concurring.
I concur with the holding of Judge Hanna that under our standard of review this court is compelled to affirm the Commission because there is substantial evidence in the record which supports the Commission’s decision. Johnson v. City of Kirksville, 855 S.W.2d 396, 398 (Mo.App.1993). This is true even though we might have reached a different result if hearing the case in the first instance. Id. I also concur in the denial of Mr. Wilson’s claim that he is entitled to have the cause remanded for consideration of newly discovered evidence.
The findings of the administrative law judge, as adopted by the Commission, identify as the critical issue whether or not there is a relationship between the physical activity of Mr. Wilson and his myocardial infarction. In reaching his conclusion that there is no relationship, the ALJ finds that “there is no medical literature which supports the claimant’s theory of causation, that being heavy physical exertion as the cause or onset of the claimant’s heart attack, and the doctors indicated that medical literature indicates the vast majority of heart attacks occur without attending excessive physical exertion.”
As noted by Judge Ellis in his dissenting opinion, the studies3 which Mr. Wilson denotes as “newly discovered evidence” identify a strong correlation between an episode of heavy physical exertion and the transient risk of myocardial infarction during the physical exertion and in the one hour period subsequent thereto. In contrast with Judge Hanna, I believe that such evidence is so material it would probably have produced a different result if the evidence was before the Commission, is not cumulative and could be utilized in a manner which would not impeach the character or credibility of a witness. Nevertheless, the cases cited by Judge Ellis do not convince me that Missouri law permits an appellate court to remand a civil case for consideration of “newly discovered evidence” which is presented for the first time on appeal.
. The studies are Murray A. Mittleman et al., Triggering of Acute Myocardial Infarction by Heavy Physical Exertion, 329 New Eng.J.Med. 1677 (1993), and Stefan N. Willich et al., Physical Exertion as a Trigger of Acute Myocardial Infarction, 329 New Eng.J.Med. 1684 (1993).