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McCormack v. Carmen Schell Construction Co.6/25/2002
Mr. McCormack's treatment for his mental and physiological symptoms was causally related to his electric shock injury sustained while working for Schell on December 13, 1995. Judge Fowler also found Schell's discontinuation of Mr. McCormack's benefits on April 1, 1999, to be "wholly unreasonable" under section 287.140.5, and awarded "costs" pursuant to section 287.560. She also ordered that Schell pay Mr. McCormack temporary total disability benefits for the period of April 1, 1999, to October 6, 2000, which is when his permanent total disability benefits began. Judge Fowler further ordered Schell to pay $39,977.67 in medical bills already incurred by Mr. McCormack and not covered by Schell, in addition to an order that it pay his future medical costs. She also awarded Mr. McCormack's counsel a twenty-five percent attorney's fee.
On January 30, 2001, Schell applied for a review of the ALJ's findings and award before the Commission. In its application, Schell alleged the ALJ's award was erroneous: (1) in finding Mr. McCormack to be permanently and totally disabled, (2) in finding that Mr. McCormack did not violate section 287.140.5 in refusing to go to the Mayo Clinic, (3) in finding that its defense of the claim was unreasonable and awarding costs under section 287.560, (4) in finding Mr. McCormack's psychiatric treatment at Charter Hospital beginning July 15, 1999, to be causally related to his injury of December 13, 1995, and (5) in finding that none of the treating physicians determined Mr. McCormack was malingering or faking. On March 14, 2001, in response to Mr. McCormack's answer to Schell's application for review, the Commission designated the case as a hardship, thereby allowing for an accelerated briefing schedule upon receipt of the transcript.
On October 30, 2001, the Commission entered its "Final Order Allowing Compensation." A majority of the Commission found the ALJ's award was supported by competent and substantial evidence and was made in accordance with Chapter 287. The Commission affirmed and incorporated in its order the ALJ's award, except as modified concerning the costs award under section 287.560 for Schell's unreasonable denial of benefits. The Commission noted that the modification was necessary because the ALJ had not specified the amount or nature of the ordered "costs," so the Commission felt compelled, "in view of the admonitions in Stillwell [v. Universal Construction Co., 922 S.W.2d 448 (Mo. App. W.D. 1996)]," to address the issue. The Commission also agreed that Mr. McCormack's failure to go to the Mayo Clinic for treatment was not unreasonable. The Commission further agreed with the ALJ that costs should be assessed against Schell and its insurer, ITT Hartford. However, the Commission found that Schell was not unreasonable in its defense of all issues and took that into account in its award of costs for Schell's unreasonable discontinuation of Mr. McCormack's temporary total benefits. The Commission determined that, "in weighing the nature of the offensive behavior, and the expenses incurred," the appropriate costs to be assessed against Schell and ITT Hartford, under section 287.560, which costs had not been delineated by the ALJ, would be limited to the costs of the deposition fees of the medical experts, or $5,162.50. The Commission also approved and affirmed the attorney's fee award.
This appeal follows.
Standard of Review
Section 287.495.1 governs our review of the Commission's award in Mr. McCormack's favor; it states in relevant part:
Upon appeal no additional evidence shall be heard and, in the absence of fraud, the findings of fact made by the commission within its powers shall be conclusive and b
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