Sommer v. Sommer & Hartstein, 65427
| Decision Date | 06 December 1994 |
| Docket Number | No. 65427,65427 |
| Court | Missouri Court of Appeals |
| Parties | Joseph P. SOMMER, Claimant, v. SOMMER & HARTSTEIN, Employer. |
Anne B. Schmidt, Joseph P. Sommer & Associates, P.C., St. Louis, for appellant.
Mark R. Rudoff, St. Louis, for respondent.
This is an appeal from a decision by the Labor and Industrial Relations Commission of Missouri denying employee, an attorney, Workers' Compensation benefits for an allegedly work related coronary artery disease. We affirm the Commission's judgment in that the employee failed to prove that the condition was work related.
The relevant facts, according to the light most favorable to respondent, are as follows: Mr. Sommer is an attorney specializing in insurance subrogation litigation. He was a partner in the firm Sommer & Hartstein. He worked many hours and had a very busy trial schedule. Despite this busy schedule, he did not exercise his authority to hire an associate. Although he was making in excess of $90,000.00 per year, he felt that he could not afford to hire an associate because of his large debts, and his obligation to support four children. He testified that "I can pay all my bills barely, but I can pay them." He admitted that all of the aforementioned contributed to his stress.
Six or seven months prior to June of 1991, Mr. Sommer began to experience shortness of breath. In June of 1991, he experienced extreme chest pain. In July of 1991, he visited a doctor, who administered an electrocardiogram. On July 16, 1991, he was given an angiogram, which exposed eleven blocked arteries. He submitted to quadruple bypass surgery the next day, and could not return to work full time until January of 1992.
Mr. Sommer had a high cholesterol level and had engaged in very little exercise at least since 1987. Mr. Sommer represented to his health insurance carrier, in writing, on at least seventeen separate occasions that his condition was not work related. Nevertheless, he filed this Workers' Compensation claim, under the theory that stress from his job caused his coronary artery disease, and that this disease constituted either an occupational disease, or an injury from a work related accident.
The Administrative Law Judge denied his claims, and this decision was affirmed by the Commission. We must uphold the Commission's decision unless it is unsupported by competent and substantial evidence on the record as a whole, or it erroneously applies the law. Alexander v. D.L. Sitton Motor Lines, 851 S.W.2d 525, 527 (Mo. banc 1993).
Under both the occupational disease and accident theories, the claimant bears the burden of proving that the condition suffered was work related. Passe v. City of St. Louis, 741 S.W.2d 109, 110-11 (Mo.App.E.D.1987); Trammell v. S & K Industries, Inc., 784 S.W.2d 209, 211 (Mo.App.W.D.1989). Section 287.067.1 RSMoSupp.1993 requires that a compensable disease "must appear to have had its origin in a risk connected with the employment." Similarly, section 287.120.1 RSMoSupp.1993 defines an injury by accident "arising out of and in the course of his employment" as the type of injury...
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