author: PAUL M. SPINDEN, Judge. JAMES M. SMART, Jr., Judge,

text:
    Chandrika C. COLLINS and Chad T. Collins, Appellants, v. MISSOURI BAR PLAN, as defendant ad litem for Barry Anderson, Strong and Strong, Sanford P. Krigel, Krigel and Krigel, P.C., Respondents, and Samuel C. Totaro, Jr., Eugene E. Kellis, Howard H. Soffer, Holly Kellis Soffer, Michael J. Belfonte, Tammy Thompson, and Janet Wake-Larison, Defendants.
    No. WD 63003.
    Missouri Court of Appeals, Western District.
    Jan. 11, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied March 1, 2005.
    Application for Transfer Denied April 5, 2005.

      Michael Taylor, St. Joseph, Robert Langdon, Lexington, for Appellant.
    James Morrow, James Ensz, Kansas City, for Respondent.
   PAUL M. SPINDEN, Judge.

After protracted litigation over adoption of the infant son of Chad T. and Chandrika C. Collins by a Pennsylvania couple, the Collinses sued a number of individuals involved in the adoption, including all of the attorneys. They charged the attorneys with malpractice, breach of fiduciary duty, and negligent misrepresentation. This appeal concerns only two of the attorneys, Barry Anderson, deceased, and his law firm, Strong and Strong, and Sanford P. Krigel and his law firm, Krigel and Krigel. The circuit court entered summary judgment for these attorneys. The circuit court erred in granting summary judgment, and we remancTfor further proceedings.

In. reviewing this case and in setting out the facts below, we view the evidence in a light most favorable to the Collinses. This is because, when we review an appeal of a summary judgment, we view the evidence in a light most favorable to the nonmoving party, and we afford that party the benefit of all reasonable inferences. ITT Commercial Finance Corporation v. Mid-America Marine Supply Corporation, 854 S.W.2d 371, 382 (Mo. banc 1993).

This lawsuit arose from the Collinses’ consent during 1995 to the adoption of their son by Joseph and Diane Standen, a married couple living in Pennsylvania. The Standens hired Samuel C. Totaro, Jr., a lawyer in Furlong, Pennsylvania, to help them with the adoption. Totaro hired Kri-gel, a lawyer in Kansas City, to represent the Collinses. Viewed in a light most favorable to the Collinses, evidence presented to the circuit court indicated that Krigel advised Chandrika Collins concerning the law and assured her that she could withdraw her consent to the adoption at any time before the adoption became final. Chandrika Collins believed that Krigel represented her as her attorney.

In early November 1995, Totaro also hired Anderson to represent the Collinses because the Collinses resided in St. Joseph. The Collinses believed that Krigel and Anderson both represented them. On November 21, the Collinses met with Anderson, and he advised the Collinses concerning the law. He told them that they could withdraw their consent to the adoption at any time before the adoption was final.

On December 10, 1995, the Collinses’ son was born. The Collinses met with Anderson the next day, and he explained adoption consent forms to them. At a hearing before the circuit court two days later, the Collinses, the Standens, and Anderson appeared, and the Collinses executed them consent to the adoption. The circuit court entered a temporary custody order transferring custody to the Stan-dens.

On December 15, 1995, the Collinses decided to withdraw consent to the adoption. When the Collinses told the Stan-dens of their decision, the Standens asked to see the infant one more time. The Collinses agreed, but when the Standens had physical custody of the child they locked themselves in their hotel room with the child and refused to return him to the Collinses. The Collinses telephoned Anderson, but he told them that he could not help them.

On December 19, 1995, the circuit court convened another hearing. The Collinses did not attend the hearing, and the circuit court ordered transfer of legal custody to the Standens, who returned to Pennsylvania with the child.

Later in December 1995, the Collinses hired Janet Wake-Larison, a lawyer in Grant City, to aid them in regaining custody of their son. Wake-Larison filed a motion seeking the circuit court’s leave for the Collinses to withdraw their consent to the adoption. The circuit court denied the motion because the motion did not allege grounds for which the circuit court could grant relief. This court affirmed the circuit court’s decision in In Interest of D.C.C., 935 S.W.2d 657 (Mo.App.1996) (D.C.C.I).

After this court issued its opinion, the Collinses filed another motion to withdraw their consent, alleging various grounds, including fraud, misrepresentation, and duress. The circuit court dismissed this motion without a hearing on the ground that the Collinses were estopped from denying that they had consented to the adoption because of their original representations to the circuit court. In In the Interest of D.C.C., 971 S.W.2d 843 (Mo.App.1998) (D.C.C.II), this court remanded the case for a hearing on the issues of fraud and misrepresentation. While the circuit court was considering the remand, the Collinses and the Standens settled their dispute by agreeing to joint custody.

After the settlement, the Collinses filed this lawsuit. They charged Anderson and his firm with malpractice, breach of fiduciary duty, and- negligent misrepresentation. They accused Rrigel and his firm of malpractice and breach of fiduciary duty. The lawyers moved for summary judgment, and the circuit court granted the motions. Although the circuit court’s order did not dispose of all of the Collinses’ claims, the circuit court ruled, pursuant to Rule 74.01(b), that no reason justified delay of this appeal.

Our review of the circuit court’s summary judgment is essentially de novo. ITT Commercial Finance Corporation, 854 S.W.2d at 376. To enter summary judgment, the circuit court must determine that the parties are not disputing any issue of material fact and that the party seeking summary judgment is entitled to judgment as a matter of law. Id. at 377; Rule 74.04(c)(6).

“The key to summary judgment is the undisputed right to judgment as a matter of law; not simply the absence of a fact question.” ITT Commercial Finance Corp., 854 S.W.2d at 380.

[A] “defending party” may establish a right to judgment by showing (1) facts that negate any one of the claimant’s elements facts, (2) that the non-movant, after an adequate period of discovery, has not been able to produce, and will not be able to produce, evidence sufficient to allow the trier of fact to find the existence of any one of the claimant’s elements, or (3) that there is no genuine dispute as to the existence of each of the facts necessary to support the movant’s properly-pleaded affirmative defense.

Id. at 381 (emphasis omitted). Because summary judgment is “an extreme and drastic remedy,” we exercise great caution in affirming it because the procedure cuts off the opposing party’s day in court. Id. at 377. We must “sustain the trial court’s award of summary judgment if the judgment can be sustained under any theory” supported by the summary judgment record. Rodgers v. Czamanske, 862 S.W.2d 453, 458 (Mo.App.1993) (citing Zafft v. Eli Lilly & Company, 676 S.W.2d 241, 243 (Mo. banc 1984)).

In its order granting summary judgment, the circuit court declared that it had “determine[d] as to [the lawyers] that the damage of which the [Collinses] complain[ed] was not directly and proximately caused by the action of the [lawyers] as alleged in the [Collinses’] pending petition.” The lawyers had argued to the circuit court that Wake-Larison’s negligence was an intervening cause that cut off their liability. The circuit court erred in resting summary judgment on either Wake-Larison’s alleged negligence being an intervening cause or on the Collinses’ not showing that the attorneys caused their injury.

To establish a claim for legal malpractice, a plaintiff must prove negligence and a causal connection between his or her attorney’s negligence and the resulting injury. Id. “To prove damages and causation, the plaintiff must prove that, but for the attorney’s negligence, the result of the underlying proceeding would have been different.” Id. A defendant’s conduct is the proximate cause of a plaintiffs injury when the injury is the natural and probable consequence of the conduct. Schaffer v. Bess, 822 S.W.2d 871, 876 (Mo.App.1991). Conduct by multiple defendants can be deemed to be the cause of a single injury, and each of the defendants can be liable if his negligence was an efficient cause of the plaintiffs injury “without which the injury would not have occurred.” Id. at 876-77.

