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McCormack v. Carmen Schell Construction Co.6/25/2002
the electrical shock. Schell calls attention to Dr. Fevurly's notation in his report to the employer that he " not expect to see further recovery until the legal issues [were] settled in a final and unappealable fashion." (Emphasis in original.) Schell also points to the fact that Dr. Fevurly stated that "there [were] no objective factors to support the need for permanent limitations outside the neuropsychiatric issues of depression, anxiety, and his maladaptive pain behavior." (Emphasis in original.) Schell also cites to portions of the testimony of Dr. Patrick Hughes, a psychiatrist who opined that Mr. McCormack's symptoms "are simply Malingering." (Emphasis in original.) Schell notes that Dr. Hughes' report states that "the cause of [Mr. McCormack's] then-psychiatric distress that necessitated the hospital stay was simply and exclusively his fury and dismay about his adverse jury verdict." Dr. Hughes explicitly disagreed with Dr. Wahba, Mr. McCormack's treating psychiatrist at Charter's opinion to the contrary. Schell highlights the fact that the "nursing assessment," taken when Mr. McCormack first entered Charter, notes that when asked if he "had people mad at a lot," Mr. McCormack replied, "just got out of a big ugly trial." It also notes that Charter records indicate Mr. McCormack had at some time reportedly considered assaulting a neurologist for the defense.
Schell's remaining contentions about the evidence in support of its argument concerning Mr. McCormack's hospitalization at Charter lack any citation to the twenty-five-volume record on appeal. For example, Schell details Mr. McCormack's civil trial and its results without providing any citation in the record to verify its statements. Rule 84.04(i) dictates that " ll statements of fact and argument shall have specific page references to the legal file or the transcript." As explained by the Eastern District, " he requirements of Rule 84.04 are not only mandatory but also essential for the effective functioning of appellate courts." Draper v. Aronowitz, 695 S.W.2d 923, 924 (Mo. App. E.D. 1985). A party's mandated compliance with this Rule allows this court to verify the evidence upon which a party relies in support of its argument; without such compliance, this court would effectively act as an advocate of the non-complying party, which we cannot do. This court cannot assume Schell's statements to be true and cannot spend time "perus the [6,350 page-plus] record to determine if the statements are factually supportable." Lewis v. FAG Bearings Corp., 5 S.W.3d 579, 588 (Mo. App. S.D. 1999).
Schell also relies on Tibbs v. Rowe Furniture Corp., 691 S.W.2d 410 (Mo. App. S.D. 1985), in support of its contention that the Commission's finding on causation concerning his treatment at Charter is against the weight of the evidence. Specifically, Schell emphasizes that in Tibbs the ALJ found claimant's mental condition was not compensable because it was the result of an "unsettled domestic dispute, unfortunate social relationships, and financial difficulties." Id. at 412. Schell claims that Mr. McCormack's "psychiatric maladies" he was treated for at Charter are likewise not compensable because they were caused by the civil trial. We first note that Tibbs was decided prior to substantial amendments to Missouri's Workers' Compensation laws in 1993, and a portion of Tibbs was subsequently called into question by our supreme court as being superceded by statute. See Kasl v. Bristol Care, Inc., 984 S.W.2d 852, 853, 855 app. (Mo. banc 1999) (discussing that cases which allow compensation for an injury of which work was only a "precipitating" or "triggering" cause should no longer be followed). Regardless, we find Tibbs distinguishable. In Tibbs, unlike
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