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McCormack v. Carmen Schell Construction Co.6/25/2002
l and was not Schell's expert. In support of this argument, Schell again cites to another appeal previously before this court and the transcript therein. There is no citation to the record before the Commission, so these contentions will not be considered.
For each of Schell's factual arguments, evidence to the contrary was before the Commission, and we review the award in a light most favorable to the contrary Commission findings. Pursuant to the standard of review set forth in Davis, the Commission's findings that Mr. McCormack did not unreasonably refuse treatment at the Mayo Clinic and that Schell's subsequent termination of benefits was unreasonable, thus warranting an award of costs, are supported by competent and substantial evidence on the whole record and are not against the overwhelming weight of the evidence. Id.
Point III is denied.
Point IV: Permanent and Total Disability
In Schell's fourth and final point on appeal, it alleges that a majority of the Commission erred in finding Mr. McCormack to be permanently and totally disabled. Specifically, Schell maintains that the Commission arbitrarily "cast aside unimpeached evidence as the preponderance, if not the overwhelming weight, of the evidence demonstrated that claimant was not permanently and totally disabled as a result of the injury."
Section 287.020.7 states that "'total disability' . . . shall mean inability to return to any employment and not merely mean inability to return to the employment in which the employee was engaged at the time of the accident." (Emphasis in original.) As this court recently explained:
" he test for permanent total disability is the worker's ability to compete in the open labor market in that it measures the worker's potential for returning to employment. The critical question then becomes whether any employer in the usual course of employment would reasonably be expected to hire this employee in his or her present physical condition." Karoutzos v. Treasurer of the State of Missouri, 55 S.W.3d 493, 499 (Mo. App. W.D. 2001) (quoting Reese v. Gary & Roger Link, Inc., 5 S.W.3d 522, 526 (Mo. App. E.D. 1999)).
Schell argues Mr. McCormack did not suffer a permanent total disability as a result of the electrical shock. Once again, Schell urges this court to consider Commissioner Wrigley's dissenting opinion as probative. A large part of Schell's argument in Point IV is a re-argument of the causation issues previously discussed in this opinion and will not be revisited. To the extent that the argument differs, we do not feel it is necessary to set forth at length the evidence contrary to the Commission's findings as they are not against the weight of the evidence. Schell cites to the case of Garibay v. Treasurer of Missouri, 930 S.W.2d 57, 61 (Mo. App. E.D. 1996), as mandating that "competent, substantial and undisputed evidence of an unimpeached witness can not be arbitrarily cast aside." Although Schell's citation to Garibay is correct, a large portion of Schell's argument again lacks citation to the record in violation of Rule 84.04(i), and we perceive no indication that the Commission "arbitrarily cast aside" any evidence. To the contrary, the ALJ's fourteen pages of Findings of Fact and Conclusions of Law, which were largely incorporated into the Commission's award, show that the vast amount of evidence was carefully considered. The primary issues raised by Schell ultimately involve questions of fact, credibility and conflicting medical opinions, on which matters we defer to the Commission. Davis, 903 S.W.2d at 571.
Point IV is denied.
Conclusion
The record contains sufficient competent
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