An intervening cause breaks the chain of causation, and this doctrine can apply to an attorney malpractice case. See Rodgers, 862 S.W.2d at 458. “An intervening cause is a new and independent force which interrupts the chain of events initiated by the defendant’s negligence in such a significant manner as to become the direct and proximate cause of the plaintiffs damages.” Id. For a later cause to intervene sufficiently to cut off another defendant’s liability for prior negligence, the later cause must break the chain of events so that “the result is no longer the natural and probable consequence of the primary cause or one which ought to have been anticipated.” Love v. Deere & Company, 684 S.W.2d 70, 75 (Mo.App.1985). If the purported intervening cause occurs in combination or concurrent with earlier negligence, it is not an intervening cause. Buchholz v. Mosby-Year Book, Inc., 969 S.W.2d 860, 862 (Mo.App.1998); Buck v. Union Electric Company, 887 S.W.2d 430, 434 (Mo.App.1994).

Viewing the facts in a light most favorable to the Collinses, we conclude that Wake-Larison’s negligence was not an intervening cause. The lawyers involved in the case before her involvement had negligently advised the Collinses that they could revoke their consent at any time before the adoption was final. This advice played a significant role in convincing the Collinses to consent to the adoption and set in motion the ultimate outcome. Any injury caused by Wake-Larison was no different than what would have occurred had she never been involved in the case. As soon as the Collinses executed their consent based on Anderson’s and Krigel’s negligent advice, they stood to lose custody of their child. Losing custody was the natural and probable consequence of the lawyers’ negligently advising the Collinses that they could withdraw their consent at any time before the adoption was final. Although Wake-Larison intervened, her negligence did not interrupt the chain of events set in motion by the negligent advice of the lawyers before her. Wake-Larison’s intervening negligence did not create a new injury or unexpected result. It simply added another plank to a raft already afloat.

The lawyers assert that Wake-Larison’s failure to repair the damage caused by their negligent advice constituted an intervening cause. We disagree. An intervening attempt to fix a mistake caused by an earlier party is not necessarily an intervening cause, even when the attempted fix fails.

This court reached the same conclusion in Love, 684 S.W.2d at 75. In that case, a farmer sued a combine manufacturer after a safety shield broke and exposed the machine’s gears and pulleys. The farmer’s hand was cut off when he attempted to repair the guard. The manufacturer argued that the farmer’s attempted repair was an intervening cause that cut off its liability. The Love court disagreed: “The unsuccessful reattachment of the shield by [the farmer] did not interrupt the chain of events caused originally by the product defect and, thus, could not be an event of intervening proximate causation.” Id. at 75.

Similarly, the Collinses received negligent advice, and Wake-Larison attempted to fix the mistake by filing a motion to revoke the Collinses’ consents. Wake-Larison’s attempted fix failed, but, assuming that she acted negligently, her negligence did not interrupt the chain of events triggered by Krigel’s and Anderson’s alleged negligence.

This conclusion is bolstered by the foreseeability of the Collinses’ hiring another attorney to attempt to fix their previous attorneys’ mistakes. An intervening cause is not foreseeable. See, e.g., Shannon v. Wal-Mart Stores, Inc., 974 S.W.2d 588, 591 (Mo.App.1998); Oberkramer v. City of Ellisville, 650 S.W.2d 286, 298 (Mo.App.1983). A reasonable person would foresee that a person that he injured would seek a physician’s care. In the same way, that the Collinses would seek additional legal advice after receiving negligent advice from Krigel and Anderson was foreseeable.

That Wake-Larison’s negligence was an intervening cause cutting off Krigel’s and Anderson’s liability, therefore, was not a sound basis for the circuit court’s summary judgment. The question remains whether or not Krigel and Anderson caused the Collinses’ injury. If the Col-linses did not present facts from which a jury could have concluded that Krigel and Anderson caused the Collinses’ injury, the circuit court’s summaiy judgment was proper and should be affirmed.

Viewing the evidence in a light most favorable to the Collinses, we discern unresolved, genuine issues of material fact as to the causation issue. The Collinses countered the lawyers’ denials that they had misled the Collinses with bad legal advice by submitting affidavits that asserted that Krigel and Anderson had advised them that their consents could be withdrawn at any time before the adoption was final and that they relied on this advice. This created a fact issue to be determined by the fact finder and rendered summary judgment inappropriate.

The lawyers defend the circuit court’s summary judgment by asserting that the Collinses should be estopped under the doctrine of judicial estoppel from making the allegations that they aver in this action because they swore to the circuit court in a hearing on December 12, 1995, that they consented to the adoption. The Collinses testified in that hearing that they “fully understood the consequence of their decision and ... voluntarily agreed to the adoption.” D.C.C. I, 935 S.W.2d 657, 659 (Mo.App.1996). “[A] person who states facts under oath, during the course of a trial, is estopped to deny such facts in a second suit....” Bellinger v. Boatmen’s National Bank of St. Louis, 779 S.W.2d 647, 650 (Mo.App.1989).

This doctrine does not apply in this case. The Collinses’ averments do not contradict their testimony before the circuit court. At the hearing, the Collinses did consent to the adoption, but, according to their allegations, their consent was based on a mistaken belief that they could withdraw their consent later should they change their minds. Indeed, when Anderson asked the Collinses about their consent during the December 12 proceeding, he couched his questions in terms of the circuit court’s subsequent approval of the adoption.

The lawyers also raise a related doctrine, collateral estoppel. Under this doctrine, the courts prohibit a party from litigating an issue that he has previously litigated and lost. This doctrine also does not apply to this lawsuit. The issue of whether or not Krigel and Anderson negligently advised the Collinses that they should consent to the adoption because they could withdraw their consent later has never been litigated. In this case, the Collinses are claiming legal malpractice and breach of fiduciary duty. The issue of whether they consented voluntarily to the adoption is separate from whether or not they were misled or given negligent advice by their attorneys. Because the issue of attorney malfeasance has yet to be determined, issue preclusion does not apply, and the circuit court’s summary judgment cannot be defended on this ground.

Anderson asserts that collateral estoppel bars the Collinses from relitigating the issue of whether or not the Indian Child Welfare Act (ICWA) applies. The Collins-es aver that Anderson negligently misrepresented to Chandrika Collins that she should remove all indication of her Native American heritage from her profile. We need not address the issue because the Collinses’ claim for negligent misrepresentation against Anderson does not depend on whether or not the ICWA applies; it stems from Anderson’s advice that Chan-drika not reveal that she was of Native American descent. Collateral estoppel does not apply.

Anderson further asserts that the circuit court’s summary judgment was proper concerning the Collinses’ claim against him for negligent misrepresentation because the Collinses would not be able to establish the requisite elements. In asserting their claim, the Collinses alleged that Anderson advised them that they could revoke their consent to the adoption at any time and that this advice was false. The Collinses averred that they relied on this advice in consenting to the adoption.

The elements of negligent misrepresentation are (1) the speaker supplied information in the course of his or her business because of some pecuniary interest, (2) that was false, (3) without exercising reasonable care or competence in obtaining or communicating this information, (4) for the guidance of a limited group of persons in a particular business transaction, (5) and the listener justifiably relied on the information, (6) and, as a result, suffered a pecuniary loss. M and H Enterprises v. Tri-State Delta Chemicals, Inc., 35 S.W.3d 899, 904 (Mo.App.2001). “A negligent misrepresentation claim is premised upon the theory that the speaker believed that the information supplied was correct, but was negligent in so believing.” Colgan v. Washington Realty Company, 879 S.W.2d 686, 689 (Mo.App.1994). If the fact finder deems the facts as averred by the Collinses to be true, they state a claim of negligent misrepresentation.

The lawyers next defend the circuit court’s summary judgment on the ground that the Collinses settled their dispute with the Standens rather than pursue their remedy at law. This court remanded D.C.C. II to circuit court to consider the Collinses’ claim against the Standens that their consent to the adoption should be set aside on the ground that it was obtained fraudulently. Rather than litigate the claim on remand, the Collinses entered into a settlement agreement with the Stan-dens. The lawyers argue that, by settling rather than litigating their fraud claim, the Collinses abandoned their right to challenge the validity of their consent. We disagree.

