overwhelming weight of the evidence . . . should be a 'great aid' to the reviewing court." However, Schell cites Davis out of context. Davis says nothing about a dissenting Commissioner's opinion except to note that there was one. Schell's argument that the dissent's articulated reasoning for its determinations contrary to those of the ALJ are probative misconstrues Davis. In Davis, this court was asked to review an award by the Commission that had reversed the findings and award by the ALJ. 903 S.W.2d at 570. In discussing the second step of the standard of review described above, Davis points out that: when the Commission's determinations as to the credibility of witnesses who gave live testimony before the ALJ are different from those made by the ALJ, the ALJ's contrary findings must be given due consideration, bearing in mind that evidence supporting a conclusion may be less substantial when an impartial, experienced ALJ who has observed the witnesses and lived with the case has drawn conclusions different from the Commission's. In such cases, it is therefore a great aid to the reviewing court if the Commission articulates the reasons why it differed in its credibility determinations. Otherwise, this court is left to search the record and speculate as to the Commission's rationale. Id. at 570-71 (emphasis added). The case now before us is not "such a case." Here, unlike in Davis, the majority of the Commission adopted the ALJ's detailed, fourteen-page opinion awarding Mr. McCormack permanent and total disability benefits, with only a minor modification regarding the ALJ's award of costs. As explained above in our discussion of the standard of review, "the resulting consistency [between the ALJ's and the Commission's determinations], especially as concerns credibility determinations, is a powerful factor in favor of upholding the Commission's award on appeal." Id. at 571. We, therefore, turn to our review of the entire record to determine whether the Commission's award is against the weight of the evidence. First, we note that the record on appeal consists of more than 6,350 pages of testimonial and documentary evidence related to Mr. McCormack's accident and his subsequent, substantial medical treatment. Schell isolates small portions of the medical evidence in support of its argument that the award is against the weight of the evidence while seemingly disregarding the large amount of medical testimony and evidence to the contrary. Schell appears to have overlooked the deference we grant the majority of the Commission with regard to its credibility findings when conflicting medical theories as to causation are presented, Tangblade, 58 S.W.3d at 668, while also overlooking the fact that although we consider all evidence in the second step of our review, the evidence is nonetheless viewed in a light most favorable to the Commission's award. Davis, 903 S.W.2d at 571. Schell's arguments primarily rely upon the fact that several of the objective neurological tests performed on Mr.
McCormack produced "normal" results. For example, Schell points to the fact that Dr. Bernard Abrams, a neurologist who first saw Mr. McCormack in October of 1998 and who diagnosed Mr. McCormack's brain injury "manifested by seizure disorder and cognitive difficulties," conducted three EEG(FN8) examinations of Mr. McCormack's brain wave function. All three EEG's produced "normal" results. While this may indeed be the case, Schell fails to acknowledge that further review of Dr. Abrams' testimony reveals that Dr. Abrams subsequently explained that it is not unusual for patients suffering from seizures to have normal neurological examinations. In fact, Dr. Abrams testified that forty percent of the time seizure patients have normal EEGs. Dr. Abrams also explained that it is not unusual for there to be a lag time between the date of initial injury and development of seizures. In Dr. Abrams' opinion, to a reasonable degree of medical certainty, Mr. McCormack's seizure disorder and cognitive dysfunction were caused by the electric shock injury of December 13, 1995. Dr. Abrams also testified that as a result of the shock, Mr. McCormack suffers from a wide range of work-related limitations, such as the inability to work at heights or around equipment that would endanger him