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Custer v. Hartford Insurance Co.8/23/2005
cifically, where an employee's participation in golf tournament benefits his employer's business in some way, the golf tournament cannot be considered to be purely recreational so as to trigger the provisions of Section287.120.7. Graham, 117 S.W.3d at 186. Thus, Custer's injuries would be deemed to have arisen out of and in the course of his employment under this rationale as well.
All of the foregoing "exceptions" to the coming and going rule are simply sets of circumstances under which the courts of this state have determined the journey to and/or from work is deemed to be within the course of employment. While the Dissent would apparently attempt to overrule all of the cases that have recognized such "exceptions" over the years, it offers no compelling arguments warranting such a drastic change to the case law, and as noted supra, we are precluded from doing so because we must follow the most recent controlling decisions of our Supreme Court. Kinder, 43 S.W. 3d at 374.
For all of the foregoing reasons, the Commission did not err in finding that Custer's injury occurred during the course and scope of his employment and in awarding benefits to him. Point denied.
In its second point, Hartford claims that the Commission erred in determining that Custer was permanently and totally disabled as a result of the injuries sustained in the accident. Hartford contends that the Commission improperly discounted the opinions offered by Hartford's various experts asserting that Custer was employable in the open labor market. Hartford asserts that the Commission failed to objectively review and evaluate the medical evidence presented and placed too much weight on the fact that Hartford had not been willing to employ Custer in any capacity.
"A claimant is considered totally disabled, for purposes of the [Workers' Compensation Law], if he is unable to return to any employment, not merely the employment in which he was engaged at the time of the accident." Kerns v. Midwest Conveyor, 126 S.W.3d 445, 451 (Mo. App. W.D. 2004) (citing Section 287.020.7 ). "' he test for permanent total disability is the worker 's ability to compete in the open labor market in that it measures the worker's potential for returning to employment.'" McCormack v. Carmen Schell Const. Co., 97 S.W.3d 497, 512 (Mo. App. W.D. 2002) (quoting Karoutzos v. Treasurer of the State of Missouri, 55 S.W.3d 493, 499 (Mo. App. W.D. 2001) ). "The 'pivotal question' is whether an employer can reasonably be expected to hire this employee, given his or her present physical condition, and reasonably expect the employee to successfully perform the work." Garrone v. Treasurer of State of Missouri, 157 S.W.3d 237, 244 (Mo. App. E.D. 2004).
The ALJ's award, which was adopted by the Commission, extensively addressed the nature and extent of Custer's disability. Indeed, the ALJ devoted more than two single spaced typewritten pages to discussion of the evidence regarding Custer's disability. Based upon this thorough review of the evidence, Custer was determined to be unable to compete in the open labor market due to the injuries he sustained in his work-related car accident and was, therefore, permanently and totally disabled.
Hartford acknowledges that the Commission was entitled to make credibility determinations related to the expert testimony offered at the hearing. Indeed, this Court must "'defer to the Commission on issues concerning credibility and weight to be given to conflicting evidence and testimony.'" Birdsong v. Waste Management, 147 S.W.3d 132, 139 (Mo. App. S.D. 2004) (quoting Maas v. Treasurer of the State of Mo., 964 S.W.2d 541, 545 (Mo. App. E.D. 1998)). "'The Commission is free to disregard
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