Settlements do not necessarily preclude damage claims. Williams v. Preman, 911 S.W.2d 288 (Mo.App.1995), overruled on other grounds by Klemme v. Best, 941 S.W.2d 493 (Mo. banc 1997). Public policy favors settlements, and malpractice victims should not be “completely precluded from ... settling ... underlying claim[s],” particularly when the plaintiff can show that settlement was justified. Id. at 298.

In this case, as was the case in Williams, the Collinses made “a bona fide attempt ... to mitigate their damages and bring the litigation to an end” by settling with the adoptive parents. Id. They had battled their claim for several years to regain custody of their son. Their expert, the Honorable Frank D. Connett, Jr., testified that, in his opinion, the Collinses would have been able to show fraud and misrepresentation without regaining custody of their child because of the difficulty of showing that removing the child from the Standens’ custody was in the child’s best interest. Because of that opinion, the Col-linses settled with the Standens by agreeing that the Collinses would enjoy joint legal custody and visitation rights. The Collinses were not obligated to risk losing all rights to the child by litigating their claim simply because their attorneys were negligent. They chose to mitigate their damages.

The lawyers rely on Williams v. Bryan, Cave, McPheeters, McRoberts, 774 S.W.2d 847 (Mo.App.1989), for the proposition that a party cannot sue his or her attorney for malpractice when the party has a complete and adequate remedy available. They contend that, because the Collinses could have won the lawsuit against the Standens, they had a complete and adequate remedy available. Williams, however, does not aid the lawyers. In Williams, the plaintiffs had filed a separate will contest, which was pending while the case was on appeal. Id. at 848 n. 1. Thus, the disposi-tive issue in the malpractice case — whether or not the attorney had erred in superseding one will with another — was not only pending below, but also would have required the court to “offend the probate code by requiring the trial court in the tort action to accept one document as testatrix’s valid will and to reject another document as not her will.” Id. at 848. The facts of Williams are a far cry from those in this case.

The lawyers next contend that summary judgment was proper because the Collinses’ settlement rendered their malpractice damages too conjectural and speculative, and damages must be proven to establish a claim of legal malpractice. Rodgers v. Czamanske, 862 S.W.2d 453, 458 (Mo.App.1993). “[D]amages need not be established with absolute certainty, but reasonable certainty is still required as to both existence and amount and the evidence must not leave the matter to speculation.” Aluminum Products Enterprises, Inc. v. Fuhrmann Tooling & Manufacturing Company, 758 S.W.2d 119, 121 (Mo.App.1988) (quotation omitted).

Although a settlement of an underlying lawsuit injects some speculation into a claim for attorney malpractice, it does not preclude a plaintiff from proving malpractice so long as the plaintiff can establish a causal link between the alleged negligence and any loss incurred. See Williams v. Preman, 911 S.W.2d 288, 298 (Mo.App.1995). The plaintiffs obligation is to “prove that the settlement was necessary to mitigate ... damages,” id., or “that plaintiff was driven to the necessity of settling because, if the case had not been settled, plaintiff would have been worse off.” Id. at 300.

Concerning a remedy in this case, we are mindful of the issues concerning the difficulty of crafting the proper remedy raised in the concurring opinion. We are confident, however, that the circuit court on remand will be able to sift through these issues, as difficult as that might be, to effectuate the proper remedy.

The Collinses, through Judge Connett’s testimony, established sufficient justification to have survived the attorneys’ motion for summary judgment. Judge Connett, who had 30 year’s experience with juvenile issues, “specifically predicted that [the Collinses] would have lost [had] the underlying claim ... not been settled.” Id. at 300.

Krigel and his firm assert that summary judgment was appropriate for the claims against them because the Col-linses did not present evidence establishing that Krigel acted as the Collinses’ attorney. An attorney-client relationship exists when a person seeks and receives legal advice and assistance from a lawyer who intends to give legal advice and assistance to the person. Donahue v. Shughart, Thomson & Kilroy, 900 S.W.2d 624, 626 (Mo. banc 1995). But “reliance alone upon the advice or conduct of a lawyer does not create an attorney-client relationship.” Id.

When the evidence is viewed in the light most favorable to the Collinses, ample evidence supports the Collinses’ contention that Krigel acted as their attorney and provided them with legal advice. Totaro, the Standens’ attorney, told the Collinses that Krigel was serving as their attorney at the Standens’ expense. Chan-drika Collins testified that she telephoned Krigel and, during their conversation, received legal advice from him. This was sufficient to put into issue whether or not an attorney-client relationship existed. Summary judgment, therefore, was improper on this ground.

For these reasons, the circuit court erred in granting summary judgment for the attorneys. We, therefore, reverse the circuit court’s judgment and remand for further proceedings.

EDWIN H. SMITH, Presiding Judge, concurs.

JAMES M. SMART, JR., Judge, concurs in separate opinion.

JAMES M. SMART, Jr., Judge,

concurring.

I concur in the analysis of the majority opinion as far as the particular issues addressed therein. I also concur because I believe the case must be remanded in view, of the fact that a portion of the damages alleged are potentially recoverable if the case is proven. I write separately, however, because of concerns related to the damage claims.

In Plaintiffs’ petition, they recite the following as far as the damages they seek:

157. As a direct and proximate result of Defendants’ negligence as set forth herein, Defendants caused Plaintiffs to lose the physical custody of their son, Chase.
158. In addition, as a direct and proximate result of Defendants’ negligence as set forth herein, Plaintiffs were caused to suffer and continue to suffer great emotional pain and suffering and mental anguish over the loss [of] the custody of their son, and have, since December 1995 to the present, been deprived of, and will in the future be deprived of, Chase’s sole and undivided love, affection, and companionship.
159. Further, as a direct and proximate result of Defendants’ negligence as set forth herein, Plaintiffs have been caused to expend substantial amounts of money in attempting to obtain the return of their son, including attorneys’ fees and costs.
160. Further, as a direct and proximate result of Defendants’ negligence, Plaintiffs will incur expenses for numerous other related expenses including, but not limited to, professional counseling.

Plaintiffs’ prayer for damages seeks, inter alia, recovery for the loss, since December 1995, of the child’s “sole and undivided love, affection and companionship.”

This is, as far as I have been able to discern, a case of first impression in Missouri as to whether law and policy will permit the recovery of monetary damages for negligent interference with relationship rights as to a living child. This is not a case of abduction or other deliberate interference with relationship rights. Also, it is not a wrongful death case in which the legislature has specified that a jury may evaluate the loss of companionship and services of a child who is now deceased. To the extent plaintiffs seek damages for interference with the “sole and undivided love, affection and companionship” of the living nine-year-old child, the case will tend to place that child’s interests squarely in the crucible of litigation over monetary compensation for the child’s affections. If I understand pertinent law and policy considerations correctly, there is substantial doubt about whether plaintiffs should be permitted to seek recovery for these injuries.

It is difficult to find any cases in which a jury has been allowed to adjudicate the value of the loss, through negligence, of a parent’s physical custody and relationship rights with regard to a living child. But see Person v. Behnke, 242 Ill.App.3d 933, 183 Ill.Dec. 702, 611 N.E.2d 1350 (1993) (dismissal of legal malpractice action reversed where court held that a claim exists for non-economic damages resulting from a plaintiffs loss of custody and visitation of his children in a divorce proceeding; holding limited to the most egregious cases of legal malpractice).

This is not a case about the kind of deliberate interference with custody rights that might justify criminal as well as civil penalties. This case is more complicated for the child in question in that it asks the fact finder to place an economic value on parental rights to the exclusive care of the child and the loss of exclusive society with that child (who is legally shared with another set of custodians).

Is it not true, under the plaintiffs’ theory of damages, that the more alienated from plaintiffs that the child is at the time of trial, the more money they should receive in compensation? Does that fact not put in front of the plaintiffs an unhealthy temptation to make sure they maintain a substantial distance in their relationship to the child? "What pressures are placed on the child by that and other factors?