if he lost consciousness, a "very poor" ability to learn and retain job tasks, emotional instability causing the inability to get along well with others, and musculoskeletal pain. Schell's focus upon only "normal" test results does not discredit this testimony. Schell also argues that the testimony of Dr. Gordon Kelley, a neurologist who first examined Mr. McCormack on January 10, 1996, less than a month after the accident, supports its argument that Mr. McCormack's complaints were not physiologically related to electrical shock. Schell points out that Dr. Kelley performed a nerve conduction study and an EMG on Mr. McCormack. Dr. Kelley determined that Mr. McCormack had not sustained any electrical burns from the incident and the only abnormal finding of the tests was carpal tunnel syndrome. Dr. Kelley admittedly made such determination prior to obtaining Mr. McCormack's complete medical history, which showed in his hospital records that he did suffer a small electrical burn near his right elbow. Schell also cites to Dr. Kelley's re-evaluation of Mr. McCormack's chest and shoulder discomfort on February 23, 1996. As emphasized by Schell, Dr. Kelley determined that "the relationship [of his chest pain] to the electrical shock [was] unclear," and "the pattern of his symptoms and his basically normal bedside exam made [Dr. Kelley] think it was very unlikely it was a disease of the brain, spinal cord, or peripheral nerves or muscles." Schell again apparently disregards the fact, as noted in the findings of the Commission, that "[o]n cross-examination, Dr. Kelley admitted that an electrical shock to [Mr. McCormack's] right arm could cause the carpal tunnel and, further, that [Mr. McCormack's] chest and shoulder pain also could be due to the electric shock injury." This evidence supports the Commission's finding of causation and the contrary evidence is not of greater weight. Schell also focuses upon "normal" results of other diagnostic testing such as an MRI of the brain, a 24-hour EEG monitoring study, and a SPECT scan, as well as testimony of other doctors who offered opinions contrary to the
Commission's award. In each case, there was testimony that the normal results did not conclusively indicate a lack of injury from the electrical shock. For example, Schell argues that Dr. Sam Mehr's finding that a PET scan performed on Mr. McCormack showed that he had abnormal brain function from an electrical injury was discredited by Dr. Helen Mayberg's testimony that she could not determine, based on her experience and training in PET scans, whether or not Mr. McCormack sustained an injury to his brain as a result of an electrical injury. In fact, Dr. Mayberg stated that she "[could] not draw any conclusions. No matter what the PET scan show[ed]." As noted by the ALJ, although Dr. Mayberg agreed that the PET scan did not look normal, "she had no opinion as to whether or not [Mr. McCormack had] a seizure disorder." Dr. Mayberg's testimony does not successfully discredit Dr. Mehr's, which the ALJ and Commission found credible. Even if it did, issues of conflicting medical theories as to causation are for the Commission to decide. Tangblade, 58 S.W.3d at 668. Schell also attempts to attack the credibility of the doctors who diagnosed Mr. McCormack's psychological problems, such as anxiety and depression, which the doctors opined were a result of the electrical shock. Schell believes that "the claimant's alleged depression and other psychological issues do not fall within the definition of [section] 287.020.2 or [section] 287.020.3." In support of its argument, Schell relies on reasoning from a case previously handed down by this court. However, the Missouri Supreme Court subsequently took that case. The supreme court then issued an opinion,(FN9) which supercedes this court's prior opinion. Mo. Const. art. V, section 10. The supreme court's opinion does not include the reasoning based upon the "four shorthand tests" discussed in this court's superceded opinion and upon which Schell heavily relies. Thus, we disregard that portion of Schell's argument. The majority of the evidence provided by Schell was contradicted by the testimony of several of Mr. McCormack's treating doctors as well as lay witnesses who were able to provide a background of Mr. McCormack's