Employee, a police officer, suffered a seizure while waiting to testify in court. The administrative law judge (ALJ) held that employee suffered a work-related injury, but awarded employee only unpaid past medical costs, ruling that employee was not permanently partially disabled by such injury. I, John J. Hickey, join with my fellow Commissioners in affirming the ALJ findings supporting the conclusion that the injury sustained by employee was within the course and scope of employment. I also join in the conclusion that the award of past medical costs should be affirmed. I respectfully dissent from the opinion of the majority of this Commission that employee was not entitled to benefits as a result of incurring a permanent, partial disability.
In a workers' compensation case, it is employee's burden to prove the elements of a workers' compensation claim, but only to a reasonable probability, not to an absolute certainty. Tate v. Southwestern Bell Telephone Co., 715 S.W.2d 326, 329 (Mo. App. 1986). Employee proffered un-contradicted and credible expert medical testimony that employee was permanently partially disabled, in the form of the medical opinion of Dr. Feinberg. Dr. Feinberg's opinion was not contradicted. The testimony of Dr. Cohen, employer's expert, concurs with and supports Dr. Feinberg's opinion, clearly also stating that employee is permanently, partially disabled. Therefore, there is absolutely no medical evidence in the record upon which the majority could base a conclusion that employee was not permanently partially disabled. Neither the medical experts nor the treating physician testified that employee was not permanently partially disabled. Thus, employee has clearly met the burden in this case with regard to the extent of his disability.
To reach their conclusion, the ALJ and the majority ignored competent and substantial evidence in the record, presented by credible and un-contradicted medical experts testifying for both employee and employer. That evidence concluded unanimously that employee was permanently partially disabled, 8 % and 2 % respectively, related to the body as a whole. The majority relied on the testimony of Dr. Cohen, whom it found to be "persuasive." Yet they ignored the testimony that follows, which clearly undermines their conclusion. Dr. Cohen was asked, "[A]re you basically saying that but for the sleep deprivation Officer Zimmerman would not have had this seizure?" Dr. Cohen's answer: "Yes."
Employee had worked a night shift for approximately ten nights in a row. He worked a night shift through 7:00 a.m. on November 14, 2001. As part of his work duties, he had to testify in court at 1:00 p.m. After taking out the time it took for employee to go home, clean up, dress, eat, and leave again for court, he only got about two hours of sleep. Dr. Cohen testified that but for this sleep deprivation caused by his work, employee would not have had the seizure. Dr. Cohen also testified that employee had suffered a 2 % permanent partial disability to his body as a whole as a result of the seizure. Accordingly, for the Commission majority to rely on Dr. Cohen for a conclusion that employee's disability was not attributable to his injury is not logical. The Commission majority is not free to arbitrarily disregard and ignore un-contradicted and un-impeached competent and substantial evidence in
reaching their decision. Houston v. Roadway Express, Inc., 133 S.W.3d 173, 179 (citing Corp v. Joplin Cement Co., 337 S.W.2d 252, 258 (Mo. Banc 1960)).
Thus, the decision of the ALJ and the majority is contrary to the overwhelming weight of the medical evidence in the record. Therefore, on the sole issue of the extent of disability, the ALJ should be reversed. I find, based on the overwhelming weight of the medical evidence in the record, that the employee is 8 % permanently and partially disabled.
John J. Hickey, Member