At common law, a parent traditionally had no cause of action for non-economic damages, such as emotional distress and loss of society as to his or her child, due to legal negligence. A parent also had no common law action for alienation of the affections of a child, whether a minor or an adult. See 59 Am.JuR.2d Parent and Child § 92 (1987). See also Restatement (Second) of Torts, § 699. While parental rights are sacred rights, there always have been, and there always will be, sound reasons to avoid the intrusive judicial intervention in the life of the child and of the family that would be necessitated in such an action as this. Does not life itself have some adjustment mechanisms that can be utilized to allow nature to take its course when litigation does not distort attitudes and motives?

Is there a way for a jury to determine the value of the loss of parental rights and responsibilities in this scenario without making the child himself the primary focus of the proceeding? Is there a way that does not involve causing the child and the child’s affections to be evaluated like a chattel to be owned? A legal negligence action against a family law practitioner for negligence in handling a custody dispute in a marital dissolution presents a number of problems, including damages. See generally James L. Rigelhaupt, Jr., J.D., Annotation, Attorney’s Liability for Negligence in Cases Involving Domestic Relations, 78 A.L.R.3D 255, [*3] (1977); Behnke, 611 N.E.2d 1350; Ignotov v. Reiter, 425 Mich. 391, 390 N.W.2d 614 (1986). As already mentioned, there is also the pressure such a suit would place on the child by affecting the way the divorced parents relate to the child.

Section 453.110, RSMo 2000, which prohibits the permanent transfer of custody of a child without court order, has an “obvious purpose” of opposing the “concept that a parent could pass children on like chattel to a new owner.” In re Baby Girl —, 850 S.W.2d 64, 68 (Mo. banc 1993). Section 453.075 requires a full accounting of any amounts spent in relation to the adoption of a child. The statute provides that only certain types of expenses may be reimbursed by the adoptive parents; and, of course, no other money or other consideration may be paid by or on behalf of the adoptive parents. See § 453.075.2, RSMo 2000. Section 568.175 also creates the crime of “trafficking in children.” It prohibits giving, offering, receiving, or soliciting any money or other consideration for the delivery of a child for the purpose of adoption. See § 568.175, RSMo 2000. Missouri is thus very solicitous of the notion that children are not chattels to be bartered or sold.

Parental rights are not for sale. Had the Standens purchased a negotiated peace in the earlier litigation by agreeing to pay the plaintiffs money to settle and abandon their claim to set aside their termination consents, such agreement would be void and unenforceable. See § 453.075.2. Because of the same underlying concerns, there is risk involved in allowing compensation to be adjudicated for a professional’s negligent interference -with such rights. Perhaps such an assertion sounds harsh and unfeeling toward the biological parents. However, it seems obvious that any attempt to provide monetary compensation in such a case requires extensive and intrusive court intervention into family life and into the life of the nine-year-old child, including his feelings, his likes and dislikes, and the actions of both sets of parents. While the court may have appointed a guardian ad litem for the child’s benefit, it is extremely unlikely, in my view, that such a guardian ad litem can provide significant protection for the child in the midst of such powerful factors.

The courts have recognized the “sanctity of the parent-child relationship” in termination of rights cases. In re K.L.S., 119 S.W.3d 548, 551 (Mo.App.2003). The State’s power to terminate rights is an “awesome power.” Id. Assuming, as we do for purposes of our review, that here things happened as Plaintiffs say they did, the loss could be considered huge. At the same time, the case is not about the child being a piece of property to be owned. To make the child a chattel at this point in our search for accountability has too great a potential to distort the child’s relationships and damage his welfare.

      .In reviewing a grant of summary judgment, the court is to affirm on any ground consistent with law, whether the trial court relied upon that ground or other grounds. See Zafft v. Eli Lilly & Co., 676 S.W.2d 241, 243-44 (Mo. banc 1984). Therefore, if this issue related to damages were not an issue of first impression, or if the parties had addressed it in briefs, this court might choose to address the issue of partial summary judgment as to damages. Not having the benefit of such briefing or clear legal guidelines, however, this writer chooses merely to raise the concerns so that the parties may address the issues in the trial court if they wish to do so.

      . The court in Behnlce relied on the fact that the Illinois wrongful death statute allows recovery for the loss of society of a child. 611 N.E.2d at 1353-55. While the Behnke court acknowledged that damages for the parent’s mental distress would not be recoverable, it did allow non-economic damages, holding that the claim for loss of custody and visitation did not constitute a claim for mental distress. Id. at 1353.

      . It has been suggested that a parent should be entitled to tort compensation for emotional distress in the case of an abduction of the child, or in the case of a conspiracy to alienate the child’s affections, or in the case of defaming the parent by stating to the child that the parent was insane. See 59 Am.Jur2d Parent and Child § 92 (1987).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Robert DRAZICK, Appellant, v. Monica PLEDGER, Respondent.
    No. WD 62201.
    Missouri Court of Appeals, Western District.
    Jan. 18, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied March 1, 2005.
    Phillip A. Burdick, St. Joseph, MO, for Appellant.
    Randy M. Crawford, Lee’s Summit, MO, for Respondent.
    Before NEWTON, P.J., LOWENSTEIN and HOLLIGER, J.J.
   ORDER

PER CURIAM.

Plaintiff received a verdict of judgment in his suit for negligence against the respondent. He appeals asserting improper closing argument and the verdict amount was against the weight of the evidence. Affirmed. Rule 84.16(b).


text:
    STATE of Missouri ex rel. Jeremiah W. NIXON, Attorney General, State of Missouri, Respondent, v. Jeffrey HARRIS, Appellant.
    No. WD 64155.
    Missouri Court of Appeals, Western District.
    March 8, 2005.
    Appellant acting pro se.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Jefferson City, MO, for Respondent.
    John Preston Clubb, Asst. Attorney General, Jefferson City, MO, and Paul Harper, Asst. Attorney General, Jefferson City, MO, join on the briefs for Respondent.
    Before HAROLD L. LOWENSTEIN, P.J., PAUL M. SPINDEN, and JAMES M. SMART, JR., JJ.
   ORDER

PER CURIAM.

Jeffrey Harris, a Missouri prison inmate, appeals from the trial court’s decision ordering the Department of Corrections to pay a portion of his inmate account to the Inmate Incarceration Reimbursement Act Revolving Fund. Having carefully considered the contentions on appeal, we find no grounds for reversing the decision. Publication of a formal opinion would not serve jurisprudential purposes or add to understanding of existing law.

The judgment is affirmed. Rule 84.16(b).


author: THOMAS H. NEWTON, Presiding Judge. JAMES M. SMART, JR., Judge,

text:
    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. 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. 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 hypercho-lesterolemia, 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, hyper-cholesterolemia, and smoking. Dr. Lam-moglia 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. 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 claims that the presumption was never rebutted by competent evidence and, therefore, he did not lose the presumption and had no burden to prove that his disease was related to work. So the issue is whether LAGERS presented competent evidence to rebut the section 87.006 presumption, i.e., did LAGERS present relevant and admissible evidence that establishes that Mr. Byous’ heart disease was not suffered in the line of duty? We have determined that it did not.

Mr. Byous claims that Missouri case law has not addressed the question of what constitutes legally competent evidence to rebut the section 87.006 statutory presumption. LAGERS claims that Missouri has dealt with this question and answered it in Sprague v. City of Springfield, 641 S.W.2d 814 (Mo.App. S.D.1982). Sprague, however, was affirmed under Rule 84.16(b)(4) RSMo. (1982). Like the current Rule 84.16(b), such a decision has no precedential value. As such, we cannot and do not look to Sprague for direction in deciding this case. Mr. Byous is, therefore, correct that we have no Missouri law dealing with the question in this case and that this is an issue of first impression.