physiological condition prior to the electrical shock. For example, Dr. Joyce Tobiasen, Dr. Marvin Steiner, Dr. Sam Mehr, Dr. Mahmoud Wahba, and Dr. Johnson also testified to a reasonable degree of medical certainty that Mr. McCormack suffers from seizures, cognitive dysfunction, myofascial pain, organic mood disorder, depression and post-traumatic stress disorder and varying other physiological and psychological issues as a result of his electrical shock injury. Mr. McCormack's friends and family also testified concerning his condition both before and after the accident. Schell attempts to discredit, or show as "legally insufficient," the doctors' testimony in support of the Commission's findings concerning the relation between Mr. McCormack's complaints and the electrical shock by isolating excerpts from testimony throughout the record and maintaining that the complaints do not fall within the definition of sections 287.020.2 or 287.020.3. We do not find it necessary to individually address all of the conflicting medical opinions presented in this case. The ALJ's findings, as
adopted by the Commission, concerning causation of Mr. McCormack's physiological and psychological injuries and disabilities adequately address the matter and are not against the weight of the evidence. Point I is denied. Point II: Hospitalization at Charter -- Causation Schell's second point on appeal challenges the Commission's award to Mr. McCormack of additional medical expenses for his hospitalization at Charter Hospital. Schell alleges that an unfavorable civil jury verdict not the electrical shock led to his Charter hospitalization and the attendant medical costs. Missouri's Workers' Compensation Law compensates a worker for a mental condition if it is shown to have been directly and proximately caused by the accident. Chatmon, 55 S.W.3d at 456. Schell maintains that Mr. McCormack failed to meet his burden of proof in showing that the mental condition for which he received treatment at Charter Hospital was directly and proximately caused by the electrical shock accident rather than by the results of his civil trial. On June 14, 1999, Mr. McCormack arrived for an appointment at Dr. Abrams' office in what Dr. Abrams described as a "highly agitated and disturbed" condition. Dr. Abrams testified with regard to this visit as follows: [H]e told me that he was tired of feeling bad. He didn't have any strength left; his nightmares were getting worse; he got really confused; and he had very violent dreams, which he couldn't get rid of. And at that point he states he had thoughts about killing himself. And sometimes he didn't have the strength to go on living. He felt like a prisoner in his own house. And he felt like he was being watched a[nd] followed. He considered shooting himself with a shotgun. In response, Dr. Abrams, after consulting Dr. Joyce Tobiasen, Mr. McCormack's psychologist, and with the consent of Mr. McCormack's wife, arranged for Mr. McCormack's immediate hospitalization at Charter Hospital for psychiatric therapy. The ALJ's findings, as adopted by the Commission, concerning Mr. McCormack's treatment at Charter are as follows: The hospitalization at Charter Hospital is causally related to Claimant's electrical shock injury. [Schell] argued that this medical care was necessitated by the stress from [Mr. McCormack]'s civil case. It was apparent that [Mr. McCormack]'s civil case was a stressor in his life but it is equally apparent that it was not the sole cause of his breakdown. The underlying component of his breakdown, which necessitated his hospitalization at Charter, was the combination of his post-traumatic stress disorder, coupled with his depression. These illnesses were the direct result of his electric shock injury as determined by his treating physicians. We first note that a large portion of Schell's argument appears to be directed toward the causation of Mr. McCormack's mental condition and physiological symptoms overall, which are discussed in Point I. The Commission's findings that Mr. McCormack's mental condition was caused by the electrical shock is not against the weight of the evidence. Schell's second point on appeal actually focuses on Mr. McCormack's hospitalization at Charter Hospital, so we limit our discussion to that issue.
