McCormack v. Carmen Schell Const. Co.

• Decision Date: 25 June 2002
• Docket Number: No. WD 60771.,WD 60771.
• Citation: 97 S.W.3d 497
• Parties: Virgil McCORMACK, Respondent, v. CARMEN SCHELL CONSTRUCTION COMPANY, Appellant/Employer, and ITT Hartford Insurance Company, Appellant/Insurer.
• Court: Missouri Court of Appeals

97 S.W.3d 497

Virgil McCORMACK, Respondent, v. CARMEN SCHELL CONSTRUCTION COMPANY, Appellant/Employer, and ITT Hartford Insurance Company, Appellant/Insurer.

No. WD 60771.

Missouri Court of Appeals, Western District.

June 25, 2002.

COPYRIGHT MATERIAL OMITTED

Thomas R. Hill, Geoff Clark, Kansas City, for Appellant.

Richard P. Scaletty, Independence, for Respondent.

Before ELLIS, P.J., and EDWIN H. SMITH and HOWARD, JJ.

VICTOR C. HOWARD, Judge.

Employer Carmen Schell Construction Company (Schell)¹ appeals from the decision of the Labor and Industrial Relations Commission (the Commission) awarding workers' compensation benefits to its employee Virgil McCormack for injuries caused by an electrical shock.

Schell brings four points on appeal. First, it alleges that the Commission erred in finding that Mr. McCormack's complaints and symptoms are physiologically related to electrical shock. Second, Schell alleges that the Commission erred in awarding additional medical expenses to Mr. McCormack relating to treatment of his mental condition at Charter Hospital, because Mr. McCormack failed to prove his mental condition was directly and proximately caused by the electrical shock accident. Third, Schell alleges that the Commission erred in awarding costs to Mr. McCormack pursuant to sections 287.140.5 and 287.560 RSMo 2000.² Schell maintains that Mr. McCormack unreasonably refused to submit to treatment at the Mayo Clinic, so Schell's termination of Mr. McCormack's benefits and defense of the claim when Mr. McCormack did not go to the Mayo Clinic was not unreasonable. Fourth, Schell alleges that the Commission erred in finding Mr. McCormack was permanently and totally disabled as a result of the injuries he sustained in the electrical shock accident.

We affirm.

Background

In March 1995, Schell hired Virgil McCormack to perform layout work and framing at the Marion Merrill Dow project in Kansas City, Missouri. On December 13, 1995, Mr. McCormack was standing on a scaffolding approximately six feet above the floor with his chest and arms against a metal sprinkler pipe as he took measurements to install sheetrock when his elbow came in contact with a live, uninsulated electrical wire. After being shocked, Mr. McCormack collapsed to the floor of the scaffold, and his co-workers sought medical attention. After a one-night stay in the hospital for observation and a few days spent at home for recovery, Mr. McCormack attempted to return to work, where he experienced numbness and tingling in his arms and problems with pain and dizziness. He was unable to continue working as a result.

Over the next several years, Mr. McCormack received extensive medical treatment for his injuries sustained in the electrical shock incident. Various doctors diagnosed his injuries to include a seizure disorder, cognitive dysfunction, organic mood disorder, depression, anxiety, and post-traumatic stress disorder. Mr. McCormack received extensive workers' compensation benefits and vocational services for his injuries until Schell discontinued his benefits on April 1, 1999, after Mr. McCormack was unable to attend an appointment at the Mayo Clinic in Minnesota that had been arranged by Schell.

A final hearing was held before Administrative Law Judge (ALJ) Emily Fowler from October 2 through October 5, 2000. Both sides offered extensive testimony, both lay and medical, in addition to extensive supporting documentation.³ On January 11, 2001, Judge Fowler issued her findings of fact and rulings of law, in which she found Mr. McCormack to be permanently and totally disabled as a result of his injuries sustained in the electrical shock incident. Judge Fowler's findings include extensive details of Mr. McCormack's medical treatment and summaries of the testimony offered at the hearing in support of her award, which we discuss in more detail where necessary in our consideration of Schell's points on appeal. In addition to finding Mr. McCormack permanently and totally disabled, Judge Fowler found that 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 287.560.⁴ 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 Commission⁵ found the ALJ's award was supported by competent and substantial evidence and was made in accordance with Chapter 287.⁶ 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 binding. The court, on appeal, shall review only questions of law and may modify, reverse, remand for rehearing, or set aside the award upon any of the following grounds and no other:

(1) That the commission acted without or in excess of its powers;

(2) That the award was procured by fraud;

(3) That the facts found by the commission do not support the award;

(4) That there was not sufficient competent evidence in the record to warrant the making of the award.

Thorsen v. Sachs Elec. Co., 52 S.W.3d 611, 617 (Mo.App. W.D.2001); Mo. Const. art. V, § 18. Although an employee bears the burden of proving the elements of his claim to a "reasonable probability," it is well-settled that "[t]he Workers' Compensation Law should be interpreted in a liberal manner in favor of the employee. Questions regarding the right of the employee to benefits must be resolved in the injured employee's favor." Avery v. City of Columbia, 966 S.W.2d 315, 320 (Mo.App. W.D.1998) (citations omitted).

Generally, we review the findings of the Commission rather than those of the ALJ. Tangblade v. Lear Corp., 58 S.W.3d 662, 665 (Mo.App. W.D.2001). However, when the Commission affirms or adopts the findings of the ALJ, as it has here except for its modification of the ALJ's award of costs, our review is of the decision and findings of the ALJ as adopted by the Commission. Id. We borrow from Davis v. Research Medical Center, 903 S.W.2d 557, 571 (Mo.App. W.D.1995) (en banc) in explaining our standard of review:

The court applies a two-step process designed to determine whether the Commission could have reasonably made its findings and award upon consideration of all the evidence before it. In the first step, the court examines the whole record, viewing the evidence and all reasonable inferences drawn therefrom in the light most favorable to the award, to determine if the record contains sufficient competent and substantial evidence to support the award. If not, the Commission's award must be reversed. If there is competent and substantial evidence supporting the award, the court moves to the second step, where it views the evidence in the light most favorable to the award, but must consider all evidence in the record, including that which...