A. Application of the Section 87.006 Statutory Presumption

In this case we are dealing with the interaction of the burden of proof and presumptions. The burden of proof has two parts: the burden of production and the burden of persuasion. Black's Law Dictionary 209 (8th ed.2004). The burden of production requires the party to introduce enough evidence on an issue to have that issue decided by a fact-finder. Id. The burden of persuasion requires the party to convince the fact-finder to favor that party. Id. A presumption alters who has these various burdens, shifting them from one party to another. Id. at 1223.

Because we are construing a statute, we use the rules of statutory construction. We must ascertain the legislature’s intent from the language used and, if possible, give effect to that intent. State ex rel. Nixon v. QuikTrip Corp., 133 S.W.3d 33, 37 (Mo. banc 2004). We must consider the object the legislature is seeking to accomplish and aim to resolve the problems addressed by the legislature. Id. We give the words and phrases used them plain and ordinary meaning. Id. The applicable statute states that

Notwithstanding the provisions of any law to the contrary, and only for the purpose of computing retirement benefits provided by an established retirement plan, after five years’ service, any condition of impairment of health caused by any disease of the lungs or respiratory tract, hypotension, hypertension, or disease of the heart resulting in total or partial disability or death to a uniformed member of a paid fire department, who successfully passed a physical examination within five years prior to the time a claim is made for such disability or death, which examination failed to reveal any evidence of such condition, shall be presumed to have been suffered in line of duty, unless the contrary be shown by competent evidence.

§ 87.006.

We unfortunately do not have the benefit of knowing what prompted the Missouri legislature to establish this presumption. But by adopting this presumption it is clear that the legislature has decided that there is a causal relationship between work as a firefighter and heart disease. The legislature clearly intended to aid firefighters in their claims for disability benefits under section 70.680.3 by creating this presumption in their favor.

As LAGERS correctly points out, under the general rule in Missouri, when a party against whom a presumption operates introduces evidence controverting a presumed fact, that fact must then be determined from the evidence in the case as if there never was a presumption. Mercantile Bank & Trust Co. v. Vilkins, 712 S.W.2d 1, 3 (Mo.App. W.D.1986). The underlying facts giving rise to the presumption are still, of course, in evidence and may be considered. Michler v. Krey Packing Co., 363 Mo. 707, 253 S.W.2d 136, 140 (1952). Based on this rule of presumptions, LAGERS asserts that the section 87.006 presumption only shifted the burden of production to it, and the burden of persuasion remained on Mr. Byous. But presumptions may also shift the burden of persuasion, and, when the presumption is not merely a procedural rule, Missouri courts have found that the presumption has also shifted this burden. See e.g., Clear v. Mo. Coordinating Bd. for Higher Educ., 23 S.W.3d 896, 900 (Mo.App. E.D.2000) (when a party offers proof of proper mailing, there is a presumption that the letter has been received; “[e]vidence of non-receipt does not nullify the presumption but leaves the question for the determination of the finder of fact under all the facts and circumstances of the case”); Loehr v. Starke, 332 Mo. 131, 56 S.W.2d 772, 776 (1932) (presumption of undue in-fluenee in procuring a will is not a mere legal fiction or procedural rule and once the presumption exists it “never does or can disappear but raises an issue for the jury”)- So we must decide what burdens this presumption shifts.

Besides Sprague, there are no other Missouri cases discussing section 87.006, so we will consider the law from other states. We have read the cases relied on by both parties: Mr. Byous’ cases requiring a higher quantum of proof and LAGERS’ cases holding that the amount of proof offered here is sufficient. We do not agree with the attempted distinctions between these cases drawn by both parties because we believe that the eases are not factually different, they merely represent different views on how to address these types of presumptions and whether sufficient evidence has been presented to rebut them. We are persuaded that the cases relied on by Mr. Byous are a better way to approach the presumption in this statute.

In deciding how to apply this presumption, we are particularly persuaded by the New Hampshire Supreme Court’s discussion of presumptions in Cunningham v. City of Manchester Fire Dep’t, 129 N.H. 232, 525 A.2d 714 (1987). The court discusses two types of presumption theories: Thayer and Morgan. Under the Thayer theory, the presumption shifts only the burden of production, and, once evidence is produced sufficient to support a finding contrary to the presumed fact, the presumption disappears. Id. at 717. This is the theory of presumptions to which LAGERS directed us, and this generally controls in Missouri. The Morgan theory applies when there are strong social policy reasons underlying the presumption, such that the presumption continues to exist even when evidence has been introduced that tends to rebut the existence of the presumed fact. Id. When such a presumption exists, the opponent of the presumption must demonstrate the non-existence of the presumed fact by at least a preponderance of the evidence. Id. This is the theory applied in Missouri to undue influence cases.

New Hampshire suggests that when deciding which theory should govern a particular presumption, the court must consider whether the statute reflects a significant policy objective. Id. at 717-18. The relevant New Hampshire statute stated that “there shall exist a prima fa-cie presumption that heart or lung disease in a firefighter is occupationally related.” N.H.Rev.Stat. § 281:2, V-a (2008). The Supreme Court decided that the apparent purpose of the statute “is to implement a social policy of providing compensation to firefighters in those circumstances where the medical evidence fails to establish the etiology of the plaintiffs heart disease. In order to give full effect to the legislative intent, the presumption must be endowed with a force consistent with the legislative concerns underlying the presumption.” 525 A.2d at 718. The Court decided that the Thayer theory would lessen the strength of the statute and held that the Morgan theory must apply to the presumption. Id. The Court held that the defendant bears the burden of persuasion and “can rebut the presumption only by producing evidence that one or more non-occupationally-related factors were more probably the cause of the plaintiffs heart disease than his firefighter occupation.” Id. The Court also stated that to rebut this presumption, the defendant must show that risk factors of heart disease existed and were non-work-related. Id. at 718, 721 (hypertension is a risk factor for heart disease, but the defendant must show that the hypertensive condition itself is non-work-related).

We also find the law established in North Dakota persuasive. Under the comparable North Dakota statute, any respiratory or heart disease suffered by a firefighter or law enforcement officer “resulting in total or partial disability or death is presumed to have been suffered in the line of duty. The condition or impairment of health may not be attributed to any disease existing before that total or partial disability or death unless the contrary is shown by competent evidence.” N.D. CENT. CODE § 65-01-15.1; Robertson v. N.D. Workers Comp. Bureau, 616 N.W.2d 844, 853 (N.D.2000). This presumption shifts the burden of production and the burden of persuasion from the claimant to the party asserting that the claimant is not entitled to benefits. Robertson, 616 N.W.2d at 858. This presumption requires the defendant to prove that “the nonexistence of the presumed fact is more probable than its existence.” Id. So the defendant must prove that the heart disease was not suffered in the line of duty. Id. The Court then stated that when the disease has multiple factors, employment does not need to be the sole cause of the disease, “it is sufficient if the work condition is a significant contributing factor to the disease.” Id. The Court also held that reliance on any risk factors that manifested after the plaintiff began working in law enforcement was misplaced. Id. at 855.

In a different case, the North Dakota Supreme Court said that the purpose of the presumption is “to relieve firefighters of the nearly impossible burden of proving firefighting actually caused their disease.” Wanstrom v. N.D. Workers Comp. Bureau, 621 N.W.2d 864, 867 (N.D.2001). Further, work does not have to be the sole cause and “just because personal habits make a worker more prone to certain injuries,” a claim cannot be denied when the evidence indicates with reasonable medical certainty that work is causally related to the injury. Id. (internal quotation marks and citation omitted). The Court went on to say that, although this presumption puts a high burden on defendants, it is not impossible, and there have been cases where the defendants have proven that work was not a substantial contributing factor to the disease. Id. at 868-69. See e.g., Burrows v. N.D. Workers’ Comp. Bureau, 510 N.W.2d 617, 617-19 (N.D.1994) (plaintiff filed for death benefits after her husband, a police officer who smoked, died from lung cancer, relying on the statutory presumption that such disease was occupational; the presumption was rebutted by evidence from two doctors that decedent was statistically 50 times more likely to develop lung cancer than a non-smoker and that the probability that his lung cancer was due to his smoking, and not work, was quite strong).