Schell again insists that Commissioner Wrigley's dissenting opinion be adopted on the issue of additional medical costs for the Charter hospitalization. In support of its argument that the Commission's findings are against the weight of the evidence because Mr. McCormack's mental condition resulted from his civil trial, Schell again isolates small portions of the record. For example, Schell cites to parts of the testimony of Dr. Chris D. Fevurly, who evaluated Mr. McCormack for the second time on May 31, 2000. Dr. Fevurly opined that there was no causal relationship between Mr. McCormack's "symptom complex" and the electrical shock. Schell calls attention to Dr. Fevurly's notation in his report to the employer that he "[did] 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 [him] 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.(FN10) Rule 84.04(i)(FN11) dictates that "[a]ll statements of fact and argument shall have specific page references to the legal file or the transcript." As explained by the Eastern District, "[t]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[ing] 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 in this case, the ALJ "found that a sufficient causal connection of appellant's mental condition with the accident was not shown[,and] [t]he Commission adopted his findings." 691 S.W.2d at 412. Thus, on appeal, the evidence was reviewed in a light most favorable to the finding of no causation. The opposite is true in this case. We must review the evidence in a light most favorable to the majority of the Commission's findings of causation; so Schell's reliance upon Tibbs is not helpful. We have considered Schell's arguments and the evidence properly cited in support. The evidence relied upon by Schell does not tip the scales enough to merit reversal. When asked whether he had an opinion about whether the hospitalization at Charter was reasonable and necessary to treat Mr. McCormack for his work-related injury, Dr. Abrams replied, "I think it was absolutely mandatory, because he was suicidal, paranoid, and extremely disturbed." Likewise, Dr. Wahba testified that he believed, to a reasonable degree of medical certainty, that the Charter hospitalization was reasonably necessary to treat Mr. McCormack's work-related injuries of major depression, seizure disorder, post-traumatic stress disorder, and cognitive dysfunction. Dr. Hughes' disagreement with Dr. Wahba's findings, as relied upon by Schell, were explicitly found to be "less than credible" by the ALJ. The Commission adopted this finding. Additional evidence showed that Mr. McCormack began suffering from depression not long after the accident. The evidence also supported a finding that the problem escalated because he was not receiving the right treatment, and then, finally, his mental problems escalated to a point requiring hospitalization. Despite Schell's argument to the contrary, Mr. McCormack's complaints of psychological problems for several years without requiring hospitalization do not automatically preclude a finding that the Charter treatment was a result of the electrical shock. Schell also isolates small portions of Mr. McCormack's testimony in an attempt to show that he, too, acknowledged the treatment was necessitated by the civil trial. However, Mr. McCormack's testimony, which the
Commission found credible, contradicts this claim. At one point in the hearing before the ALJ, Schell's counsel specifically asked Mr. McCormack whether he had to go to Charter because of the outcome of his civil case, and Mr. McCormack replied, "No, sir." Further reference to every piece of evidence presented to relate Mr. McCormack's treatment at Charter to his electrical injury is unnecessary. Schell's arguments go primarily to matters of credibility, on which we defer to the Commission. Davis, 903 S.W.2d at 571. Having measured the evidence by the applicable standard of review, this court holds the Commission's finding that Mr. McCormack's treatment at Charter Hospital was causally related to his work injury, and that, therefore, Schell is responsible for the additional related medical costs, is supported by competent and substantial evidence on the whole record and is not against the overwhelming weight of the evidence. Id. Point II is denied. Point III: Unreasonable Termination of Benefits Under section 287.140.5 In its third point on appeal, Schell alleges that "[t]he majority of the . . . Commission erred in awarding costs because [section] 287.140.5 precludes compensation when claimant unreasonably refused to go to the Mayo Clinic for a thorough and complete evaluation and termination of benefits was not unreasonable." Section 287.210.1 states in relevant part: [a]fter an employee has received an injury he shall from time to time thereafter during disability submit to reasonable medical examination at the request of the employer, his insurer, the commission, the division or an administrative law judge, the time and place of which shall be fixed with due regard to the convenience of the employee and his physical condition and ability to attend. (Emphasis added.) This issue stems from Schell's arrangement for Mr. McCormack to be seen at the Mayo Clinic in Rochester, Minnesota, the week