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McCormack v. Carmen Schell Construction Co.6/25/2002
o reasonable medical examination at the request of the employer, his insurer, the commission, the division or an administrative law judge, the time and place of which shall be fixed with due regard to the convenience of the employee and his physical condition and ability to attend. (Emphasis added.)
This issue stems from Schell's arrangement for Mr. McCormack to be seen at the Mayo Clinic in Rochester, Minnesota, the week beginning on April 1, 1999. As explained by the Commission in its description of the circumstances surrounding the event:
The record reflects that [Mr. McCormack]'s attorney wrote [Schell]'s attorney on several occasions explaining that the trip needed to be rescheduled due to [Mr. McCormack]'s situation which required a traveling companion, as well as arrangements for child care. Strangely, [Mr. McCormack] was also scheduled to see [Schell]'s expert on the day he returned, obviously causing a difficult or impossible time conflict. Because of [Mr. McCormack]'s failure or alleged "refusal", [Schell] and insurer discontinued benefits.
The Commission found that Mr. McCormack's "refusal" to go to the Mayo Clinic for an evaluation when scheduled "was neither an unreasonable refusal nor any refusal as contemplated by section 287.140.5." In addition, the Commission found that although Schell had not been unreasonable in its defense of all issues, "the discontinuation of the temporary total disability benefits [when Mr. McCormack was unable to go to the Mayo Clinic] was clearly unreasonable and arbitrary. Accordingly, [Mr. McCormack was] awarded costs pursuant to section 287.560." As a result, " n weighing the nature of the offensive behavior, and the expenses incurred, [the Commission found Schell and its insurer] should pay the costs of the deposition fees of the medical experts . . . in the amount of $5,162.50."
Schell, again urging this court to consider Commissioner Wrigley's opinion to the contrary, argues that the Commission erred in so holding on two inter-related grounds: first, in finding that Mr. McCormack's refusal to go to the Mayo Clinic was not an unreasonable refusal under section 287.140.5, and second, in finding, as a result, that Schell's termination of benefits based upon Mr. McCormack's failure to go to the Mayo Clinic was unreasonable and therefore awarding costs under section 287.560. Schell's argument focuses primarily on the first ground, i.e., it maintains that, as a matter of law, Mr. McCormack's refusal to go to the Mayo Clinic was unreasonable under section 287.140.5. Schell maintains that this issue warrants de novo review because it involves a finding of ultimate fact reached by application of law. We disagree. The majority of its arguments are matters of factual re-argument and credibility issues. Schell seeks to attack determinations made by the Commission that were "reached [ ] by a process of natural reasoning from the facts alone" and are, therefore, granted deference. Davis, 903 S.W.2d at 571. For example, Mr. McCormack, his wife, his daughter, his father-in-law, and some of Mr. McCormack's neighbors and friends testified. Schell argues there was no explanation as to why one of those persons could not have accompanied Mr. McCormack to the Mayo Clinic, so Mr. McCormack's contentions that he had no traveling companion "[were] simply without merit." Schell also touts the reputation and attributes of the Mayo Clinic and argues that Mr. McCormack's "refusal" to go to the "world-renowned" Mayo Clinic is inconsistent with his desire to get better. With regard to the Commission's finding concerning the "difficult or impossible time conflict," Schell claims that the expert the Commission is referring to was hired in the civil tria
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