In Virginia, heart disease causing the death or disability of firefighters or police officers “shall be presumed to be occupational diseases, suffered in the line of duty, that are covered by this title unless such presumption is overcome by a preponderance of competent evidence to the contrary.” Va.Code Ann. § 65.2-402(B) (2004). “[T]he purpose of the statutory presumption is to establish by law, in the absence of evidence, a causal connection between certain occupations and death or disability resulting from specified diseases.” Bass v. City of Richmond Police Dep’t, 258 Va. 103, 515 S.E.2d 557, 561 (1999). For an employer to overcome this presumption, it must meet a two-part test showing by a preponderance of the evidence that (1) claimant’s disease was not caused by his employment, and (2) there was a non-work-related cause of the disease. Id. at 561-62.

LAGERS directs us to several states that employ the Thayer theory for a similar statutory presumption. We have read them and do not find them as persuasive as the cases discussed above. In Michigan, under the comparable statute, respiratory and heart diseases in firefighters “are deemed to arise out of and in the course of employment in the absence of evidence to the contrary.” MICH. COMP. LAWS ANN. § 418.405(2) (1999). Under older case law in Michigan, that presumption could not be rebutted unless the defendant produced evidence of a non-work-related cause. Schave v. Dep’t of State Police, 58 Mich.App. 178, 227 N.W.2d 278, 282 (1975). The Michigan Court of Appeals, however, overruled Schave in Price v. Bloomfield Township, 244 Mich.App. 410, 625 N.W.2d 790, 794 (2001) (overruled on procedural grounds in Price v. Bloomfield Township, 467 Mich. 918, 654 N.W.2d 97, 97 (2002)). As LAGERS correctly points out, the Michigan Court of Appeals applied the Thayer theory and held that the presumption could be overcome if the employer came forward with evidence “by which a factfinder might conclude that the physical injury did not result from the employment.” Id. at 795. But we do not find the Price decision persuasive for three reasons. First, when the Michigan Supreme Court considered Price on appeal, it specifically stated that it did not address the merits of the Court of Appeals overruling of Schave. Price, 654 N.W.2d at 97. If the Michigan Supreme Court thereby implicitly affirmed the Court of Appeals’ overruling of Schave, we believe that the Court of Appeals decision in Price is incorrect and that its interpretation of the statute under Schave was the correct decision. And finally, the statute has a lower standard because it does not require competent evidence.

Pennsylvania also appears to use the Thayer theory for its statute, which states that an occupational disease is presumed to arise “out of and in the course of his employment, but this presumption shall not be conclusive.” 77 Pa Cons.Stat. § 413 (2002). Pennsylvania has stated that the statutory presumption is a procedural or evidentiary advantage to a claimant. City of Wilkes-Barre v. Workmen’s Comp. Appeal Bd., 541 Pa. 435, 664 A.2d 90, 92 (1995). We choose not to follow this view of the presumption because Pennsylvania’s statute has a lower standard of proof and because of the compelling social policy in our statute.

Because we find the reasoning in the New Hampshire, North Dakota, and Virginia cases most compelling, we choose to follow them in applying the Morgan theory to our statutory presumption. We recognize that their statutes are not worded exactly like ours. They are still substantively similar, however, and New Hampshire’s statute even has a lower standard. There is a strong social policy underlying this statute to provide compensation for firefighters if they develop debilitating heart and respiratory diseases that may have been caused by their work. As such, we agree with the New Hampshire Supreme Court that this presumption should not just disappear based on evidence to the contrary. To respect the legislature’s decision to provide this presumption, it cannot be overcome by a small amount of evidence.

We hold, therefore, that the section 87.006 presumption shifts both the burdens of production and persuasion to the employer. The employer must show by a preponderance of the evidence that the nonexistence of the presumed fact is more probable than its existence, i.e. that non-work-related causes more probably caused the heart disease than work-related causes. Phrased another way, the employer must show both that the employee’s disease was not caused by his work and that there was a non-work-related cause of the disease. If the employer successfully meets this requirement and rebuts the presumption, then the employee no longer has the benefit of the section 87.006 presumption. Because the employee is seeking benefits under section 70.680.3, he is still free to present evidence showing that his disease is work-related; he simply no longer has the presumption to make this causal connection.

B. Assessment of the Evidence under the Section 87.006 Statutory Presumption

Now that we have an understanding of how this presumption operates, we consider whether LAGERS presented competent evidence to rebut this presumption.

LAGERS attempted to rebut the section 87.006 presumption by presenting evidence from two cardiologists to show that Mr. Byous’ heart disease was not work-related. Mr. Byous claims that this evidence was not sufficient to overcome the presumption because Dr. Farrar and Dr. Lammoglia were simply rebutting the underlying premise of section 87.006. He focuses on the fact that Dr. Farrar said that “hard work alone, in the absence of coronary artery disease, will not cause a heart attack, and does not cause coronary artery disease.” He claims that this merely rebuts the underlying premise of the statute, i.e., that such disease of the heart “shall be presumed to have been suffered in the line of duty.” § 87.006. Similarly, Mr. Byous claims that Dr. Lammoglia only denies the underlying presumption because he merely states that the coronary artery disease was not work-related and could not state the cause of the disease. Further, Dr. Lam-moglia only stated that Mr. Byous had risk factors that could or could not lead to coronary artery disease. Mr. Byous claims that since Dr. Lammoglia did not know what caused the coronary artery disease but did know that Mr. Byous’ work did not cause it, he was denying any causal relationship between coronary artery disease and the work of a firefighter.

Mr. Byous further claims that aside from attacking the underlying premise, the doctors did not present competent evidence that his work did not contribute to his heart disease. Dr. Farrar stated that fighting a fire ultimately precipitated the myocardial infarction and Dr. Lammoglia could not state what exactly caused Mr. Byous’ coronary artery disease, or when it developed. Dr. Lammoglia also admitted that he had no objective way of determining whether Mr. Byous’ firefighting activities contributed to his medical condition.

We agree with Mr. Byous that both doctors really only rebutted the underlying premise of the statute. While they mentioned the several risk factors that Mr. Byous had, they did not show that those risk factors were not work-related. And they really did not establish that it was more probable than not that work was not a contributing cause because they stated that work was not a cause of heart disease. The law from other states discussed above also considered whether evidence merely rebutting the underlying premise of the statute is sufficient to rebut the presumption. They all agree that such evidence is not sufficient. See Cunningham, 525 A.2d at 720 (medical expert testimony was insufficient to rebut the presumption because the expert only attacked the rationale of the statute, he did not produce evidence of non-work-related causes); Robertson, 616 N.W.2d at 855 (“We agree the effect of the presumption would be defeated if it could be rebutted by expert medical opinion generally denying the validity of the legislatively enacted premise that work stress causes heart problems. We conclude expert medical opinion that denies the underlying premise of a causal relationship between a law enforcement officer’s work stress, including the claimant’s predisposition to risk factors, and heart disease is insufficient to rebut the presumption the heart disease was suffered in the line of duty.”); Medlin v. County of Henrico Police, 34 Va.App. 396, 542 S.E.2d 33, 37 (2001) (testimony that only generally refutes the existence of a causal relationship between work-related stress and heart disease is not probative on the question of rebutting the statutory presumption). We find that the only difference between these cases and the ones that LAGERS cites is in how each court interpreted the expert testimony, whether it just rebutted the underlying premise or actually rebutted the presumption.

