Zimmerman v. City of Richmond Heights

• Decision Date: 30 June 2006
• Docket Number: No. ED 87319.,ED 87319.
• Citation: 194 S.W.3d 875
• Parties: Joseph ZIMMERMAN, Appellant, v. CITY OF RICHMOND HEIGHTS and St. Louis Area Insurance Trust, Respondent.
• Court: Missouri Court of Appeals

194 S.W.3d 875

Joseph ZIMMERMAN, Appellant, v. CITY OF RICHMOND HEIGHTS and St. Louis Area Insurance Trust, Respondent.

No. ED 87319.

Missouri Court of Appeals, Eastern District, Division Two.

June 30, 2006.

Richard A. Barry III, St. Louis, MO, for appellant.

Julie B. Hovermale, St. Louis, MO, for respondent.

GEORGE W. DRAPER III, Judge.

Joseph Zimmerman (hereinafter, "Employee") appeals from the decision of the Labor and Industrial Relations Commission (hereinafter, "the Commission") denying him permanent partial disability benefits based upon a work-related injury. Employee's sole point on appeal argues there was substantial and competent evidence in the record to support such an award. We reverse and remand.

Section 287.495.1 RSMo (2000)¹ which governs appeals from awards of the Commission, sets out our standard of review:

The court, on appeal, shall review only questions of law and may modify, reverse, remand for rehearing, or set aside the award upon any of the following grounds and no other: (1) [t]hat the [C]ommission acted without or in excess of its powers; (2) [t]hat the award was procured by fraud; (3) [t]hat the facts found by the [C]ommission do not support the award; (4) [t]hat there was not sufficient competent evidence in the record to warrant the making of the award.

The Commission's findings of fact are conclusive and binding. Id. On issues concerning credibility and the weight to be given conflicting evidence, we defer to the Commission's judgment. Bennett v. Columbia Health Care, 134 S.W.3d 84, 92 (Mo.App. W.D.2004). We "must examine the whole record to determine if it contains sufficient competent and substantial evidence to support the award, i.e., whether the award is contrary to the overwhelming weight of the evidence." Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, 222-23 (Mo. banc 2003). We determine whether the award is supported by competent and substantial evidence "by examining the evidence in the context of the whole record." Id. at 223.

The facts are relatively undisputed. Employee is currently a detective with the City of Richmond Heights Police Department (hereinafter, "Employer"). On November 13, 2001, Employee was working the overnight shift as a patrol officer. He had been working the overnight shift for approximately ten consecutive days. Employee left after completing his shift at 7:00 a.m. on November 14, 2001. After returning home, Employee slept briefly because he had been subpoenaed to appear in St. Louis County Circuit Court that afternoon to testify in a criminal case. Employee showered, dressed, and ate lunch before driving back to the police station where he met another officer who was also scheduled to testify that afternoon.

Employee and the other officer arrived at the circuit court, checked in, and discovered court was in recess. The officers took seats on a bench outside of the courtroom and waited for court to resume. The next thing Employee remembers is awakening in the St. Mary's Hospital emergency room. Employee was told he suffered a seizure. Employee stayed at the emergency room for the remainder of the afternoon while tests were conducted. He was released that evening.

Employee's primary care physician referred him to a neurologist, Dr. William Logan (hereinafter, "Dr. Logan"). Employee saw Dr. Logan on November 16, 2001. Dr. Logan scheduled an EEG and an MRI to determine a course of treatment. The tests came back negative and no medication or treatment was prescribed. Dr. Logan diagnosed Employee as having a single tonoclonic seizure caused in part by sleep deprivation.

Following his seizure, Employee was placed on restricted work duty because he was unable to drive for six months. Employer did not have any restricted work duties that did not require driving, so Employee did not work from November 14, 2001 through May 2002. In May 2002, Employee returned to full duty with no work restrictions.

After returning to work, Employee filed for workers compensation benefits, two independent medical evaluations were conducted. Dr. Barry Feinberg (hereinafter, "Dr. Feinberg") evaluated Employee and testified on his behalf. Dr. Feinberg's expertise is in pain management and anesthesiology. Dr. Feinberg examined Employee, took his medical history, and reviewed all of the pertinent medical records and test results before issuing his report. Dr. Feinberg diagnosed Employee with a single seizure and did not see the need for additional medical treatment or work restrictions. Dr. Feinberg testified through deposition that sleep deprivation was the substantial factor in Employee suffering a seizure on November 14, 2001. Further, Dr. Feinberg opined Employee suffered an eight percent permanent partial disability to his body as a whole as a result of the seizure.

Dr. Raymond Cohen (hereinafter, "Dr. Cohen"), a board certified neurologist, examined Employee and testified on behalf of Employer. Similarly, Dr. Cohen received a medical history from Employee, conducted an examination, and reviewed the medical records. Dr. Cohen agreed with Dr. Feinberg's diagnosis and did not see the need for additional medical treatment or work restrictions. However, Dr. Cohen disagreed with Dr. Feinberg with respect to causation. Dr. Cohen acknowledged that the seizure took place while Employee was at work and was brought on partially by his lack of sleep, which was also causally related to his work, but he opined Employee may be predisposed to suffering seizures under certain circumstances. Dr. Cohen considered the sleep deprivation a "triggering" or "precipitating" factor to the seizure, but not enough to be the substantial factor. Dr. Cohen opined Employee suffered a two percent permanent partial disability as a result of the seizure.

The administrative law judge (hereinafter, "the ALJ") determined Employee suffered a compensable injury in that his work as a police officer was a substantial factor in his having a single seizure. The ALJ recognized the discrepancy...