beginning on April 1, 1999. As explained by the Commission in its description of the circumstances surrounding the event: The record reflects that [Mr. McCormack]'s attorney wrote [Schell]'s attorney on several occasions explaining that the trip needed to be rescheduled due to [Mr. McCormack]'s situation which required a traveling companion, as well as arrangements for child care. Strangely, [Mr. McCormack] was also scheduled to see [Schell]'s expert on the day he returned, obviously causing a difficult or impossible time conflict. Because of [Mr. McCormack]'s failure or alleged "refusal", [Schell] and [its] insurer discontinued benefits. The Commission found that Mr. McCormack's "refusal" to go to the Mayo Clinic for an evaluation when scheduled "was neither an unreasonable refusal nor any refusal as contemplated by section 287.140.5." In addition, the Commission found that although Schell had not been unreasonable in its defense of all issues, "the discontinuation of the temporary total disability benefits [when Mr. McCormack was unable to go to the Mayo Clinic] was clearly unreasonable and arbitrary. Accordingly, [Mr. McCormack was] awarded costs pursuant to section 287.560." As a result, "[i]n weighing
the nature of the offensive behavior, and the expenses incurred, [the Commission found Schell and its insurer] should pay the costs of the deposition fees of the medical experts . . . in the amount of $5,162.50." Schell, again urging this court to consider Commissioner Wrigley's opinion to the contrary, argues that the Commission erred in so holding on two inter-related grounds: first, in finding that Mr. McCormack's refusal to go to the Mayo Clinic was not an unreasonable refusal under section 287.140.5,(FN12) and second, in finding, as a result, that Schell's termination of benefits based upon Mr. McCormack's failure to go to the Mayo Clinic was unreasonable and therefore awarding costs under section 287.560.(FN13) Schell's argument focuses primarily on the first ground, i.e., it maintains that, as a matter of law, Mr. McCormack's refusal to go to the Mayo Clinic was unreasonable under section 287.140.5. Schell maintains that this issue warrants de novo review because it involves a finding of ultimate fact reached by application of law. We disagree. The majority of its arguments are matters of factual re-argument and credibility issues. Schell seeks to attack determinations made by the Commission that were "reached [ ] by a process of natural reasoning from the facts alone" and are, therefore, granted deference. Davis, 903 S.W.2d at 571. For example, Mr. McCormack, his wife, his daughter, his father-in-law, and some of Mr. McCormack's neighbors and friends testified. Schell argues there was no explanation as to why one of those persons could not have accompanied Mr. McCormack to the Mayo Clinic, so Mr. McCormack's contentions that he had no traveling companion "[were] simply without merit." Schell also touts the reputation and attributes of the Mayo Clinic and argues that Mr. McCormack's "refusal" to go to the "world-renowned" Mayo Clinic is inconsistent with his desire to get better. With regard to the Commission's finding concerning the "difficult or impossible time conflict," Schell claims that the expert the Commission is referring to was hired in the civil trial and was not Schell's expert. In support of this argument, Schell again cites to another appeal previously before this court and the transcript therein. There is no citation to the record before the Commission, so these contentions will not be considered. For each of Schell's factual arguments, evidence to the contrary was before the Commission, and we review the award in a light most favorable to the contrary Commission findings. Pursuant to the standard of review set forth in Davis, the Commission's findings that Mr. McCormack did not unreasonably refuse treatment at the Mayo Clinic and that Schell's subsequent termination of benefits was unreasonable, thus warranting an award of costs, are supported by competent and substantial evidence on the whole record and are not against the overwhelming weight of the evidence. Id. Point III is denied. Point IV: Permanent and Total Disability In Schell's fourth and final point on appeal, it alleges that a majority of the Commission erred in finding Mr.
McCormack to be permanently and totally disabled. Specifically, Schell maintains that the Commission arbitrarily "cast aside unimpeached evidence as the preponderance, if not the overwhelming weight, of the evidence demonstrated that claimant was not permanently and totally disabled as a result of the injury." Section 287.020.7 states that "'total disability' . . . shall mean inability to return to any employment and not merely mean inability to return to the employment in which the employee was engaged at the time of the accident." (Emphasis in original.) As this court recently explained: "[t]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. The critical question then becomes whether any employer in the usual course of employment would reasonably be expected to hire this employee in his or her present physical condition." Karoutzos v. Treasurer of the State of Missouri, 55 S.W.3d 493, 499 (Mo. App. W.D. 