Eimer v. Board of Police Com'rs of Kansas City, Mo.

• Decision Date: 24 January 1995
• Docket Number: No. WD,WD
• Citation: 895 S.W.2d 117
• Parties: David EIMER, Respondent, v. BOARD OF POLICE COMMISSIONERS OF KANSAS CITY, MISSOURI, Appellant. 49439.
• Court: Missouri Court of Appeals

Page 117

895 S.W.2d 117

David EIMER, Respondent, v. BOARD OF POLICE COMMISSIONERS OF KANSAS CITY, MISSOURI, Appellant.

No. WD 49439.

Missouri Court of Appeals Western District.

Jan. 24, 1995.

Motion for Rehearing and/or Transfer to

Supreme Court Denied Feb. 28, 1995.

Application to Transfer Denied

April 25, 1995.

Howard L. Lotven, Kansas City, for respondent.

Kathleen Hauser, Acting City Atty., Dennis E. Lee, Asst. City Atty., Kansas City, for appellant.

Before SPINDEN, P.J., and LOWENSTEIN and ELLIS, JJ.

PER CURIAM:

The Board of Police Commissioners appeals from a final award of 15% permanent partial disability entered by the Labor and Industrial Relations Commission (Commission). The issue on appeal is whether there was sufficient and competent evidence to prove the cause and extent of the claimant's disability.

The evidence reflects that David Eimer, a police officer for the Kansas City Police Department, was initially injured in November 1985 in a work-related automobile accident. In July 1987, Eimer entered into a settlement agreement based on a permanent partial disability of 16.5% of the body as a whole referable to the neck and back. On April 16, 1990, Eimer was injured when he was struck by a car while checking cars for city stickers at a police checkpoint stop. This is the accident out of which this claim grew. He was struck in the right ankle and legs and thrown onto the hood of the car with the front of his body hitting the windshield. He then bounced off the hood and windshield and flew twenty feet through the air before landing on the pavement on his back and head. He was taken by ambulance to the hospital and treated for injuries to his ankle, knee, legs, back, neck, face and head. On July 6, 1990, Eimer was involved in a non-work-related motorcycle accident.

Eimer filed a claim against the Board of Police Commissioners seeking compensation for injuries resulting from the April 1990 accident. On January 5, 1993, a hearing was held before an administrative law judge. The ALJ issued findings of fact and rulings of law on April 9, 1993, concluding that Eimer had not met his burden of proving that he had sustained a permanent partial disability as a result of the April 1990 accident. The ALJ did, however, award three weeks compensation for disfigurement sustained as a result of that accident.

Eimer filed an application for review with the Commission. The Commission entered a final award on April 15, 1994 modifying the award of the ALJ and finding 15% permanent partial disability of the body as a whole referable to the neck, back and legs as a result of the April 1990 accident. The Commission also upheld the award of compensation for disfigurement. The Board appeals.

The Board contends that the Commission's final award was not supported by sufficient and competent evidence because Eimer failed to prove that he sustained a disability as a result of the April 1990 accident. The Board claims Eimer's physician failed to distinguish between the percentage of disability sustained as a result of the April 1990 accident and the percentage of disability that may have resulted from the non-work-related incident of July 1990.

The standard of review is set forth in § 287.495, RSMo 1986. ¹ In determining the sufficiency of evidence in a workers' compensation case, this court reviews the evidence and inferences in the light most favorable to the Commission's award. Johnson v. City of Kirksville, 855 S.W.2d 396, 398 (Mo.App.1993). The Commission's final award will not be set aside unless it is not supported by substantial evidence or it is clearly contrary to the overwhelming weight of the evidence. Strate v. Al Baker's Restaurant, 864 S.W.2d 417, 419 (Mo.App.1993). This court disregards any evidence which might support a finding different from the Commission's even though the evidence may have been sufficient to support contrary findings. Story v. Southern Roofing Co., 875 S.W.2d 228, 230 (Mo.App.1994). The Commission determines the credibility of witnesses and this court will not substitute its judgment for that of the Commission on issues of fact. Id. Any doubt is to be resolved in favor of the claimant and in favor of workers' compensation coverage. Tate v. Southwestern Bell Telephone Co., 715 S.W.2d 326, 328 (Mo.App.1986).

