Beckemeyer v. Firemen's Retirement System of St. Louis

424 S.W.3d 1, 2013 WL 5629373, 2013 Mo. App. LEXIS 1181
CourtMissouri Court of Appeals
DecidedOctober 15, 2013
DocketNo. ED 99484
StatusPublished
Cited by4 cases

This text of 424 S.W.3d 1 (Beckemeyer v. Firemen's Retirement System of St. Louis) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Beckemeyer v. Firemen's Retirement System of St. Louis, 424 S.W.3d 1, 2013 WL 5629373, 2013 Mo. App. LEXIS 1181 (Mo. Ct. App. 2013).

Opinion

OPINION

GLENN A. NORTON, Judge.

Joseph Beckemeyer appeals the judgment affirming the decision of the Board of Trustees for The Firemen’s Retirement System of St. Louis (“Board”) denying Beckemeyer’s application for accidental disability retirement benefits. We affirm.

I. BACKGROUND

Beckemeyer was appointed to the City of St. Louis Fire Department in 1999. As a firefighter, Beckemeyer submitted to periodic physical examinations, including a heart and lung examination in 2008 (“2008 examination”). The 2008 examination, consisting of various assessments and pulmonary tests conducted by Dr. Charles Nester and Dr. Jeffrey Harris, was reviewed by Dr. David Kistler, Jr. Included in Dr. Kistler’s report was a spirometry report which indicated “mild obstruction” of Beckemeyer’s lungs and Dr. Harris’ diagnosis of “moderate obstructive airways disease.” Dr. Kistler concluded that Beck-emeyer was capable of performing the active duties of a firefighter but noted that a repeat pulmonary function test was needed in four to six months. Beckemeyer later indicated that he failed to submit to a repeat pulmonary test as recommended by Dr. Kistler because he “was afraid of what it would show.”

In April 2011, Beckemeyer reported to Dr. Robert Pozzi with concerns that he may not meet the requirements for his next physical examination. Specifically, Beckemeyer complained of two instances where he was unable to complete firefighting training exercises due to shortness of breath. Dr. Pozzi assessed Beckemeyer with mild obstruction and encouraged a visit with Dr. Harris. Beckemeyer followed up with Dr. Harris who indicated the following:

A young man with nicotine abuse, history of asthma/intermittent wheezing over the last few years. [Pulmonary function test] several years ago showed mild-to-moderate obstruction without reversibility with a normal diffusion capacity. How much of this has evolved or not is not clear. He had screening spirometry ... which ... suggested] that he has had progression of the disease since 2008 due to nicotine abuse.

After reviewing Dr. Harris’ assessment, Dr. Pozzi provided an assessment of asthma and chronic obstructive pulmonary disease (“COPD”) and referred Beckemeyer to Dr. Francisco Quinones for a second pulmonary opinion. Dr. Quinones diagnosed Beckemeyer with “mild chronic persistent obstruction consistent with asthma” and opined that Beckemeyer should no longer work as a firefighter. Dr. Pozzi agreed with Dr. Quinones’ impression, indicating, “[a]fter having received the opinion of [Dr. Quinones and Dr. Harris] along with the results of [Beckemeyer’s] latest pulmonary function tests, which demonstrate chronic mild persistent obstruction consistent with diagnosis of asthma, we recommend that he NOT return to firefighting.” (emphasis in original).

Based on the assessments provided by Dr. Pozzi and Dr. Quinones, Beckemeyer filed an application with The Firemen’s Retirement System of St. Louis for acci[3]*3dental disability retirement benefits, alleging that his disability occurred while in the actual performance of duty. In his application, Beckemeyer stated that the cause of his disability was “asthma/obstructive airway disease” and indicated that the date of his injury was “n/a.”

Following the submission of his application, Beckemeyer was examined by Dr. Cynthia Byler, Dr. Steven Stahle, and Dr. Mitchell Botney, the three doctors selected to be on the medical board in connection with his application for benefits.1 The medical board unanimously determined that Beckemeyer was physically incapacitated for purposes of performing the duties of a firefighter, that such incapacity was likely permanent, and that Beckemeyer should be retired from firefighting. Dr. Byler listed the cause of Beckemeyer’s incapacity as “asthma, obstructive lung disease” and indicated that Beckemeyer “reports a history of asthma and obstructive pulmonary disease” that was first diagnosed when he saw Dr. Kistler for the 2008 examination. Dr. Stahle reported Beckemeyer’s cause of incapacity as “chronic mild persistent obstruction,” stating that Beckemeyer’s diagnosis was “consistent with asthma.” The cause of incapacity found by Dr. Botney was asthma, and Dr. Botney gave a diagnosis of either asthma alone or a combination of-asthma and COPD.

Following an informal hearing, the Board denied Beckemeyer’s application. Beckemeyer appealed, and a formal evi-dentiary hearing was conducted where Beckemeyer’s testimony and medical records were admitted into evidence. Beck-emeyer testified that the medical condition causing him to stop working for the fire department was asthma and that he was not diagnosed with asthma until 2011. He acknowledged that his incapacity was not the result of a specific accident that occurred in the line of duty. Instead, Beck-emeyer asserted that he was entitled to accidental disability retirement benefits pursuant to the presumption, set forth under section 87.006 RSMo Supp.2007,2 that his incapacity was suffered in the line of duty.

Following the formal evidentiary hearing, the Board upheld its earlier decision and denied Beckemeyer’s application for accidental disability retirement benefits. Specifically, the Board found that the presumption allowed by section 87.006 did not apply to Beckemeyer because Beckemeyer’s 2008 examination revealed evidence of “a lung condition” or “some kind of lung condition.” Because Beckemeyer relied exclusively on section 87.006 and produced no evidence to demonstrate that his incapacity occurred while in the actual performance of duty, the Board found that Beckemeyer was not entitled to accidental disability retirement benefits.

Thereafter, Beckemeyer filed a petition against The Firemen’s Retirement System of St. Louis and the individual members of the Board, Leonard Wiesehan, John Brewer, Bruce Williams, Demetris Alferd, James Sondermann, Neil Svetanics, Dennis Jenkerson, and John Zakibe, requesting review of the Board’s decision: The [4]*4trial court affirmed the Board’s decision, and Beckemeyer appeals.

II. DISCUSSION

In his sole point on appeal, Beckemeyer argues the Board erred in denying his application for accidental disability retirement benefits because it erroneously interpreted and applied section 87.006. We disagree.

A. Standard of Review

When reviewing an appeal from a trial court’s judgment addressing a decision of an administrative agency, we review the administrative agency’s decision and not the judgment of the trial court. Sanders v. Firemen’s Retirement System of St. Louis, 393 S.W.3d 135, 137 (Mo.App. E.D.2013). Nevertheless, in our mandate, we reverse, affirm or otherwise act upon the trial court’s judgment. Id.

“[W]e must determine whether the agency’s findings are supported by competent and substantial evidence on the record as a whole; whether the decision is arbitrary, capricious, unreasonable or involves an abuse of discretion; or whether the decision is unauthorized by law.” Id. (citing article V, section 18 of the Missouri Constitution); see also section 536.140.2 RSMo Supp.2005. We defer to the agency’s determinations on the weight of the evidence and the credibility of the witnesses. Sanders, 393 S.W.3d at 137.

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424 S.W.3d 1, 2013 WL 5629373, 2013 Mo. App. LEXIS 1181, Counsel Stack Legal Research, https://law.counselstack.com/opinion/beckemeyer-v-firemens-retirement-system-of-st-louis-moctapp-2013.