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McCormack v. Carmen Schell Construction Co.6/25/2002
the contrary evidence is not of greater weight.
Schell also focuses upon "normal" results of other diagnostic testing such as an MRI of the brain, a 24-hour EEG monitoring study, and a SPECT scan, as well as testimony of other doctors who offered opinions contrary to the Commission's award. In each case, there was testimony that the normal results did not conclusively indicate a lack of injury from the electrical shock. For example, Schell argues that Dr. Sam Mehr's finding that a PET scan performed on Mr. McCormack showed that he had abnormal brain function from an electrical injury was discredited by Dr. Helen Mayberg's testimony that she could not determine, based on her experience and training in PET scans, whether or not Mr. McCormack sustained an injury to his brain as a result of an electrical injury. In fact, Dr. Mayberg stated that she "[could] not draw any conclusions. No matter what the PET scan show ." As noted by the ALJ, although Dr. Mayberg agreed that the PET scan did not look normal, "she had no opinion as to whether or not [Mr. McCormack had] a seizure disorder." Dr. Mayberg's testimony does not successfully discredit Dr. Mehr's, which the ALJ and Commission found credible. Even if it did, issues of conflicting medical theories as to causation are for the Commission to decide. Tangblade, 58 S.W.3d at 668.
Schell also attempts to attack the credibility of the doctors who diagnosed Mr. McCormack's psychological problems, such as anxiety and depression, which the doctors opined were a result of the electrical shock. Schell believes that "the claimant's alleged depression and other psychological issues do not fall within the definition of [section] 287.020.2 or [section] 287.020.3." In support of its argument, Schell relies on reasoning from a case previously handed down by this court. However, the Missouri Supreme Court subsequently took that case. The supreme court then issued an opinion, which supercedes this court's prior opinion. Mo. Const. art. V, section 10. The supreme court's opinion does not include the reasoning based upon the "four shorthand tests" discussed in this court's superceded opinion and upon which Schell heavily relies. Thus, we disregard that portion of Schell's argument.
The majority of the evidence provided by Schell was contradicted by the testimony of several of Mr. McCormack's treating doctors as well as lay witnesses who were able to provide a background of Mr. McCormack's physiological condition prior to the electrical shock. For example, Dr. Joyce Tobiasen, Dr. Marvin Steiner, Dr. Sam Mehr, Dr. Mahmoud Wahba, and Dr. Johnson also testified to a reasonable degree of medical certainty that Mr. McCormack suffers from seizures, cognitive dysfunction, myofascial pain, organic mood disorder, depression and post-traumatic stress disorder and varying other physiological and psychological issues as a result of his electrical shock injury. Mr. McCormack's friends and family also testified concerning his condition both before and after the accident. Schell attempts to discredit, or show as "legally insufficient," the doctors' testimony in support of the Commission's findings concerning the relation between Mr. McCormack's complaints and the electrical shock by isolating excerpts from testimony throughout the record and maintaining that the complaints do not fall within the definition of sections 287.020.2 or 287.020.3. We do not find it necessary to individually address all of the conflicting medical opinions presented in this case. The ALJ's findings, as adopted by the Commission, concerning causation of Mr. McCormack's physiological and psychological injuries and disabilities adequately address the matter and are not against the weight of the eviden
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