The award of the Commission is not solely dependent on medical evidence, rather its findings are to be judged on the basis of the evidence as a whole. Nelson v. Consolidated Housing Dev. and Mgmt. Co., 750 S.W.2d 144, 148 (Mo.App.1988). The "[e]xtent and percentage of a disability is a finding of fact within the special province of the Industrial Commission." Fogelsong v. Banquet Foods Corp., 526 S.W.2d 886, 892 (Mo.App.1975). In determining the percentage of disability, the Commission is not bound by the percentage estimates of medical experts and it may consider all of the evidence, including the testimony of the employee and all reasonable inferences. Doria v. Chemetron Corp., 784 S.W.2d 323, 325 (Mo.App.1990). The "[t]estimony of the claimant or other lay witnesses as to facts within the realm of lay understanding can constitute substantial evidence of the nature, cause, and extent of the disability, especially when taken in connection with, or where supported by, some medical evidence." Strate v. Al Baker's Restaurant, 864 S.W.2d at 420.

In this case, the Commission's finding of disability is based on Eimer's testimony and the report of Dr. Zimmerman. Based on Eimer's testimony, the Commission found that Eimer's:

neck does not have the range of motion that it did before the accident. It is stiff and occasionally causes a dull throbbing pain. His upper back flares up and causes him a little pain about once a week. His lower back causes him the most problems. He has pain there almost everyday without a break. He cannot bend over and pick up items and finds it difficult some days to walk, sit or ride in a car. His left knee is a bit stiff at times and cannot handle the stress that it did before. He has trouble cutting the grass and sometimes has to stop and take a break. Finally, his right ankle has a permanent scar, is stiff and won't handle the stress it could previously. The claimant testified that he had none of these problems prior to the April 26, 1990 accident. The claimant was also involved in a non-work related motorcycle accident on July 6, 1990. The claimant testified that accident did not cause any additional problems in his back, neck and legs.

The Commission also cited to the report of Dr. Zimmerman in concluding:

the claimant has a cervicothoracic strain of a chronic nature characterized by pain and discomfort affecting his cervicothoracic spine; lesser occipital nerve entrapment symptomatology; and a left sighted supraspinatus syndrome. The whiplash injury affecting the cervicothoracic spine with the above mentioned diagnosis has caused permanent partial disability of the body as a whole rated at 10 percent. The claimant also has lumbar sacral spine paraspinous myofascitis of a chronic nature causing permanent partial disability of the body as a whole rated at 10 percent. With reference to the claimant's varicosities affecting his lower right extremity with evidence of stasis determitis, the claimant has permanent partial disability of the body as a whole rated at 10 percent. Dr. Zimmerman concluded that, considering all the ratings above, the claimant has a total rating of 30 percent permanent partial disability of the body as a whole referable to the neck, back and legs as a result of those two accidents. (Emphasis added).

The Commission found Dr. Zimmerman to be more credible than the Board's doctor. The Commission also found claimant's testimony to be "entirely credible." The Commission found that claimant was entitled to an award of 15% permanent partial disability of the body as a whole referable to the neck, back and legs as a result of his April 26, 1990 accident. This court holds the award is not supported by substantial evidence.

Eimer bears the burden of proving an accident occurred and that it resulted in injury. Goleman v. MCI Transporters, 844 S.W.2d 463, 465 (Mo.App.1992). He must not only show causation between the accident and the injury but also that a disability resulted and the extent of such disability. Id. When two events, one compensable and one not compensable, contribute to an alleged disability, it is the claimant's burden to prove the nature and extent of the disability attributed to the job-related injury. Bersett v. National Super Markets, Inc., 808 S.W.2d 34, 36 (Mo.App.1991).

Eimer's case rests on Dr. Zimmerman's narrative report plus his own testimony. Dr. Zimmerman rated Eimer's disability at twenty percent to the body as a whole as a result of Eimer's neck and low back injuries and ten percent due to "varicosities affecting his right lower extremity with evidence of stasis determitis." However, Dr. Zimmerman's medical report did not distinguish between the injuries sustained by Eimer as a result of the April 26, 1990 accident and the July 6, 1990 accident. Eimer missed over five weeks from work subsequent to the July accident and only ten days after the accident in April.

Nor did Dr. Zimmerman's medical report distinguish between the injury sustained to Eimer's ankle before the April 26, 1990 accident and the ankle injury sustained as a result of the April 26, 1990 accident. Dr. Zimmerman's report notes that "with reference to his right ankle, [Eimer] states that at the time of the injury sustained on April 26, 1990, that he did have a deep bruise with pain and discomfort affecting this ankle. As stated, Dr. Arbab's record would suggest that this injury to his ankle had preceded the injury of April 26, 1990; however, it did require treatment while hospitalized."

Dr. Zimmerman's narrative report also states that Eimer has no prior injuries, operations or accidents. The doctor apparently did not know that Eimer...