In New Hampshire, testimony from a doctor that there is no medical indication that the decedent’s employment contributed to initiate or hasten the development of his heart disease and that the disease has unknown causes was not sufficient to rebut the presumption because it merely attacks the underlying premise of the statute. Cunningham, 525 A.2d at 720. And while his statement that the decedent’s disease specifically was not caused by his employment as a fireman was on the threshold of being valid rebuttal evidence, “he still did not cite evidence of non-work-related risk factors that may have precipitated [decedent’s] heart disease.” Id. And when a former firefighter suffered from a heart attack during a tennis tournament some four years after retiring, he was entitled to benefits based on the statutory presumption that his heart problems were work-related. City of Manchester Fire Dep’t v. Gelinas, 139 N.H. 63, 649 A.2d 50, 53 (1994). The medical expert believed that the heart attack was triggered by the exertion of playing tennis superimposed on the plaintiffs underlying coronary artery disease. Id. at 52. He also testified that coronary artery disease is of unknown cause due to a multiplicity of factors and that firefighting was not a cause of his heart disease. Id. at 52, 53. This testimony just questioned the wisdom of the statutory presumption. Id. at 53. The slight evidence that plaintiff may have had some non-work-related risk factors was not sufficient to overcome the presumption that the heart disease was caused by his work. Id.

In North Dakota, testimony that a law enforcement officer’s heart disease did not result from work-related stress but from risk factors and that he would have developed these problems sooner or later regardless of his employment was not sufficient to rebut the presumption. Robertson, 616 N.W.2d at 853, 855. In Wan-strom, plaintiff was a firefighter who developed chronic obstructive pulmonary disease and the worker’s compensation bureau found that the presumption that this was caused by his work was rebutted. 621 N.W.2d at 866. Although one doctor testified that occupational smoke exposure was not a substantial contributing factor in the development of the lung disease, the other doctor could not rule it out as a factor. This evidence, therefore, did not support a finding that firefighting was eliminated as a substantial contributing factor. Id. at 868. The first doctor stated that plaintiffs work was not a substantial contributing factor because he did not have any severe exposure to smoke or toxic fumes that required medical care. Id. at 870. By saying that regular smoke exposure was not a substantial contributing factor, he was denying the statute’s underlying premise. Id. So his evidence was insufficient to rebut the presumption, and, as the other doctor did not rule out work as a factor, the presumption was not rebutted. Id.

The Virginia courts have held that showing the existence of risk factors alone is not sufficient to rebut the statutory presumption and does not establish a non-work-related cause of a disabling disease. City of Portsmouth Sheriff's Dep’t v. Clark, 30 Va.App. 545, 518 S.E.2d 342, 346 (1999). In Clark, although there was evidence of the risk factors of smoking and family history, there was no evidence of the actual effect of either factor on the plaintiffs cardiovascular health. Id. at 346-47. So while the evidence may have established the existence of the risk factors, it was not sufficient evidence that the factors actually caused the heart problems. Id. at 347. To rebut the presumption, the employer had to produce “affirmative evidence of a non-work-related cause.” Id. And when two doctors concluded that plaintiffs’ heart disease was not caused by work, but by risk factors, because, as a general matter, there is no link between stress and heart disease and there is no evidence that employment as a police officer is a factor in causing heart disease, their evidence was of no probative value. Medlin, 542 S.E.2d at 36-38. The court held that “[tjestimony which merely refutes the premise of such a legislatively enacted presumption does not constitute proper evidence in rebuttal.” Id. at 38. An employer may not repeal the statute by finding a doctor who believes that the statute is incorrect. Id. And in Bass, the court held that evidence of non-work-related causes of plaintiffs’ heart disease, standing alone, did not overcome the statutory presumption because that evidence did not meet both parts of the test; it did not show that the disease was not caused by their employment. 515 S.E.2d at 563.

LAGERS’ reliance on Oregon law is misplaced. Testimony that a firefighter’s employment was not a material contributing factor to his heart condition and that his work conditions were not associated with the cause of his heart disease was sufficient to overcome the statutory presumption. Ingram v. SAIF Corp., 72 Or. App. 215, 695 P.2d 930, 931 (1985). Both experts stated that they believed that plaintiffs risk factors were the primary cause and development of his coronary artery disease. Id. But the statute in effect at the time of this case had a much lower standard for rebuttal than the current Oregon statute or our own. The statute said that “[a]ny condition or impairment of health [caused by any disease of the lungs or heart] shall be presumed to result from a fireman’s employment.... Denial of claim for any condition or impairment of health [caused by such diseases] must be on the basis of medical or other evidence that the cause of the condition or impairment is unrelated to the fireman’s employment.” O.R.S. § 656.802 (1982); Ingram, 695 P.2d at 931. This is a lower standard than in our statute because it merely requires any medical evidence that the cause is unrelated to work, not competent evidence. Therefore, we do not find this case persuasive.

And although Tennessee’s statute is similar to ours, the court there has decided to use what we believe is a lower standard to rebut the presumption. Under the statute, any heart disease that impairs the health of a law enforcement officer “shall be presumed (unless the contrary is shown by competent medical evidence) to have occurred or to be due to accidental injury suffered in the course of employment.” Tenn.Code ANN. § 7-51-201 (2004). In Tennessee, “a medical opinion provided by a competent medical expert” is sufficient to rebut the presumption. Benton v. City of Springfield, 973 S.W.2d 936, 937 (Tenn.1998). We read this to require only that the expert be competent, not that the evidence provided be competent. Therefore, it also does not apply.

LAGERS’ reliance on Buchanan v. Workmen’s Comp. Appeal Bd., 659 A.2d 54 (Pa.Cmwlth.1995) is similarly misplaced. LAGERS claims that the Pennsylvania court found that the presumption was rebutted based on evidence from the medical expert about various risk factors that claimant had. But the court actually said that it would agree with claimant that the presumption was not rebutted if the testimony that LAGERS quoted was the sole basis for the doctor’s opinion, because that went against the legislative determination that heart disease is causally related to fighting fires. Id. at 57. The court found that the presumption was rebutted because the doctor did give claimant the benefit of the rebuttable presumption but “went on to list a series of other intrinsic factors which he opined caused Claimant’s heart disease.” Id.

Dr. Farrar stated that Mr. Byous’ coronary artery disease “resulted from his risk factors for developing coronary artery disease, not from working as a fireman.” He also stated that while Mr. Byous’ heart attack was precipitated by fighting a fire, “hard work alone, in the absence of coronary artery disease, will not cause a heart attack, and does not cause coronary artery disease.” He did acknowledge that hard work contributed to the heart attack, although he said that the risk factors are the predominant cause. His statement that hard work cannot cause heart disease is a denial of the underlying premise of section 87.006. See Gelinas, 649 A.2d at 53. That is all that he offered to show that Mr. Byous’ disease was not caused by his employment, and that is not enough. Although his first statement that Mr. Byous’ disease was not caused by his work might be proper rebuttal, his later statement that hard work does not cause heart disease shows that his basis for the first statement is a denial of the statute’s underlying premise. And while he is not denying the statute’s underlying premise for the heart attack, he also is not saying that work more probably than not did not cause the heart attack, just that it was not the main cause. This is not competent evidence, so Dr. Farrar’s testimony did not overcome the presumption.

Dr. Lammoglia comes closer to meeting the requirements to rebut the presumption because he does not directly deny the statute’s underlying premise. Instead, he says that Mr. Byous did not develop his coronary artery disease from his work as a firefighter. But he also could not state what else caused the coronary artery disease, merely that medical science knows that there are factors which are contributory and that influence the presence of the disease. He also acknowledged that the risk factors indicate a likelihood of contracting the disease, but that not everyone with those risk factors does so; “the risk factors are what’s associated with coronary artery disease. So you can have those risk factors and not have coronary artery disease, but those risk factors can lead you to develop coronary artery disease.” He said that he had no objective way of finding out whether Mr. Byous’ work as a firefighter caused more risk or damage to his heart after his last exam, which did not detect any heart problems. And, as opposed to Dr. Farrar, he specifically said that the risk factors did not cause the coronary artery disease, they are only indicators of that disease. This does not establish a clear, non-work-related cause of the heart disease. See Clark, 518 S.E.2d at 346 (existence of risk factors alone is not enough to rebut the presumption). So he was really denying that work could cause Mr. Byous’ heart attack, the underlying premise of the section 87.006. See Wanstrom, 621 N.W.2d at 870. Because he did not know what caused the disease, he certainly did not show that it was more probably caused by something other than work. And although he said that Mr. Byous’ disease was not caused by work, he could not definitively give a non-work-related cause. So this is also not competent evidence to rebut, and the presumption prevails.

