Eimer v. Bd. of Police Com'rs of Kan. City

895 S.W.2d 117, 1995 Mo. App. LEXIS 100, 1995 WL 23606
CourtMissouri Court of Appeals
DecidedJanuary 24, 1995
DocketWD 49439
StatusPublished
Cited by12 cases

This text of 895 S.W.2d 117 (Eimer v. Bd. of Police Com'rs of Kan. City) 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
Eimer v. Bd. of Police Com'rs of Kan. City, 895 S.W.2d 117, 1995 Mo. App. LEXIS 100, 1995 WL 23606 (Mo. Ct. App. 1995).

Opinion

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 ear while cheeking 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 coral; 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 *120 will not be set aside unless it is not supported by substantial evidence or it is clearly contrary to the ovei’whelming 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 “[testimony 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 su-praspinatus 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.

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Bluebook (online)
895 S.W.2d 117, 1995 Mo. App. LEXIS 100, 1995 WL 23606, Counsel Stack Legal Research, https://law.counselstack.com/opinion/eimer-v-bd-of-police-comrs-of-kan-city-moctapp-1995.