2001) (quoting Reese v. Gary & Roger Link, Inc., 5 S.W.3d 522, 526 (Mo. App. E.D. 1999)). Schell argues Mr. McCormack did not suffer a permanent total disability as a result of the electrical shock. Once again, Schell urges this court to consider Commissioner Wrigley's dissenting opinion as probative. A large part of Schell's argument in Point IV is a re-argument of the causation issues previously discussed in this opinion and will not be revisited. To the extent that the argument differs, we do not feel it is necessary to set forth at length the evidence contrary to the Commission's findings as they are not against the weight of the evidence. Schell cites to the case of Garibay v. Treasurer of Missouri, 930 S.W.2d 57, 61 (Mo. App. E.D. 1996), as mandating that "competent, substantial and undisputed evidence of an unimpeached witness can not [sic] be arbitrarily cast aside." Although Schell's citation to Garibay is correct, a large portion of Schell's argument again lacks citation to the record in violation of Rule 84.04(i), and we perceive no indication that the Commission "arbitrarily cast aside" any evidence. To the contrary, the ALJ's fourteen pages of Findings of Fact and Conclusions of Law, which were largely incorporated into the Commission's award, show that the vast amount of evidence was carefully considered. The primary issues raised by Schell ultimately involve questions of fact, credibility and conflicting medical opinions, on which matters we defer to the Commission. Davis, 903 S.W.2d at 571. Point IV is denied. Conclusion The record contains sufficient competent and substantial evidence to support the Commission's award, and the award is not against the weight of the evidence. Accordingly, we affirm. Footnotes:
FN1.Schell's workers' compensation insurance carrier, ITT Hartford, also jointly appeals from the Commission's award. For the sake of simplicity, we will refer to Schell and ITT as "Schell" with the understanding that ITT makes the same arguments. FN2.Statutory references are to RSMo 2000. FN3.The record on appeal contains twenty-five volumes of transcripts, medical records, and other documentary evidence consisting of more than 6,350 pages submitted to the Commission. FN4.These statutes are discussed more fully in Point III. FN5.Commissioner Christian Wrigley filed a dissenting opinion in which he stated that after reviewing all of the evidence,"[he did] not find [McCormack] to be permanently and totally disabled on account of this injury; nor did [he] find the additional medical expenses or costs to have been appropriately awarded," so he would reverse the ALJ's decision as to permanent total disability and costs against the employer. As discussed repeatedly herein, Schell relies heavily upon this dissent in arguing that the Commission's award is against the weight of the evidence. FN6.Chapter 287 of the Missouri Revised Statutes is Missouri's "Workers' Compensation Law." FN7."Physiological" is defined as "being in accord with or characteristic of the normal functioning of a living organism." The American Heritage Dictionary of the English Language (4th ed. 2000), available at http://www.dictionary.com/search?q=physiological. FN8.An EEG, or electroencephalogram, is defined in relevant part as "[a] graphic record of the electrical activity of the brain." American Heritage Dictionary of the English Language, available at http://www.dictionary.com/search?q=electroencephalogram%20%20%20. FN9.The supreme court's opinion is reported as Wells v. Brown, 33 S.W.3d 190 (Mo. banc 2000). FN10.In support of its argument, Schell refers to the trial transcript in another appeal that was previously before this court by citing its docket number and a trial transcript page number. However, Schell made no motion to transfer the transcript from that case and incorporate it into this appeal. Moreover, that transcript does not appear to have been before the Commission. We will not consider evidence that was not presented to the Commission. See Cahall v. Riddle Trucking, Inc., 956 S.W.2d 315, 320 (Mo. App. E.D. 1997) (explaining that "[t]he only record we review is the record certified by the commission as containing all documents and papers on file in the matter."). FN11.Rule references are to the Missouri Rules of Civil Procedure (2002). FN12.Section 287.140.5 states in relevant part: No compensation shall be payable for the . . . disability of an employee, if and insofar as the . . . disability may be caused, continued or aggravated by any unreasonable refusal to submit to any medical or surgical treatment or operation, the risk of which is, in the opinion of the division or the commission, inconsiderable in view of the seriousness of the injury. FN13.Section 287.560 states in relevant part, "if the division or the commission determines that any proceedings have been brought, prosecuted or defended without reasonable ground, it may assess the whole cost of the proceedings upon the party who so brought, prosecuted or defended them." See Stillwell v. Universal Constr. Co., 922 S.W.2d 448 (Mo. App. W.D. 1996) (relied upon by the Commission in evaluating the issue of costs assessed against Schell). Separate Opinion: None This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.