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McCormack v. Carmen Schell Construction Co.6/25/2002
e evidence, Schell relies heavily upon Commissioner Wrigley's dissenting opinion. Commissioner Wrigley offered the following brief, conclusory reasoning for his dissent from the majority's finding in favor of Mr. McCormack:
The competent medical evidence fails to establish that the problems of which the employee now complains is related physiologically to electrical shock. The medical testing reflects no diagnosis of disease or injury to his chest or leg. The findings of Dr. Abrams, as to cognitive deficit, are based upon the employee's subjective statement. The other medical evidence finds no cognitive problems or suggests that the employee may be malingering. While I do not doubt that the employee has sustained some injury and disability as a result of this event, I believe the preponderance, if not the overwhelming weight of the evidence, demonstrates that the employee is not permanently and totally disabled as a result of that injury.
Schell cites Davis in support of its argument that this dissenting opinion "should be considered as presumptively probative or as a great aid to the reviewing Court." Specifically, Schell argues that Davis, 903 S.W.2d at 571, discusses that the dissent's determination of "the evidentiary issues of competent medical evidence, preponderance of the evidence, and overwhelming weight of the evidence . . . should be a 'great aid' to the reviewing court." However, Schell cites Davis out of context. Davis says nothing about a dissenting Commissioner's opinion except to note that there was one. Schell's argument that the dissent's articulated reasoning for its determinations contrary to those of the ALJ are probative misconstrues Davis. In Davis, this court was asked to review an award by the Commission that had reversed the findings and award by the ALJ. 903 S.W.2d at 570. In discussing the second step of the standard of review described above, Davis points out that:
when the Commission's determinations as to the credibility of witnesses who gave live testimony before the ALJ are different from those made by the ALJ, the ALJ's contrary findings must be given due consideration, bearing in mind that evidence supporting a conclusion may be less substantial when an impartial, experienced ALJ who has observed the witnesses and lived with the case has drawn conclusions different from the Commission's. In such cases, it is therefore a great aid to the reviewing court if the Commission articulates the reasons why it differed in its credibility determinations. Otherwise, this court is left to search the record and speculate as to the Commission's rationale. Id. at 570-71 (emphasis added).
The case now before us is not "such a case." Here, unlike in Davis, the majority of the Commission adopted the ALJ's detailed, fourteen-page opinion awarding Mr. McCormack permanent and total disability benefits, with only a minor modification regarding the ALJ's award of costs. As explained above in our discussion of the standard of review, "the resulting consistency [between the ALJ's and the Commission's determinations], especially as concerns credibility determinations, is a powerful factor in favor of upholding the Commission's award on appeal." Id. at 571.
We, therefore, turn to our review of the entire record to determine whether the Commission's award is against the weight of the evidence. First, we note that the record on appeal consists of more than 6,350 pages of testimonial and documentary evidence related to Mr. McCormack's accident and his subsequent, substantial medical treatment. Schell isolates small portions of the medical evidence in support of its argument that the award is against the weight of the evidence while seemingly disregardin
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