Although the doctors mention the risk factors, they only discuss them broadly. They do not say that any one or combination of factors directly caused the heart disease, just that those risk factors lead to heart disease, which was not enough. See Clark, 518 S.E.2d at 346-47. Also, neither one stated that the risk factors were not caused by work. The risk factors themselves must be shown to not be work-related. See Cunningham, 525 A.2d at 721. Although smoking and genetic influences are not work-related, the others could possibly be work-related and the doctors said nothing about the causes of those risk factors. And if they developed after he was working as a firefighter, they also cannot be relied upon. See Robertson, 616 N.W.2d at 855 (“Any reliance on a risk factor manifesting itself after [plaintiff] began working in law enforcement is misplaced.”). Further, when considering these risk factors, neither doctor appeared to give Mr. Byous the benefit of the presumption before finding that there were other causes. Cf. Buchanan, 659 A.2d at 57. Work did not have to be the sole cause of Mr. Byous’ disease, merely a significant contributing factor. Since neither doctor really ruled out the effect of his work, other than to deny the underlying premise of the statute, firefighting did contribute to Mr. Byous’ coronary artery disease.

IV. Conclusion

To be competent' evidence sufficient to rebut the section 87.006 presumption, the evidence must show that non-work-related causes more probably than not caused the disease and that work was not a significant contributing factor. Put another way, the defendant must show both that firefighting did not cause the disease and that there was a non-work-related cause of the disease. This non-work-related cause must have caused the disease, not merely be one of several factors, and it must not itself have been caused by work. LAGERS did not meet these requirements. LAGERS’ experts merely attacked the statute’s underlying premise. That is not competent evidence to rebut the presumption. They did not show that working as a firefighter more probably than not did not cause the coronary artery disease; they simply said that such work does not cause it. And while they mentioned risk factors, they did not show that those factors caused the disease, they just contributed or are indicators. The legislature created this statute to protect firefighters; this evidence is not sufficient to overcome that protection. So the presumption was not rebutted, and Mr. Byous was entitled to receive duty disability benefits under section 70.680.3. Because there was not competent evidence to rebut the presumption, the Board’s decision is not supported by competent and substantial evidence. We reverse the finding of the Board and order the Board to award Mr. Byous the disability benefits.

Judge THOMAS H. NEWTON writes for the majority.

Chief Judge, EDWIN H. SMITH and Judges HAROLD L. LOWENSTEIN, JOSEPH M. ELLIS, VICTOR C. HOWARD, RONALD R. HOLLIGER and LISA WHITE HARDWICK concur.

Judge JAMES M. SMART writes in a separate concurring and dissenting opinion.

Judges ROBERT G. ULRICH, PATRICIA A. BRECKENRIDGE and PAUL M. SPINDEN concur.

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 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 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.

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 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 attack”), 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.

      . Unless otherwise indicated, all statutory references are to RSMo. (2000).

      . Dr. David Cathcart conducted this physical-fitness-for-duty examination. Dr. Cathcart provided an affidavit to LAGERS which stated that "Mr. Byous passed the fitness for duty examination [on March 21, 1997] which failed to reveal any objective evidence of coronary artery disease or blockage.”

      . As part of meeting this presumption, Mr. Byous must have passed a physical examination that failed to reveal any evidence of a heart condition within five years prior to the time that he made a claim for disability. The Board found that he had done so, and neither party disputes this on appeal.

      . As stated in the facts section, the Board found that section 87.006 applied to Mr. Byous. As this finding was not appealed, the only part of the statute about which we are concerned in this appeal is whether or not the presumption was rebutted by competent evidence.

      . Attributed to legal scholars James Bradley Thayer and Professor Edmund Morgan.

      . It should be noted that Mr. Byous has four siblings and only one died from premature coronary artery disease and his father died of unknown causes. So genetic history is not a strong risk factor.

      . 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.


text:
    STATE of Missouri, Respondent, v. Justin ROBINSON, Appellant.
    No. ED 84519.
    Missouri Court of Appeals, Eastern District, Division Three.
    March 15, 2005.
    Rosalynn Koch, Columbia, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Shaun J. Mackelprang, Jefferson City, MO, for respondent.
    Before CLIFFORD H. AHRENS, P.J., GLENN A. NORTON, J., and NANNETTE A. BAKER, J.
   ORDER

PER CURIAM.

Justin Robinson (“defendant”) appeals the judgment of his conviction of one count of unlawful use of a weapon in violation of section 571.030.1(9) RSMo (Cum.Supp. 2003). Defendant claims that the court plainly erred in failing to hold a hearing on his motion to suppress statements. Defendant also argues that there was insufficient evidence to support his conviction. Finally, defendant claims that the trial court erred in allowing the state to amend the information.

We have reviewed the briefs of the parties and the record on appeal and find no error of law. No jurisprudential purpose would be served by a written opinion. However, the parties have been furnished with a memorandum opinion for their information only, setting forth the facts and reasons for this order.

The judgment of the trial court is affirmed in accordance with Rule 30.25(b).


text:
    Richard Keith CAVALUZZI, Appellant, v. Tammy Jo CAVALUZZI, Respondent.
    No. ED 84554.
    Missouri Court of Appeals, Eastern District, Division Four.
    March 15, 2005.
    John H. Bleekman, Christopher T. Ris-ler, Clayton, MO, for appellant.
    Mary Ann Weems, St. Louis, MO, for respondent.
    Before LAWRENCE E. MOONEY, P.J., LAWRENCE G. CRAHAN and MARY K. HOFF, JJ.
   ORDER

PER CURIAM.

The father, Richard Keith Cavaluzzi, appeals from the trial court’s judgment modifying a prior dissolution decree regarding child custody and child support, and finding that the father owed back child support in the amount of $26,000.

We have reviewed the parties’ briefs and the record on appeal. The trial court’s judgment is supported by substantial evidence. No error of law appears. No jurisprudential purpose would be served by an exposition of the detailed facts and law. The parties, however, have been furnished with a memorandum, for their information only, setting forth the reasons for our decision.

The judgment of the trial court is affirmed in accordance with Rule 84.16(b).


text:
    Christopher MEADOR, Defendant/Movant, v. STATE of Missouri, Plaintiff/Respondent.
    No. ED 84558.
    Missouri Court of Appeals, Eastern District, Division Four.
    March 15, 2005.
    Maleaner Ryna Harvey, Public Defender, St. Louis, MO, for Appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Shawn L. Naccarato, Assistant Attorney General, Jefferson City, MO, for Respondent.
    Before LAWRENCE E. MONEY, P.J. and LAWRENCE G. CRAHAN, J. and MARY K. HOFF, J.
   ORDER

PER CURIAM.

Christopher Meador (Movant) appeals from the motion court’s judgment denying his Rule 24.035 motion for post-conviction relief (motion) after an evidentiary hearing. Movant pled guilty in Cause No. 02CR736360-01 to one count of second-degree assault, in violation of Section 565.060 . The plea court sentenced Movant to four years’ imprisonment in the Missouri Department of Corrections. Movant thereafter timely filed his pro se and amended motions alleging ineffective assistance of his plea counsel.

We have reviewed the briefs of the parties, the legal file, and the record on appeal and find the claims of error to be without merit. No error of law appears. An extended opinion reciting the detailed facts and restating the principles of law applicable to this case would have no jurisprudential value. The parties have been furnished with a memorandum for their information only, setting forth the reasons for our decision. We affirm the judgment pursuant to Rule 84.16(b).

      . All statutory references are to RSMo 2000, unless otherwise indicated.