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McCormack v. Carmen Schell Construction Co.6/25/2002
ight of the evidence,' they mean its weight in probative value, not the quantity or amount thereof." Chatmon v. St. Charles County Ambulance Dist., 55 S.W.3d 451, 455 (Mo. App. E.D. 2001). As set forth above in discussing Davis, we consider all evidence in the record, regardless of whether it does not favor the award, in order to determine if the findings and award must be reversed as clearly contrary to the overwhelming weight of the evidence. Davis, 903 S.W.2d at 571. Nonetheless, in considering the effect of all the evidence in the record, we view it in a light most favorable to the Commission's decision. Id. With regard to credibility issues, this court "may not substitute its judgment on the evidence for that of the Commission. The weight of the evidence and the credibility of witnesses are ultimately for the Commission." Id. In this case, except for a modification of the ALJ's award of costs under section 287.560, the Commission adopted the findings and award of the ALJ. This "resulting consistency, especially as concerns credibility determinations, is a powerful factor in favor of upholding the Commission's award on appeal." Id.
Point I: Physiological Causation
In Schell's first point on appeal, it alleges that the Commission "erred in finding physiological causation for [Mr. McCormack]'s complaints and symptoms because [sections] 287.020.32 and [ ] 287.020.3 mandate that [Mr. McCormack] establish that work was a substantial factor with regard to causation." Specifically, Schell argues that "the competent medical evidence failed to establish that the problems of which [Mr. McCormack] complains are related physiologically to electrical shock."
Section 287.020 sets forth the following relevant portions of the statutory definitions relied upon by Schell in its arguments:
2. The word "accident" as used in this chapter shall, unless a different meaning is clearly indicated by the context, be construed to mean an unexpected or unforeseen identifiable event or series of events happening suddenly and violently, with or without human fault, and producing at the time objective symptoms of an injury. An injury is compensable if it is clearly work related. An injury is clearly work related if work was a substantial factor in the cause of the resulting medical condition or disability. An injury is not compensable merely because work was a triggering or precipitating factor.
3. (1) In this chapter the term "injury" is hereby defined to be an injury which has arisen out of and in the course of employment. The injury must be incidental to and not independent of the relation of employer and employee. Ordinary, gradual deterioration or progressive degeneration of the body caused by aging shall not be compensable, except where the deterioration or degeneration follows as an incident of employment.
(2) An injury shall be deemed to arise out of and in the course of the employment only if:
(a) It is reasonably apparent, upon consideration of all the circumstances, that the employment is a substantial factor in causing the injury; and
(b) It can be seen to have followed as a natural incident of the work; and
(c) It can be fairly traced to the employment as a proximate cause; and
(d) It does not come from a hazard or risk unrelated to the employment to which workers would have been equally exposed outside of and unrelated to the employment in normal non-employment life[.] * * * (Italicized emphasis added.)
In support of its argument that the Commission's findings that Mr. McCormack's complaints are physiologically related to the electrical shock incident are against the weight of th
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