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Custer v. Hartford Insurance Co.8/23/2005
testimony of a witness even if no contradictory or impeaching evidence is introduced.'" Id . Furthermore, " t is in the Commission's sole discretion to determine the weight to be given expert opinions." Id . " ur courts have consistently held that the Commission, in cases of competing expert medical evidence, is free to pick and choose which expert to believe." Kerns, 126 S.W.3d at 452-53.
This case clearly involved testimony by multiple experts for both the employer and the employee that could have supported a decision either way. Hartford certainly presented sufficient evidence from which the Commission could have determined that Custer was not permanently and totally disabled had the Commission found that evidence credible. The evidence presented by the employee, however, was likewise more than sufficient, if deemed credible, to support a finding that he was permanently and totally disabled. Reconciliation of such conflicting evidence is a question of fact for the Commission. Garrone, 157 S.W.3d at 245. Despite differing medical opinions as to the extent of Custer's injuries and his employability, the Commission's award is clearly not contrary to the overwhelming weight of the evidence and, thus, is supported by competent and substantial evidence on the whole record. See Hampton, 121 S.W.3d at 223-24; Kerns, 126 S.W.3d at 451.
Hartford does not, however, challenge the sufficiency of the evidence to support the award nor does it offer an argument attempting to establish that the overwhelming weight of the evidence established that Custer was not permanently and totally disabled. Instead, Hartford takes issue with the portion of the award referencing the fact that Dr. Childers, Dr. Zarr and the Rehabilitation Institute made their determinations as to Custer's employability prior to his interviewing for a claims adjuster position with Hartford and that the fact-finder was giving "little if no weight to the employer's defense, as well as the evidence presented on this issue since Hartford would not hire Claimant in any capacity despite their own experts' recommendations." Hartford contends that this statement establishes that the Commission improperly failed to even consider the testimony of its expert witnesses and based its finding entirely upon Hartford's failure to rehire Custer, which it contends could have occurred for any number of reasons, rather than upon a finding that its experts were not as credible as Custer's experts. Hartford asserts that " he action of the Commission was in excess of its powers and is an abuse of discretion as it failed to weigh or consider credible and properly admitted evidence on its own merits and instead punish Hartford for failing to rehire Custer."
Hartford cites to no authority for its apparent contention that the Commission cannot consider whether the employee had success in his or her attempts to obtain further employment in determining whether the employee is employable in the open labor market, and we have found no such authority. Regardless, the award reflects that the ALJ and the Commission considered all of the evidence offered by Hartford and Custer and simply found that the expert testimony offered by Custer was more credible. That decision was well within the province of the Commission. The award certainly does not, as contended by Hartford, establish that the Commission did not even consider the testimony of its experts due to Hartford's failure to rehire Custer. Point denied.
For the foregoing reasons, the Commission's award is affirmed.
Dissenting Opinion by Judge Smart
Mr. Custer, whose work was over for the day, was no longer "in the course of his employment" at the time of this injury.
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