 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Higgins v. Quaker Oats Co.11/29/2005
oprivica, who is not a psychiatrist, agreed with Dr. Pro that Employee was totally disabled and deferred to Dr. Pro's psychiatric analysis. Dr. Koprivica assigned 25% disability to Employee's pre-existing degenerative disc disease and only 15% to cumulative trauma. Dr. Michael Poppa, who is not a psychiatrist, opined that Employee suffered no permanent disability due to cumulative trauma or depression. The Commission expressly found Dr. Pro's opinion credible and gave it greater weight, including his opinion that Employee did not exhibit purposeful symptom magnification. The Commission also expressly found Employee to be a credible witness.
Employee left school after the ninth grade, but completed her GED in 1977. Her work experience prior to Quaker Oats includes driving a tractor-trailer, operating a sewing machine, tending bar, packing meat, and cashiering at a convenience store. Other than truck-driver training, she has completed no vocational education. Vocational expert Mary Titterington, whom the ALJ found credible and well qualified, performed intelligence, reading comprehension, and vocabulary tests, and concluded that Employee is of average intelligence but cannot focus. The tests further indicated that Employee was putting forth a good effort, not attempting to skew the results. Ms. Titterington testified that Employee's physical limitations left her able to perform only sedentary work, and that the psychological factors as diagnosed by psychiatrists left employee unemployable.
Discussion
I.
In its first point on appeal, Employer asserts that the Commission acted without or in excess of its power when it allowed Employee to present a "hybrid" claim comprising the cumulative trauma along with the two specific instances of back injury. Employer cites no authority explaining the limits of the Commission's power. Employer cites no authority exemplifying when the Commission acts within or beyond its power. Employer cites only authorities indicating this court's standard of review, namely Hampton v. Big Boy Steel Erection, 121 S.W.3d 220 (Mo. banc 2003), and Section 287.495.1(1). The one additional authority cited by Employer, Holaus v. William J. Zickell Co., 958 S.W.2d 72 (Mo. App. 1997), says nothing at all about the scope of the Commission's power, and is therefore irrelevant to this point on appeal.
Employer properly states the standard of review. But the standard of review provides no guidance on the limits of power vested in the Commission by the legislature. Employer therefore fails to cite any authority relevant to its point. Rule 84.04(d)(5) requires that each point include a list of authority on which the appellant relies. "Ordinarily, a point of error unsupported by citation of relevant authority is deemed abandoned." Bishop v. Bishop, 618 S.W.2d 261, 263 (Mo. App. 1981) (emphasis added). Because Employer cites no relevant authority for the assertion that the Commission erred by acting without or in excess of its power, we deem Employer's first point abandoned.
II.
We combine our discussion of Points II, IV, and V because each deals with whether the award was supported by sufficient competent evidence or was against the overwhelming weight of the evidence in various respects. Each point deals with much of the same evidence and is subject to the same standard of review. This court reviews conclusions of the Commission to determine if they are supported by sufficient competent evidence. Section 287.495.1(4). "An award that is contrary to the overwhelming weight of the evidence is, in context, not supported by competent and substantial evidence." Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, 223 (Mo. banc 2003
Page 1 2 3 4 5 6 7 Missouri Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|