 87.006 presumption that his heart condition resulted from firefighting. Further, he had a physical-fitness-for-duty examination on March 21, 1997, which did not reveal any evidence of heart problems.² LAGERS presented evidence that Mr. Byous was not entitled to the section 87.006 presumption and, even if he was, his heart condition was not work-related. For this latter proposition, LAGERS relied on two reports from Dr. Michael Farrar, a cardiologist who treated Mr. Byous, and the deposition testimony of Dr. Francisco Lammoglia, Mr. Byous' cardiologist, both of whom stated that the underlying coronary artery disease was not work-related but due to risk factors.

Dr. Farrar wrote two letters summarizing his findings after examining Mr. Byous. On April 16, 2001, he stated that his impression was that:

His [Mr. Byous'] myocardial infarction did occur while at work doing moderately strenuous physical activity. However, like most males that have myocardial infarction at work doing strenuous activity, he had multiple risk factors for coronary artery disease including cigarette smoking, hypertension, and hypercholesterolemia, as well as a family history of premature coronary artery disease. Therefore, while the heavy work did contribute to the precipitation of his acute myocardial infarction, the risk factors as listed above are the predominant cause of his myocardial infarction and not the work itself.

Dr. Farrar then supplemented his medical evaluation of Mr. Byous on May 16, 2001, stating that:

Mr. Byous has underlying coronary artery disease involving the right and left anterior descending coronary arteries which has resulted from his risk factors for developing coronary artery disease, not from working as a fireman. His coronary artery disease has resulted from cigarette smoking, hypertension, hyperlipidemia and genetic influences indicated by a family history of premature coronary artery disease. While his myocardial infarction was ultimately precipitated by fighting a fire, it should be pointed 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. Rather, the myocardial infarction is only precipitated by hard work in the presence of coronary artery disease with unstable plaque. The coronary artery disease is caused by the other factors noted above.

During cross-examination by LAGERS' attorney, when asked whether Mr. Byous' coronary artery disease, not the heart attack, developed as a result of his work in the fire department, Dr. Lammoglia answered, "No." He stated that Mr. Byous' coronary artery disease is based on certain risk factors: male, hypertension, hypercholesterolemia, and smoking. Dr. Lammoglia also said that he did not indicate that coronary artery disease is caused by risk factors, but that they are associated with the disease.

The Board adopted the hearing officer's Findings of Fact and Conclusions of Law. It found that Mr. Byous was totally and permanently incapacitated from his duties and that the section 87.006 presumption applied to him.³ It then found that LAGERS had rebutted the presumption with medical evidence showing that Mr. Byous' condition was not work-related. The Board found that there was no evidence in the record refuting the doctors' opinions that Mr. Byous' coronary artery disease is not work-related. It found that both doctors' medical opinions constituted substantial and competent evidence to rebut the presumption. Therefore, Mr. Byous was denied duty-disability payments under section 70.680.3.

Mr. Byous appealed this decision to the trial court, which affirmed the Board's decision.

Mr. Byous brings one point on appeal. He claims that the LAGERS Board committed reversible error when it found that the medical evidence from Drs. Farrar and Lammoglia constituted legally competent evidence to rebut the section 87.006 statutory presumption that his injury was work-related. He claims that under section 536.140, the finding is unsupported by competent and substantial evidence upon the whole record because it relied on evidence that merely rebuts the statute's underlying premise.

II. STANDARD OF REVIEW

When a party appeals a trial court's review of an administrative decision, we review the decision of the administrative agency, not the trial court. Nance v. State Tax Comm'n of Mo., 18 S.W.3d 611, 615 (Mo.App. W.D.2000). Our scope of review is limited by section 536.140.2 and in this case we are considering only whether the Board's decision was supported by competent and substantial evidence upon the whole record. § 536.140.2(3); Nance, 18 S.W.3d at 615. We do not substitute our judgment for that of the Board; we instead ascertain whether the Board could "reasonably have made its findings and reached its decision on the basis of all the evidence before it." Hay v. Schwartz, 982 S.W.2d 295, 300 (Mo.App. W.D.1998).

Both parties agree that in this case the facts are not in dispute and we are only reviewing the application of the law to the facts. As such, we may weigh the evidence ourselves. § 536.140.3. But in doing so we must give due weight to the opportunity of the agency to observe witnesses and to its expertise and experience. In re Thomas, 926 S.W.2d 163, 165 (Mo.App. E.D.1996).

III. LEGAL ANALYSIS

Mr. Byous sought duty-disability retirement under section 70.680.3. To receive disability retirement under this section, he must prove that he was totally and permanently physically incapacitated for duty as an employee, as the natural and proximate result of an injury or disease that the Board finds "to have arisen out of and in the course of his actual performance of duty as an employee." § 70.680.3. Mr. Byous proved that he is totally and permanently physically incapacitated for duty as a firefighter and that has been stipulated to by the parties. The element in dispute is whether he showed that his incapacity is the result of an on-the-job injury.

In general, the employee has the burden of establishing his entitlement to benefits: that his heart disease arose from work-related duties. Hay, 982 S.W.2d at 301. Mr. Byous, however, does not have this burden because the Board found that the section 87.006 presumption applies to him. When this presumption applies, a disease of the heart resulting in total or partial disability "shall be presumed to have been suffered in line of duty, unless the contrary be shown by competent evidence." § 87.006.1. Because his heart disease was presumed to be work-related, LAGERS had the burden of showing by competent evidence that it was not work-related.

The Board found that this presumption was rebutted. So under our standard of review, we must decide whether there is competent and substantial evidence to support the Board's finding that the section 87.006 presumption was rebutted by competent evidence. Competent evidence is relevant and admissible evidence that can establish the fact in issue. Knapp v. Mo. Local Gov't Employees Retirement Sys., 738 S.W.2d 903, 913 (Mo.App. W.D.1987). Substantial evidence is evidence that if true has probative force upon the issues, and it must be competent evidence. Id.

LAGERS claims that because it rebutted this presumption, Mr. Byous had to prove that his heart disease was work-related. Mr. Byous...